Wane v. Attorney General of the United States , 475 F. App'x 448 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 07-2489
No. 07-4212
No. 08-1463
____________
SEYDOU NOUROU WANE,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A98-582-862)
Immigration Judge: Rosalind K. Malloy
____________
Submitted Under Third Circuit LAR 34.1(a)
April 13, 2012
Before: McKEE, Chief Judge and HARDIMAN, Circuit Judges
and JONES, II, * District Judge.
(Filed: April 17, 2012)
*
The Honorable C. Darnell Jones, II, District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Seydou Nourou Wane petitions for review of the Board of Immigration Appeal’s
final order of removal, denial of his motion to reopen proceedings, and denial of his
motion for reconsideration. For the reasons that follow, we will deny his petitions.
I
Because we write for the parties, who are well acquainted with the case, we
recount only the essential facts and procedural history.
Wane is a Mauritanian citizen who entered the United States in May 2003 on a
student visa. After Wane stopped attending school in August 2003, the Government
charged him as removable for failing to maintain status. Wane ultimately conceded
removability but applied for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). Wane’s application alleged persecution in
Mauritania on the basis of his race, political opinion, and membership in a political
organization known as the Young Blacks.
The immigration judge (IJ) ruled that Wane’s asylum application was untimely
because he did not file it within a reasonable time after falling out of status. The IJ also
denied Wane’s applications for withholding of removal and CAT protection, finding that
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Wane was not likely to be persecuted or tortured if he returned to Mauritania. In doing
so, the IJ explained that critical parts of Wane’s testimony were uncorroborated and not
credible.
The Board of Immigration Appeals (BIA) affirmed, agreeing that Wane’s asylum
application was untimely. With respect to the remaining claims, the BIA concluded that
the IJ’s credibility finding “appear[ed] somewhat unclear, as [the IJ] observed that the
respondent testified consistently with his asylum application and affidavit, yet note[d]
several significant contradictions and implausibilities.” Nevertheless, the BIA reasoned
that it did not have to “definitively decide this credibility issue, since even if [Wane was]
credible, his claim [would fail] based on a failure of a burden of proof, for the reasons set
forth by the [IJ] in [her] decision, particularly in light of the almost complete lack of
reasonably available corroborating evidence in this case.” The BIA also noted that Wane
had presented no arguments that would convince it to reverse the IJ’s determination
regarding CAT protection. Finally, the BIA found “no merit to [Wane’s] allegation of
bias by the [IJ] because . . . [Wane’s] arguments essentially amount[ed] to a disagreement
with the way in which the [IJ] weighed and evaluated the evidence before [her].” Wane
filed a timely petition for review.
In May 2007, approximately one month after the BIA’s ruling, Wane married a
United States citizen who filed an I-130 visa petition on his behalf. In June 2007, Wane
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filed a motion to reopen his proceedings, requesting that his case be remanded pending
approval of his I-130 petition. The BIA denied Wane’s motion, and he filed a timely
petition for review. Wane subsequently sought reconsideration of the BIA’s decision in a
“request to accept evidence by certification or sua sponte.” The BIA denied Wane’s
motion on the basis that he had shown no factual or legal defect in its earlier decision
denying his motion to reopen. Moreover, to the extent Wane sought to reopen yet again
by presenting new evidence, the BIA denied his motion as both time- and number-barred.
Finally, the BIA declined to reopen proceedings sua sponte. Wane filed a third timely
petition for review, and we consolidated his three petitions.
II 1
We consider only the BIA’s rulings, but we review the IJ’s reasoning to the extent
it was adopted by the BIA. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006).
We review legal conclusions de novo, Huaw Wu v. Att’y Gen. of U.S., 571 F.3d 314, 317
(3d Cir. 2009), but we review factual findings, including conclusions regarding past
persecution, under the “substantial evidence” standard, Chavarria, 446 F.3d at 515,
treating them as “conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B). Finally, we review the BIA’s denial
of motions to reopen and motions to reconsider for abuse of discretion. Pllumi v. Att’y
1
We have jurisdiction over Wane’s petitions pursuant to 8 U.S.C. § 1252.
