Sidi Ahmed Ould Mohamed El Moctar v. Eric Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0707n.06
No. 10-4542
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Oct 11, 2011
SIDI AHMED OULD MOHAMED EL )
MOCTAR; ZEINEBOU MINT YESLEM ) LEONARD GREEN, Clerk
)
Petitioners, ) ON PETITION FOR REVIEW FROM THE
) U N IT E D S T A T E S B O A R D O F
v. ) IMMIGRATION APPEALS
)
ERIC H. HOLDER, JR., Attorney General, )
)
Respondent. )
Before: GIBBONS, ROGERS, and COOK, Circuit Judges.
COOK, Circuit Judge. Sidi Ahmed Ould Mohamed El Moctar and his wife, Zeinebou Mint
Yeslem, (“Petitioners”) seek review of the Board of Immigration Appeals’ (“BIA”) decision
affirming an Immigration Judge’s (“IJ”) denial of (1) their motion for a continuance and (2) their
application for asylum and withholding of removal. For the reasons that follow, we deny the
petition.
I.
From our review of the parties’ briefs and the administrative record, we confirm that the IJ’s
decision provides an accurate synopsis of Petitioners’ case:
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The respondents are a husband and wife who are natives and citizen[s] of
Mauritania; the male respondent is 46 years old, and the female respondent is 26
years old. The male respondent entered the United States on January 2, 1999, as a
nonimmigrant foreign government official. [See 8 U.S.C. § 1101(a)(15)(A)(ii).] He
was issued the nonimmigrant visa at the U.S. Embassy in Nouakchott on November
16, 1998, in order to attend the U.N. World Television Forum in New York City.
The female respondent entered the United States on March 25, 2001, as a
nonimmigrant visitor for pleasure. She also obtained a nonimmigrant visa at the U.S.
Embassy in Nouakchott, because she was accompanying a Mauritanian national who
was traveling to the United States for medical treatment. On November 28, 2001, the
Immigration and Naturalization Service (“INS,” now known as the Department of
Homeland Security, or “DHS”) issued Notices to Appear (“NTA”) (Form I-862)
against the respondents.
The respondents through counsel, have admitted that all factual allegations
in the respective NTAs are true and correct, and that they are deportable as charged.
[See 8 U.S.C. § 1229a(c)(3).] The respondents declined to designate a country in the
event of removal, and the Court has directed Mauritania.
On or about October 1, 2001, the lead respondent filed an application for
asylum with the INS, in which he included his spouse.[1] Under [8 U.S.C. §
1158(a)], the respondent’s asylum application also constitutes a request for
withholding of removal pursuant to [8 U.S.C. § 1231(b)(3)]. In addition, the asylum
application constitutes a request for protection under Article 3 of the Convention
Against Torture. [See 8 C.F.R. § 1208.12.] The male respondent indicated that he
does not have a valid passport or other travel documentation, so he cannot show
eligibility for post-conclusion voluntary departure. See 8 C.F.R. § 1240.26(c)(2).
The female respondent is not eligible for post-conclusion voluntary departure under
[8 U.S.C. § 1229c(b)(1)(A)], because she was not physically present in the United
States for a period of 1 year when the NTA was served on her on December 5, 2001.
1
In his analysis, the IJ noted that although El Moctar included Yeslem as a derivative
beneficiary on his asylum application, she would not be eligible for withholding of removal under
the Immigration and Nationality Act (the “INA”) or the Convention Against Torture (the “CAT”),
because those applications are not derivative of El Moctar’s asylum application. See In re A-K-, 24
I. & N. Dec. 275, 279-80 (B.I.A. 2007).
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....
The record reflects that on May 22, 2007, the Court mailed a hearing notice
to the respondents, advising them that the individual hearing concerning the asylum
application would be conducted on April 22, 2008. The respondents, through former
counsel, filed a motion for a continuance on April 2, 2008, because the male
respondent was awaiting unspecified documentation from a friend in Mauritania.
Then, on or about April 7, 2008, the respondents filed a motion to substitute counsel,
which was approved by the Court on April 14, 2008, and the Court indicated in an
interim order that the hearing would proceed as scheduled on April 22, 2008. On
April 16, 2008, the respondents through current counsel filed another motion for a
continuance, advising that current counsel had been unable to obtain the file from
former counsel, and that he needed time to prepare for the case. This continuance
motion was denied on April 17, 2008, wherein the Court advised that the NTAs had
been filed with the Court in 2001, and that the respondents’ retaining new counsel
2 weeks prior to the scheduled hearing was not “good cause” for further delay in the
proceedings. See Berri v. Gonzales, 468 F.3d 390 (6th Cir. 2006).
