Salama v. Atty Gen USA ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
10-4-2004
Salama v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1374
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 03-1374
MONA MOSAD SALAMA,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA,
Respondent
On petition for review of a final order
of the Board of Immigration Appeals
File No: A76-132-596
__________________________________
Submitted pursuant to Third Circuit LAR 34.1(a)
on September 30, 2004
Before: RENDELL, FUENTES,
and SMITH, Circuit Judges
(Filed: October 4, 2004)
____________________
OPINION OF THE COURT
_____________________
Smith, Circuit Judge.
Mona Mosad Salama petitioned for review of the Board of Immigration Appeal’s
(“BIA”) summary affirmance of the Immigration Judge’s (“IJ”) denial of her application
for asylum, withholding of removal, and relief under the Convention Against Torture.1
We will affirm the decision of the BIA.
I.
Salama is an Egyptian national and citizen of Egypt. She was admitted to the
United States on a nonimmigrant visitor visa on August 24, 1997, along with her niece
and nephew.2 The Immigration and Naturalization Service (“INS”)3 issued a Notice to
Appear, charging Salama with being removable on May 5, 1999. Salama conceded
removability, but requested, on the basis of religious persecution, asylum, withholding of
removal, and protection under the Convention Against Torture.4 The IJ determined that
Salama was not credible, had deliberately lied, and thus denied her application. The BIA
summarily affirmed without opinion.
Where, as here, the BIA employs its streamlining procedures and affirms the IJ
without opinion, “we review the IJ’s opinion and scrutinize its reasoning.” Dia v.
1
The IJ had jurisdiction pursuant to 8 C.F.R. § 208.2(b) (2001). The BIA had appellate
jurisdiction pursuant to 8 C.F.R. § 3.1(b) (2002). We exercise jurisdiction pursuant to §
242(b) of the Immigration and Nationality Act, 8 U.S.C. § 1252(b).
2
The nature of the asylum petitions of Salama’s niece and nephew were extensively
debated before the IJ. Their appeals to the BIA, however, were withdrawn.
3
The INS is now the Bureau of Citizenship and Immigration Services within the
Department of Homeland Security. 6 U.S.C. § 271 (Supp. 2004).
4
Because Salama did not raise her claim for relief under the Convention Against
Torture on appeal, the issue is waived. Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.
1993).
2
Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). Our review is limited to
determining whether there is substantial evidence to support the IJ’s decision. Id. at 247.
This requires that we determine whether a reasonable fact finder could make the same
determination as the agency based on the administrative record. If so, there is substantial
evidence to support the finding. Dia, 353 F.3d at 249.
In Dia, we reiterated that the substantial evidence standard also applies to adverse
credibility determinations. Id.; Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). The
focus is on whether the IJ’s adverse finding “is supported by evidence that a reasonable
mind would find adequate” to support that determination. Dia, 353 F.3d at 249. Specific
reasons should be given for finding a witness not credible, id., and those “reasons must
bear a legitimate nexus to the finding.” Balasubramanrim v. INS, 143 F.3d 157, 162 (3d
Cir. 1998). While inconsistencies may warrant an adverse credibility determination, the
inconsistency should “involve the ‘heart of the asylum claim.’” Gao, 299 F.3d at 272(quoting Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir. 1990)).
II.
An applicant for asylum may establish her eligibility by demonstrating, inter alia,
that she either suffered past persecution or has a well-founded fear of persecution on the
basis of her religion. 8 U.S.C. § 1101(a)(42). The burden is upon the applicant to
establish that she “qualifies as a refugee under the statute.” Obianuju Ezeagwuna v.
Ashcroft, 301 F.3d 116, 126-27 (3d Cir. 2002).
3
Here, Salama claimed that she and her family had been subjected to several vicious
attacks because they were Coptic Christians. She initially claimed in her application for
asylum that, because they were Coptic Christians, her sister had been beaten to death, her
brother killed, and her mother so severely injured that she eventually died as a result of
her injuries. Her father, according to Salama, had also been beaten, and died at home
after being discharged from a hospital because staff members observed Salama praying at
his bedside. Although Salama’s testimony before the IJ was consistent with her
application, the IJ pointed out that it was at odds with the testimony of other family
members and documentary evidence. The IJ noted that Salama’s brother testified that
their sister died because she was burned, their brother died from injuries sustained at
work when he fell in a hole at a construction site, and their mother was injured in an
automobile accident. Documentary evidence indicated that Salama’s father died, contrary
to Salama’s testimony, in the hospital. Upon being confronted with these inconsistencies,
Salama was unable to explain the disparities.
We are satisfied that the IJ’s adverse credibility determination is based upon
substantial evidence. The IJ provided specific reasons for finding Salama’s testimony
incredible, and these are supported by the record.
Furthermore, we need not address Salama’s claim that the IJ improperly
consolidated her application with that of her niece and nephew because that issue was not
4
raised in her appeal to the BIA.5 Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.
2003); Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir. 1989).
For the foregoing reasons, we will affirm the order of the BIA denying Salama’s
application for asylum, withholding of removal and relief under the Convention Against
Torture.
5
Salama also challenged the BIA’s use of its streamlining regulations. As we
explained in Dia, the streamlining regulations are neither contrary to the Immigration and
Nationality Act nor offensive to the Due Process Clause. 353 F.3d at 245.
5