Soukhona v. Attorney General of the United States ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-4-2009
Soukhona v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3193
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3193
___________
IBRAHIMA SOUKHONA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A077-835-405)
Immigration Judge: Honorable Kenneth Josephson
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 1, 2009
Before: FISHER, JORDAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed: June 4, 2009)
___________
OPINION
___________
PER CURIAM
Ibrahima Soukhona, a native and citizen of Mauritania, petitions for review from a
decision of the BIA denying his applications for asylum and withholding of removal. For
the following reasons, we will deny the petition for review.
Soukhona was admitted to the United States on a student visa on August 21, 1999.
His visa authorized him to enroll at Ohio Dominican College, but he failed to enroll at the
school. Instead, he filed an affirmative application for asylum on November 30, 1999.
Soukhona claimed that the Mauritanian government repeatedly arrested and detained him
on the basis of his participation in student strikes, his opposition to slavery in Mauritania
and his race. The government initiated removal proceedings and issued a Notice to
Appear on June 27, 2003, charging Soukhona with removability on the basis of failing to
comply with the conditions of his admission under INA § 237(a)(1)(C)(i). (A.R. 476-77.)
At a master calendar hearing on September 30, 2005, Soukhona was represented by
counsel and conceded removability. On July 6, 2006, with the assistance of new counsel,
he filed a supplemental statement in support of his application. A merits hearing was
scheduled for October 4, 2006. On that date, Soukhona and his counsel requested that his
counsel be permitted to withdraw from the representation. The Immigration Judge
informed Soukhona that he could proceed with his current counsel or represent himself at
the hearing, but that he would not continue the hearing to permit Soukhona to find new
counsel. Soukhona stated that he was prepared to proceed pro se, and the IJ granted
counsel’s request to withdraw.
Proceeding without representation by counsel, Soukhona testified that he was
detained on at least four separate occasions by the Mauritanian government. The first
incident was in 1987, when Soukhona was arrested as a high school student for
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participating in a student strike. (A.R. 75.) He was detained for two weeks and released
after he signed papers regarding the arrest. As the public school did not permit Soukhona
to continue his studies after this incident, he began attending a private school. The
second incident was in 1991, when “White Moor” policemen detained him and several of
his black Mauritanian friends who were returning from a trip to Senegal. The policemen
allegedly detained them, forced them to undress and ridiculed them because of their race.
In March 1994, Soukhona was arrested for joining an association of black students at the
National Public University of Mauritania. (A.R. 77-78.) He was arrested and detained
from March 29, 1994, to April 30, 1994. After signing papers regarding his arrest,
Soukhona was released. The University subsequently expelled Soukhona, and Soukhona
began suffering from depression.
In June 1994, Soukhona presented a paper at an anti-slavery conference in
Mauritania. (A.R. 84-85.) He was arrested and detained for twenty days for attracting
negative publicity about slavery in Mauritania, which persists despite its official abolition
in 1981. Following his release, Soukhona joined a group known as “SOS Slavery,” which
fought the enslavement of blacks by White Moors. (A.R. 82.) Soukhona then obtained a
Mauritanian passport and left his country to study in Morocco on September 5, 1994. He
studied in Morocco until 1997. Upon returning to Mauritania, Soukhona re-joined SOS.
Soukhona testified that the organization was formed in 1995, but that he had joined the
group in 1994. (A.R. 83.) When the IJ asked for clarification, Soukhona explained that
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the organization existed in some form in 1994, but was “officially recognized” by the
government in 1995. When the IJ asked why the government would officially recognize
an organization opposed to its policies, Soukhona stated, “Because you can no longer hide
things.” (A.R. 83.) Soukhona was arrested again detained for two weeks in November
1997 for presenting an article at a conference. (A.R. 90-91.) He did not submit copies of
the article with his application. Soukhona continued to work in Mauritania as a tutor,
undisturbed, until his departure for the United States in 1999. He testified that he was
“doing things in hiding,” although he held a full-time job and lived openly. (A.R. 98.)
He testified that he speaks with his family about once every two months, and they have
not mentioned that government officials are looking for him. (A.R. 100.) He also
testified that he has not sought any medical treatment for his depression, although he has
tried herbal remedies. Since coming to the United States, Soukhona has attended one
protest, back in 2002, regarding the issue of slavery.
At the end of his testimony, Soukhona requested counsel. The IJ denied his
request for counsel. The IJ then made an adverse credibility determination and denied
Soukhona all relief. The IJ based his adverse credibility determination on the following
inconsistencies or omissions: (1) Soukhona’s failure to list his 1987 and 1991 detentions
in his initial written asylum application; (2) Soukhona’s ability to enter and exit
Mauritania with official papers without incident; (3) his claim that he was arrested in
November 1997 for a period of twenty days, not one week in October 1997, as stated in
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his supplemental statement; (4) petitioner’s ability to remain in Mauritania from 1997 to
1999 without incident, and his improbable explanation that he was “in hiding” while
working full-time; (5) and that petitioner claims to have encountered problems advocating
a position that is identical to the government’s official position on the issue of slavery.