On the day of the merits hearing, respondents’ counsel advised that he had
received the respondents’ file less than 2 days prior to the scheduled hearing, and
counsel accordingly renewed his continuance motion orally. Considering all the
circumstances surrounding the continuance request, I again concluded that “good
cause” for a continuance had not been established. See 8 C.F.R. § 1003.29. Based
upon counsel’s asserted lack of time to prepare for the case, and at counsel’s request,
[I] conducted the examination of both the male and female respondents. See [8
U.S.C. § 1229a(b)(1)] (providing the Immigration Judge with authority to conduct
an examination of the alien and any witnesses).
Prior to his testimony, the male respondent indicated under oath that the
statements contained in his Form I-589 were all true and correct to the best of his
knowledge. This version of the asylum application was prepared with the assistance
of former counsel, Samuel Ezenagu, and included changes to the handwritten
application that the respondent originally filed in October 2001. The record reflects
that Mr. Ezenagu signed the Form I-589 as the “preparer” of the application. Mr.
Ezenagu also confirmed, under penalty of perjury, that the completed application was
read back to the male respondent in a language that he understood before the male
respondent signed it.
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The asylum and withholding requests are based on the male respondent’s
testimony that he was detained, questioned, and beaten on two separate occasions by
the authorities in Mauritania. He said that the first arrest took place in October 1991,
the same month that the Union of Democratic Forces (“UFD”) Party, of which he
said he was a founding member, was established. According to the respondent, he
was arrested along with twelve other students on this occasion, due to their
participation in a demonstration which involved thousands of persons. He claimed
he was detained for 72 hours, and that he was mistreated by the persons who
interrogated him. Following his release, the respondent returned to Morocco to
complete his graduate studies in Public Administration. He returned to Mauritania
in 1992, and was employed as a human resources director with a television station
in Nouakchott. He retained this position until his departure from Mauritania in
January 1999.
The respondent testified further that his second arrest occurred on December
26, 1998, after he had secured the visa to attend the U.N. World Television Forum
in New York City. The respondent said that he was detained for 4 hours on this
occasion, and that he was asked about the purpose of his trip to the United States, as
well as for information concerning other UFD Party members. The respondent
claimed that he refused to provide this information, and that he was struck in the nose
as a result of this refusal, and he was rendered unconscious in the process. He said
that he had a friend who was a nurse and who attended to his injuries. The
respondent advised that despite being able to retain his position with the Mauritanian
television station from 1992 to 1998, he was often denied certain privileges,
including the opportunity to travel abroad, because of his political opinion in support
of the UFD Party.
The female respondent testified that about 10 days after her husband’s
departure for the United States, she too was taken into custody and questioned as to
his whereabouts. She claimed she was molested by the officer who interrogated her,
but indicated that she was not raped. The female respondent testified that she
stopped attending school and went into hiding in Mauritania following this incident.
She stated that her father assisted her in obtaining a nonimmigrant visa for travel to
the United States, because she accompanied a family friend who was traveling to this
county to obtain medical treatment. The respondents have two United States citizen
children, ages 4 and 6.
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In re El Moctar, Nos. A79-587-435, A79-587-436, slip op. at 1–5 (U.S. Immigration Ct. July 10,
2008) (footnote and citations omitted).
Following the merits hearing, the IJ denied Petitioners’ request for relief and ordered that
they be removed to Mauritania. As the IJ’s decision explained, the statute barred their untimely
asylum application, and their uncorroborated testimony lacked sufficient credibility to warrant
withholding of removal. Id. at 6–12. In November 2010, the BIA issued an order affirming the IJ’s
decision and dismissing their appeal. In re El Moctar, Nos. A079-587-435, A079-587-436, slip op.
at 5 (B.I.A. Nov. 22, 2010). Petitioners now seek review of the BIA’s order, challenging the denial
of (1) their motion for a continuance, (2) their asylum application, and (3) their application for
withholding of removal.
II.
A. Standard of Review
When the BIA issues its own opinion, we review the BIA’s decision as the final agency
determination. Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007). We review questions of
law de novo, granting substantial deference to the BIA’s interpretation of the statute and applicable
regulations. See Stserba v. Holder, 646 F.3d 964, 971 (6th Cir. 2011). Conversely, we review its
factual findings for substantial evidence and reverse only if they are “manifestly contrary to law,”
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8 U.S.C. § 1252(b)(4)(C), that is, if the evidence “not only supports a contrary conclusion, but indeed
compels it,” Ouda v. INS, 324 F.3d 445, 451 (6th Cir. 2003) (internal quotation marks omitted).
B. Denial of Continuance
Petitioners first argue that the BIA erred in affirming the IJ’s denial of their motion for a
continuance, because their attorney’s professed unpreparedness “effectively denied them the
assistance of any counsel” and thereby violated their due process rights.
