Tagoe v. Ashcroft , 108 F. App'x 597 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 27 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
EDWARD ARMAH TAGOE, also
known as Edward Armah Tagoe
Johnson,
Petitioner, Nos. 03-9561 & 03-9576
(BIA No. A72-450-425)
v. (Petitions for Review)
JOHN ASHCROFT, Attorney General
of the United States,
Respondent.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, MURPHY , Circuit Judge, and CAUTHRON , **
Chief District Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable Robin J. Cauthron, Chief District Judge, United States
District Court for the Western District of Oklahoma, sitting by designation.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are
therefore ordered submitted without oral argument.
Edward Armah Tagoe petitions for review of the decision of the Bureau of
Immigration Appeals (BIA) affirming the Immigration Judge (IJ)’s order revoking
his previously approved application for asylum and denying his requests for
withholding of deportation and voluntary departure. He also seeks review of the
BIA’s subsequent denial of his motion to reconsider and reopen. We have
jurisdiction pursuant to 8 U.S.C. § 1105a(a) (repealed 1996), and we deny the
petitions. 1
Background
Tagoe entered the United States without inspection in August 1992 and was
granted asylum in 1995 based on his assertion that, as a citizen and national of
Liberia, he had a well-founded fear of persecution if returned to that country.
Later, however, the Immigration and Naturalization Service (INS) received
information that Tagoe’s asylum application was fraudulent, in that he was a
1
Our jurisdiction arises under the former provision of the Immigration and
Nationality Act, as amended by the transitional rules, because immigration
proceedings were commenced against petitioner prior to the effective date of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L.
No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), and the BIA’s final deportation
orders were issued after October 30, 1996. See Mickeviciute v. INS , 327 F.3d
1159, 1161-62 (10th Cir. 2003).
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citizen of Ghana, not Liberia. 2
After reviewing the documentary evidence and
interviewing Tagoe, the INS determined that Tagoe’s asylum application was
based on fraudulent statements and documents, and that Tagoe was not eligible
for asylum. On August 8, 1996, the INS revoked Tagoe’s asylum status. See
8 C.F.R. 208.24(a)(2) (1996).
During deportation proceedings, Tagoe renewed his requests for asylum,
withholding of deportation, and voluntary departure. At the asylum hearing,
Tagoe again asserted that he was a citizen of Liberia and that the person who told
the INS he was Ghanaian was misrepresenting her relationship with him and was
motivated by vindictiveness. He testified that if he returned to Liberia, he would
be singled out for persecution because he was an Americo-Liberian (a descendent
of freed slaves who immigrated in the 1800s from the United States) and because
his father served as an official in the former Liberian government.
In analyzing the evidence, the IJ examined Tagoe’s proffered identification
documents, reviewed two forensic examination reports, and heard the telephonic
testimony of two forensic witnesses. Based on his evaluation of the record, the IJ
2
On March 1, 2003, the INS ceased to exist as an agency within the
Department of Justice. Its enforcement functions were transferred to the
Department of Homeland Security. See Homeland Security Act of 2002, Pub.L.
No. 107-296, 116 Stat. 2135 (2002). Because the events at issue here predate that
reorganization, we continue to refer to the INS in this order and judgment.
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determined that Tagoe’s documentation was fraudulent. Additionally, the IJ
decided that, even assuming Tagoe had shown Liberian citizenship, his personal
testimony had not established a well-founded fear of persecution. In a decision
dated May 22, 1998, the IJ denied all forms of relief from deportation and ordered
Tagoe deported to Ghana.
The BIA summarily affirmed the IJ’s decision on April 22, 2003. Tagoe
then filed a motion to reconsider and reopen, requesting a more thorough review
of his appeal issues and a reopening in order to apply for adjustment of status
based on a pending visa petition filed by his present spouse, a United States
citizen. The BIA refused to reconsider its previous decision and held that Tagoe
had failed to provide clear and convincing evidence of a bona fide marriage or to
show that he merited the discretionary relief of reopening.
Discussion
In this court, Tagoe asserts that (1) the BIA failed to address his appeal
issues with specificity; (2) the IJ and the BIA incorrectly determined that he was
not entitled to asylum, withholding of deportation, and voluntary departure;
(3) the IJ’s decision was based on contradictory evidence not admitted into the
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record; and (4) the BIA erred in denying Tagoe’s motion to reconsider and his
motion to reopen based on his marriage of almost five years. 3
Tagoe’s first claim, which takes exception to the brevity of the BIA’s
decision, is of no legal significance. Under the BIA’s summary affirmance
regulations, the IJ’s decision is the “final agency action.” Yuk v. Ashcroft , 355
F.3d 1222, 1230 (10th Cir. 2004). Accordingly, when “the BIA summarily
affirm[s] the IJ’s decision, we review the IJ’s analysis as if it were the BIA’s.”
Estrada-Escobar v. Ashcroft, No. 02-9568, 2004 WL 1616404, at *2 (10th Cir.
July 20, 2004)).
With regard to Tagoe’s second claim, in which he explicitly challenges the
denial of asylum, “[w]e review the IJ’s factual findings for substantial evidence in
the record.” Id. at *3. In asylum cases, the IJ’s findings “are conclusive unless
the record demonstrates that ‘any reasonable adjudicator would be compelled to
conclude to the contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). The IJ
determined that the documents Tagoe submitted to show Liberian birth and
citizenship were fraudulent and, therefore, that Tagoe was not entitled to asylum
status. Our review of the record convinces us that the IJ’s findings are supported
3
In number 03-9561, Tagoe petitions for review of the denial of his request
for asylum; in number 03-9576, he petitions from review of the decision to deny
his motion to reconsider and reopen.