Soukhona appealed, but failed to file a brief with the BIA. He also apparently
filed a motion to reopen based on his prior counsel’s alleged ineffective assistance.1 The
BIA denied Soukhona’s motion to reopen and affirmed the IJ’s decision on the basis that
the IJ’s adverse credibility determination was not clearly erroneous, that Soukhona had
not stated a claim for ineffective assistance of counsel, that he had not demonstrated that
he had been denied an opportunity to be represented by counsel, and that the IJ’s denial of
a continuance was proper.2 Soukhona filed a timely petition for review.
We have jurisdiction to review a final order of removal under 8 U.S.C. §
1252(a)(1). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir. 2001). “[W]e review the
IJ’s opinion to the extent the BIA relied upon it.” Lin v. Att’y Gen., 543 F.3d 114, 119
(3d Cir. 2008). We will uphold an IJ’s adverse credibility determination if supported by
substantial evidence. Chukwu v. Att’y Gen., 484 F.3d 185, 190 (3d Cir. 2007). As
Soukhona filed his asylum application before the passage of the REAL ID Act, only
1
The administrative record does not contain a motion to reopen.
2
The BIA determined that Soukhona had waived his claim under the Convention
Against Torture because he failed to raise the claim on appeal to the BIA. Therefore,
Soukhona’s CAT claim is not before us.
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discrepancies involving the “heart of the asylum claim” may support an adverse
credibility finding. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002) (internal quotation
omitted).
Soukhona’s conflicting statements regarding the length of his 1997 detention are
substantial evidence supporting the IJ’s adverse credibility determination. Because this
inconsistency relates to the nature of the persecution he allegedly experienced, it goes to
the heart of his asylum claim. See Xie v. Ashcroft, 359 F.3d 239, 246 (3d Cir. 2004)
(petitioner’s inconsistent statements regarding detention after the birth of his second child
went to the heart of his asylum claim). Combined with his failure to mention his 1987
and 1991 detentions in his written application,3 and his ability to travel in and out of
Mauritania while studying in Morocco and to live in Mauritania unharmed for two years
before leaving for the United States, we believe that substantial evidence supports the IJ’s
adverse credibility determination.
Soukhona also contends that he was denied counsel of his choice, and that the IJ
improperly denied his request for a continuance to enable him to find a new lawyer after
granting his attorney’s motion to withdraw. An IJ may “grant a motion for a continuance
for good cause shown.” 8 C.F.R. § 1003.29. We review an IJ’s decision to deny a
3
Soukhona’s initial application was filed several months after Soukhona arrived in the
United States. His statements were not elicited in a coercive environment and are not
comparable to airport interview statements. Cf. Balasubramanrim v. I.N.S., 143 F.3d 157,
162-63 (3d Cir. 1998).
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continuance for an abuse of discretion. Hashmi v. Att’y Gen., 531 F.3d 256, 259 (3d Cir.
2008). “[T]he mere inability to obtain counsel does not constitute a violation of due
process.” Ponce-Leiva v. Ashcroft, 331 F.3d 369, 376 (3d Cir. 2003).
The record reveals that Soukhona had counsel from at least September 2004 until
October 4, 2006. At the merits hearing, Soukhona’s attorney sought to withdraw and the
IJ granted the request. (A.R. 64-65.) However, the IJ noted that the case had been
pending for three years and gave Soukhona the choice of proceeding pro se or being
represented by counsel of record. Soukhona chose to proceed pro se because neither he
nor his attorney wished for his attorney to represent him at the hearing. At the close of
his testimony, Soukhona requested counsel.
Given that Soukhona had counsel during most of the proceedings and did not seek
counsel’s withdrawal until the date of the merits hearing or shortly before it, we agree that
Soukhona was not denied counsel in violation of due process, and that the IJ did not
abuse his discretion by denying a continuance so that he could find new counsel.
Although Soukhona argues in his brief that he felt “compelled” to represent himself when
his counsel sought to withdraw, we discern no principled distinction between his situation
and that facing the petitioner in Ponce-Leiva. In that case, petitioner’s attorney had eight
months’ notice of the date of the merits hearing; he requested a continuance without
offering any reason, which was denied, and then failed to appear for the merits hearing.
The petitioner was forced to proceed pro se and claimed on appeal that he had been
7
denied counsel in violation of due process. We ruled that there was no due process
violation under those circumstances because petitioner had counsel, but his “attorney
simply failed to come through for him.” Ponce-Leiva, 331 F.3d at 376. Here,
Soukhona’s counsel sought to withdraw on the day of the merits hearing, apparently at
Soukhona’s behest. Where the petitioner seeks to remove counsel for unstated reasons on
the day of a merits hearing, the date of which had been set over a year before, denial of a
continuance to permit the petitioner to seek new counsel does not constitute a denial of
counsel and does not violate due process.
Soukhona does not raise in his informal brief any argument regarding the BIA’s
decision denying his motion to reopen due to allegedly ineffective assistance of counsel.
Accordingly, we deem that claim waived. Anspach v. City of Phila., 503 F.3d 256, 259
n.1 (3d Cir. 2007).
For these reasons, the petition for review will be denied.
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