“The Immigration Judge may grant a motion for continuance for good cause shown.” 8
C.F.R. § 1003.29 (2010). We review the IJ’s denial of a continuance for an abuse of discretion.
Abu-Khaliel v. Gonzales, 436 F.3d 627, 634 (6th Cir. 2006). The denial results in an abuse of
discretion if it lacks a rational explanation, inexplicably departs from established policies, or rests
on an impermissible basis such as invidious discrimination against a particular race or group. See
id.
After reviewing the Petitioners’ hearing transcript, we resolve that the IJ did not abuse his
discretion by denying their motion for a continuance. As the IJ explained, Petitioners’ case had been
pending since 2001, and the date of the hearing had been set for nearly a year. Under these
circumstances, he did not consider their last-minute substitution of counsel good cause for a
continuance. To justify his stance, the IJ cited Berri v. Gonzales, 468 F.3d 390 (6th. Cir 2006), a
case affirming an IJ’s denial of a continuance—despite petitioners’ eleventh-hour substitution of
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counsel—in the face of a long-standing hearing date. Id. at 394–95. Petitioners try, unpersuasively,
to distinguish Berri factually, never even arguing that the IJ’s decision actually constituted an abuse
of discretion. Absent any such assertion, we defer to the IJ’s judgment and uphold his determination.
To the extent Petitioners lodge their complaint as a due process violation, this effort also
fails. An IJ possesses “broad discretion in conducting [a deportation] hearing.” Castellano-Chacon
v. INS, 341 F.3d 533, 553 (6th Cir. 2003). “The failure to be granted discretionary relief does not
amount to a deprivation of a liberty interest.” Huicochea-Gomez v. INS, 237 F.3d 696, 700 (6th Cir.
2001); accord Abu-Khaliel, 436 F.3d at 635. “To prevail on a due process challenge to deportation
proceedings, [an alien] must show error and substantial prejudice.” Gishta v. Gonzales, 404 F.3d
972, 979 (6th Cir. 2005) (alteration in original) (internal quotation marks and citation omitted). “In
other words, the alien must demonstrate that [a] purported defect ‘led to a denial of justice,’ and that
the ‘prejudice materially affected the outcome of his . . . case.’” Pergjoni v. Holder, 311 F. App’x
892, 896 (6th Cir. 2009) (second alteration in original) (citations omitted).
As we explain above, we are unconvinced that the IJ arbitrarily denied Petitioners’
continuance motion. Petitioners also fail to show prejudice. In their brief, Petitioners argue only
that, had their attorney been better prepared, he might have helped them offer more convincing
testimony or include additional corroborating evidence. During the merits hearing, Petitioners’
counsel stated that he met with El Moctar to discuss the petition, and believed that he could explain
and articulate the details of his case. Given the administrative record here, we do not see what
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counsel’s participation in the questioning would have added to the proceedings. Moreover, we note
that Petitioners and their prior counsel had seven years to collect corroborating evidence for their
hearing. Because Petitioners fail to show that the IJ’s denial of their continuance motion resulted
in error or prejudice, we reject their due process claim.
C. Denial of Asylum Application
Next, Petitioners contend that the BIA erroneously affirmed the IJ’s denial of their asylum
application, because they should have been granted refugee status. This challenge misconstrues the
IJ’s decision, which made no finding as to whether Petitioners qualified as “refugees.” Instead, as
the IJ (and the BIA) explained, El Moctar did not apply for asylum within one year of his arrival to
the United States, as required by statute. See 8 U.S.C. § 1158(a)(2)(B) (2006). As such, he was
ineligible for asylum absent a showing of extraordinary circumstances justifying the delay. See id.
§ 1158(a)(2)(D). Upon reviewing the facts of the case, the IJ reasoned that El Moctar’s
justification—that spies might report his asylum application to the Mauritanian government, spurring
harm to his wife—fell outside the regulatory definition of “extraordinary circumstances,” see 8
C.F.R. § 1208.4(a)(5). Accordingly, the IJ dismissed his asylum application. As the government
correctly argues, we lack jurisdiction to review the IJ’s factual findings of timeliness. See 8 U.S.C.
§ 1158(a)(3); Haider v. Holder, 595 F.3d 276, 281 (6th Cir. 2010); see also Almuhtaseb v. Gonzales,
453 F.3d 743, 748 (6th Cir. 2006) (denying jurisdiction to review an IJ’s “predominantly factual”
application of § 1158(a)(2)’s “changed circumstances” provision). And because Petitioners raise no
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legal or constitutional arguments refuting the IJ’s determination, see Almuhtaseb, 453 F.3d at 748
n.3 (noting that these non-factual attacks are the only means by which petitioners may contest an IJ’s
invocation of § 1158(a)(3)’s time bar), we may not disturb the BIA’s decision.