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Gen. of U.S., 642 F.3d 155, 158 (3d Cir. 2011). The BIA abuses its discretion only when
it acts in a manner that is “‘arbitrary, irrational, or contrary to the law.’” Guo v. Ashcroft,
386 F.3d 556, 562 (3d Cir. 2004) (quoting Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994)).
III
We begin with Wane’s first petition for review, which appeals the denial of his
applications for asylum, withholding of removal, and CAT protection. Wane argues that
the BIA erred in finding his asylum application time-barred because he demonstrated
“extraordinary circumstances” to excuse his failure to file within the prescribed one-year
period. See 8 U.S.C. § 1158(a)(2) (imposing a one-year limit unless the alien
demonstrates changed or extraordinary circumstances); 8 C.F.R. § 208.4(a)(5) (defining
“extraordinary circumstances”). We lack jurisdiction to review the BIA’s extraordinary-
circumstances determination, however, because it does not raise a “question of law.”
Jarbough v. Att’y Gen. of U.S., 483 F.3d 184, 189 (3d Cir. 2007).
Wane also argues that the BIA wrongly denied his applications for withholding of
removal and CAT protection. To establish eligibility for withholding of removal, Wane
must “establish by a ‘clear probability’ that [his] life or freedom would be threatened in
the proposed country of deportation.” Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.
2003) (citing Janusiak v. INS, 947 F.2d 46, 47 (3d Cir. 1991)). “‘Clear probability’
means that it is ‘more likely than not’ that an alien would be subject to persecution.”
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Long Hao Li v. Att’y Gen. of U.S., 633 F.3d 136, 140 (3d Cir. 2011) (quoting Zubeda, 333
F.3d at 469). If an alien can establish that he suffered past persecution in the country of
removal, there is a rebuttable presumption that he will be subjected to future persecution
if removed to that country. Garcia v. Att’y Gen. of U.S., 665 F.3d 496, 505 (3d Cir.
2011). Finally, an applicant for CAT protection must show “‘that it is more likely than
not that [he] would be tortured if removed to the proposed country of removal.’” Silva-
Rengifo v. Att’y Gen. of U.S., 473 F.3d 58, 64 (3d Cir. 2007) (quoting Sevoian v. Ashcroft,
290 F.3d 166, 174–75 (3d Cir. 2002)).
The BIA found the IJ’s credibility determination unclear but concluded that even if
Wane were credible, he failed to meet his burden of proof because of the “almost
complete lack of reasonably available corroborating evidence in this case.” The IJ found
insufficient evidence to corroborate Wane’s claims, noting that Wane produced no
evidence to establish two critical facts: (1) that he was a university student in Nouakchott,
and (2) that his father was an imam or a marabout who was killed by local officials.
The BIA’s finding that Wane failed to meet his burden of proof was supported by
substantial evidence. “The testimony of the applicant, if credible, may be sufficient to
sustain the burden of proof without corroboration.” 8 C.F.R. § 1208.16(b). Nevertheless,
corroboration may reasonably be expected for “‘facts which are central to [his] claim and
easily subject to verification.’” Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001)
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(quoting Matter of S-M-J, 21 I. & N. Dec. 722, 725 (BIA 1997)). “[F]ailure to produce
corroborating evidence may undermine an applicant’s case where (1) the IJ identifies
facts for which it is reasonable to expect the applicant to produce corroboration, (2) the
applicant fails to corroborate, and (3) the applicant fails to adequately explain that
failure.” Chukwu v. Att’y Gen. of U.S., 484 F.3d 185, 192 (3d Cir. 2007) (citing, inter
alia, Abdulai, 239 F.3d at 554)). 2
In this case, the IJ properly engaged in the Abdulai analysis. The IJ repeatedly
noted that Wane had not corroborated his status as a university student in Nouakchott,
which was significant because “he was saying that he was a student and . . . active in
politics as a student.” Wane’s student status is central to his claim because he contends
he was harassed and detained after protesting conditions for students and speaking
publicly as a leader of the Young Blacks.
According to the IJ, Wane could have corroborated his student status by producing
a university transcript. The evidence Wane produced, however, did not corroborate his
story. Wane provided his high school transcripts but conceded that his university
transcripts remained in Mauritania. Moreover, Wane’s passport failed to indicate he was
2
The REAL ID Act gave further guidance as to when corroboration is required,
see 8 U.S.C. § 1158(b)(1)(B)(ii), but it does not apply here because Wane filed his
application before May 11, 2005, see Chukwu, 484 F.3d at 192 n.2. In any event, the
REAL ID Act did not change our rules regarding the IJ’s duty to develop an applicant’s
testimony in accord with the Abdulai steps. Id. at 192.
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a student, and his Mauritanian identification card did not list an address in Nouakchott.
Wane tried to prove that he participated in student activities by providing a photograph of
him holding a microphone, but nothing in the photograph indicates where it was taken.
Finally, when asked to produce materials proving the existence of the Young Blacks,
Wane claimed that all such materials have been lost or destroyed.