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by substantial evidence and that Tagoe did not provide any evidence compelling a
contrary conclusion. 4
Because Tagoe did not meet the standard for asylum, he also failed to
establish the higher and more difficult standard for withholding of deportation,
which requires a showing of a “clear probability of persecution on one of the
specified grounds.” Krastev v. INS , 292 F.3d 1268, 1271 (10th Cir. 2002). As for
the IJ’s denial of voluntary departure, under the transitional rules, we lack
jurisdiction to review this discretionary decision. Ali v. Ashcroft, 366 F.3d 407,
412 (6th Cir. 2004); Regalado-Garcia v. INS , 305 F.3d 784, 786 n.2 (8th Cir.
2002); Tamas-Mercea v. Reno , 222 F.3d 417, 427 (7th Cir. 2000).
Tagoe next challenges a comment of the IJ about changing and improving
conditions in Liberia. Tagoe asserts that it was improper for the IJ to suggest the
possibility of changed country conditions, in that the INS did not present this
argument as a basis for revocation of asylum. The INS, however, determined that
Tagoe was a resident of Ghana and should be deported to that country. Because
4
Tagoe also attacks the initial revocation of his asylum status for a showing
of fraud in the application process. The regulation applicable to Tagoe’s case
provided that an asylum officer may revoke a grant of asylum for several reasons,
including a showing of fraud in the application process. See 8 C.F.R.
§ 208.24(a)(1) (1996). This determination was not the final order of the agency,
since Tagoe was permitted to reassert an asylum claim in his subsequent
deportation proceeding. Id. , § 208.24(e). Thus, we lack jurisdiction to consider
this aspect of Tagoe’s appellate argument.
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we have concluded that the evidence supports this determination, Tagoe’s factual
contentions about conditions in Liberia are immaterial to a resolution of this
appeal.
Finally, Tagoe asserts that the BIA erred in denying his motion to reopen, a
claim which we review under the abuse of discretion standard. Mickeviciute v.
INS , 327 F.3d 1159, 1162 (10th Cir. 2003). An abuse of discretion may be found
only when the BIA’s decision “provides no rational explanation, inexplicably
departs from established policies, is devoid of any reasoning, or contains only
summary or conclusory statements.” Id. (quotation omitted). “Motions for
reopening of immigration proceedings are disfavored” and “[t]his is especially
true in a deportation proceeding where, as a general matter, every delay works to
the advantage of the deportable alien who wishes to stay in the United States.”
INS v. Doherty , 502 U.S. 314, 323 (1992).
Tagoe’s motion to reopen first asked the BIA to reconsider its single-board
member disposition of his appeal. Under 8 C.F.R. § 1003.2(b)(3), “[a] motion to
reconsider based solely on an argument that the case should not have been
affirmed without opinion by a single Board Member, or by a three-Member panel,
is barred.” Accordingly, the BIA properly dismissed Tagoe’s motion to
reconsider.
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Tagoe’s motion also requested reopening of his case for the submission of
new evidence showing entitlement to readjustment of status based on his marriage
to a United States citizen. This type of motion, premised on a marriage that
occurred during deportation proceedings, “‘[must] present[ ] clear and convincing
evidence indicating a strong likelihood that the [petitioner’s ] marriage is bona
fide.’” Malhi v. INS , 336 F.3d 989, 993-94 (9th Cir. 2003) (quoting In re
Velarde-Pacheco , 23 I. & N. Dec. 253, 256 (BIA 2002)); see also 8 C.F.R. §
204.2(a)(1)(iii)(A)-(B) (discussing petitioner’s burden in overcoming the
regulatory presumption that alien entered into intra-proceeding marriage for the
purpose of evading the immigration laws).
[A]n applicant must offer evidence that is probative of the motivation
for marriage, not just the bare fact of getting married. To qualify, a
marriage must be based on an actual and legitimate relationship
rather than a subjective desire to adjust status based on marriage, and
the applicant’s evidence must reflect this.
Malhi , 336 F.3d at 994. Further, even if the BIA determines that a petitioner
demonstrated a bona fide marriage, it still may exercise its discretion to deny
relief. See INS v. Abudu , 485 U.S. 94, 105 (1988); see also 8 C.F.R. § 1003.2(a)
(“The Board has discretion to deny a motion to reopen even if the party moving
has made out a prima facie case for relief.”).
The documents submitted to show the bona fides of Tagoe’s marriage may
be evaluated in light of the entire proceeding. The IJ’s oral deportation ruling
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was issued on May 22, 1998, at which time Tagoe described his marriage to a
woman from Ghana, without expressing any intention of ending that marriage and
entering into another. The purported dissolution of the earlier marriage occurred
less than one month later, and the new marriage took place four months later.
Adverse factors presented by Tagoe’s motion included the determination that
Tagoe’s documents purporting to show Liberian citizenship were fraudulent and
evidence of Tagoe’s unrelated criminal conviction for making a false statement.
Cast against this background, the BIA did not err in determining that Tagoe
had failed to provide clear and convincing evidence of a bona fide marriage to a
United States citizen and, in any event, did not merit reopening as a matter of
discretion. We therefore affirm the denial of his motion to remand.
The petitions for review are DENIED.
Entered for the Court
Deanell Reece Tacha
Chief Judge
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