D. Denial of Application for Withholding of Removal
Finally, Petitioners claim that the BIA’s denial of their application for withholding of
removal lacked evidentiary support. Like that of the IJ, the BIA’s decision rested upon its
determination that Petitioners provided neither credible testimony nor corroborating evidence
regarding their past abuse, and thus failed to prove a threat of persecution or torture if they returned
to Mauritania. See 8 C.F.R. § 1208.16(b) (“The burden of proof is on the applicant for withholding
of removal under [the INA] to establish that his or her life or freedom would be threatened in the
proposed country of removal on account of race, religion, nationality, membership in a particular
social group, or political opinion.”); id. § 1208.16(c)(2) (“The burden of proof is on the applicant
for withholding of removal under [the CAT] to establish that it is more likely than not that he or she
would be tortured if removed to the proposed country of removal.”).
Because the BIA’s conclusion hinges upon its credibility assessment—a factual
determination—we review the decision under the substantial-evidence standard. Hamida v.
Gonzales, 478 F.3d 734, 736 (6th Cir. 2007). In reviewing the BIA’s finding, we ensure that it is
“supported by specific reasons” and “based on issues that go to the heart of the applicant’s claim.”
Sylla v. INS, 388 F.3d 924, 926 (6th Cir. 2004); see also Singh v. Ashcroft, 398 F.3d 396, 402 (6th
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Cir. 2005) (“If discrepancies cannot be viewed as attempts by the applicant to enhance his claims
of persecution, they have no bearing on credibility.” (internal quotation marks and citation
omitted)).2 Ultimately, however, we afford the BIA’s adverse credibility finding “substantial
deference,” Sylla, 388 F.3d at 926, and treat its decision as “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B).
In reviewing Petitioners’ application and testimony, the BIA highlighted numerous disparities
that it assessed as undermining their credibility. First, several seemingly incongruent details
rendered their account implausible. See Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th Cir. 2004)
(“[C]redibility encompasses not just consistency but also plausibility and sufficient detail.”). For
example, El Moctar claimed to fear persecution from the Mauritanian government, yet worked for
a government-controlled television station for six years before coming to the United States—to
which he traveled using a government official’s visa. While in the United States, he met several
times with the Mauritanian Ambassador. Moreover, El Moctar’s wife testified that soon after his
departure, she was stopped and questioned by Mauritanian police as to his whereabouts, but “she was
not aware that he was politically involved.” We reiterate that politically motivated persecution
formed the entire basis for Petitioners’ withholding request.
2
The IJ correctly noted that the REAL ID Act of 2005, which modifies the standard
determining credibility determinations, is inapplicable here because El Moctar filed his asylum
application and request for withholding of removal in 2001. See Kaba v. Mukasey, 546 F.3d 741,
749 n.1 (6th Cir. 2008).
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Similarly, inconsistencies surrounding El Moctar’s arrests gave the BIA pause. For instance,
El Moctar claimed to have been arrested in Mauritania in a large student protest during October
1991, yet his petition stated that he was studying in Morocco at that time. Likewise, El Moctar’s
written and oral statements differed as to the month of his second arrest, and divergent details made
the accounts hard to reconcile. As the IJ also commented, “This is not simply a matter of confusion
over dates . . . .”
Finally, the BIA noted that although Petitioners offered supporting documents as to their
identities (including a marriage certificate, graduate diplomas, and proof of employment), none of
this evidence supported the central facet of their claim—that they suffered persecution at the hands
of the Mauritanian government. For example, El Moctar might have offered proof of his
membership in the UFD, photographs of the injuries he allegedly sustained, or newspaper accounts
of the large student protest he described. We recognize that the regulations do not require
documentary evidence. See 8 C.F.R. § 208.16(b), (c)(2). But “where it is reasonable to expect
corroborating evidence for certain alleged facts pertaining to the specifics of an applicant’s claim,
such evidence should be provided. . . . The absence of such corroborating evidence can lead to a
finding that an applicant has failed to meet her burden of proof.” Lin v. Holder, 565 F.3d 971, 977
(6th Cir. 2009) (alteration in original) (internal quotation marks and citation omitted).
In sum, we believe that the BIA’s observations, which find support in the record and go to
the heart of Petitioners’ claim, provide an adequate foundation for the BIA’s negative credibility
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determination and ultimately its denial of the Petitioners’ application for withholding of removal.
As such, Petitioners cannot show “that the evidence presented was so compelling” that any
reasonable factfinder would have granted their application. See Ouda, 324 F.3d at 451.
III.
For these reasons, we deny the petition for review.
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