Indeed, Wane conceded that his university transcripts were available and could be
obtained. His only explanation for failing to provide evidence of his status as a university
student was that he was not aware he would need it and that he “was probably intending
to rely upon people coming [to the hearing] and explaining that . . . they knew he was in
university.” (Id.) We agree with the IJ that this was an insufficient explanation. As the
IJ noted, Wane’s student activities were central to his testimony, he had nearly a year to
gather the evidence needed to verify his account, and requesting a transcript would not
have alerted Mauritanian authorities to his asylum application. For these reasons, we hold
that the IJ’s corroboration determination was supported by substantial evidence in the
record. 3
3
Because the IJ did not err in finding that Wane failed to corroborate his student
status, which was central to his claim and easily subject to verification, Abdulai, 239 F.3d
at 554, we need not consider the IJ’s finding that Wane failed to corroborate his claim
about his father being an imam or a marabout who was killed by local officials.
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In addition to claiming that the BIA and the IJ erred in finding a lack of
corroboration, Wane argues that they were biased in their evaluation of the evidence and
“considered the evidence in a subjective manner.” This claim is not supported by the
record. Wane simply disagrees with how the BIA and the IJ weighed the evidence he
submitted, and there is no indication that they failed to do so objectively. As a result, we
will deny Wane’s first petition for review.
IV
Wane’s second petition appeals the BIA’s denial of his motion to reopen
proceedings. The BIA declined to reopen because Wane failed to present clear and
convincing evidence indicating a strong likelihood that his marriage was bona fide, which
was necessary for establishing prima facie eligibility for adjustment of status. See Matter
of Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002). In support of his motion,
Wane filed only a medical insurance enrollment form along with a statement that he
would submit “additional bona fides as they become available.” The BIA did not abuse
its discretion in denying Wane’s motion based on the meager evidence he provided.
Wane argues that the BIA violated his due process rights when it denied his
motion to reopen only sixty-six days after it was filed. According to Wane, “[t]his might
be a new world record for the BIA decision making process,” and the BIA’s speed
“generated [an] injustice.” Wane contends that he and his wife “took their duty to
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produce evidence very seriously and did everything in their power to satisfy the BIA.”
He also claims that the BIA violated the Administrative Procedure Act by failing to notify
him that it was going to deny his motion. According to Wane, “[h]ad the BIA notified
[him] that a decision would be made at a particular time or promulgated regulations
indicating when decisions would be made or when documents . . . would be due, then [he]
would have known the [timeline] within which he had to act.”
We disagree with Wane’s novel argument that the BIA’s expeditious decision
violated his right to due process. Wane cites no authority to support his claim, and we
have found none. Cf. Reynoso-Lopez v. Ashcroft, 369 F.3d 275, 284 (3d Cir. 2004)
(“This result would conflict with the INS’ goal of having expeditious removal
proceedings.”). Nor does Wane provide any authority supporting his view that the BIA
must give advance notice of when it intends to rule on a motion to reopen. Motions to
reopen for the purpose of submitting applications for relief must be “accompanied by . . .
all supporting documentation.” 8 C.F.R. § 1003.2(c). When Wane filed his motion with
almost no documentation, the BIA was free to act on the record as submitted.
Accordingly, we will deny Wane’s third petition for review.
V
Wane’s third petition for review appeals the BIA’s denial of his motion to
reconsider. Wane claims the BIA abused its discretion and violated his due process rights
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by failing to reconsider its decision not to reopen his proceedings. Again, Wane cites no
cases in support of his due process argument. Instead, he claims only that the BIA should
have reconsidered its decision because he mailed documents proving the bona fides of his
marriage on the same day that his motion to reopen was denied. Yet Wane’s subsequent
mailing of documentation does not establish that the BIA committed any “errors of fact or
law in [its] prior . . . decision.” 8 C.F.R. § 1003.2(b). Given the scant evidence submitted
at the time, the BIA found that Wane had failed to meet his burden of showing prima
facie eligibility for adjustment of status. The BIA did not abuse its discretion in denying
his motion.
To the extent Wane instead seeks to reopen proceedings in light of the new
documentation he submitted, the BIA did not abuse its discretion in denying his motion as
both untimely and number-barred. 8 C.F.R. § 1003.2(c)(2). Finally, Wane argues that the
BIA should have reopened his proceedings sua sponte because he has shown “exceptional
circumstances” by doing “everything in his power to satisfy the BIA.” This argument
fails because we lack jurisdiction to review the BIA’s discretionary decision not to reopen
sua sponte. Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003).
VI
For the reasons stated, we will deny Wane’s petitions for review.
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