Diallo v. Attorney General of the United States of America , 553 F. App'x 141 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-2750
___________
ABDOULAYE DIALLO,
AKA Boubacr Sese,
AKA Abdulai Tanu Jalloh,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A093-441-557)
Immigration Judge: Honorable Mirlande Tadal
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 28, 2014
Before: FUENTES, GREENBERG and VAN ANTWERPEN, Circuit Judges
(Opinion filed: January 29, 2014)
___________
OPINION
___________
PER CURIAM
Abdoulaye Diallo, a/k/a Boubacr Sese a/k/a Abdulai Tanu Jalloh, a native and
citizen of Guinea, initially entered the United States in September 1999. He subsequently
applied for asylum, using the alias Abdulai Tanu Jalloh and claiming to be from Sierra
Leone. His application was denied, and he was ordered removed in an order the Board of
Immigration Appeals (“BIA”) upheld in 2004. At some point, he returned to the United
States. Diallo married a United States citizen in April 2011 and sought to adjust his
status on the basis of that marriage (he was unable to do so because his wife was
unavailable for the necessary interview because she had been incarcerated). In December
2011, about a month after his wife was incarcerated, he sought, and was granted,
permission to travel to Guinea to see his terminally ill mother. After a short stop in
Belgium, Diallo remained in Guinea until September 2012.
Diallo was not readmitted to the United States on his return because he had
previously been removed. The Government charged him as removable under 8 U.S.C.
§ 1182(a)(6)(C)(i) 1 and 8 U.S.C. § 1182(a)(7)(A)(i)(I). 2 He conceded the charges and
sought asylum, withholding, and protection under the Convention Against Torture
1
“Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure
(or has sought to procure or has procured) a visa, other documentation, or admission into
the United States or other benefit provided under this Act is inadmissible.”
2
“Any immigrant at the time of application for admission . . . who is not in possession of
a valid unexpired immigrant visa, reentry permit, border crossing identification card, or
other valid entry document required by this Act, and a valid unexpired passport, or other
suitable travel document, . . . is inadmissible.”
2
(“CAT”) based on what he alleged to have experienced in Guinea while he was there to
visit his gravely ill mother.
Specifically, in his affidavit and at his hearing, Diallo primarily described events
that happened on August 27, 2012, August 28, 2012, and September 8, 2012. He
claimed that he belongs to the largest opposition party in Guinea, the Union of
Democratic Forces in Guinea (“UFDG”), and has served on the security team for its
leader, Cellou Dallen Diallo, in the United States and in Guinea. On the security team on
August 27, 2012, he and others were tear-gassed by police outside of Cellou Dallen
Diallo’s compound and en route to a protest rally. At checkpoints, others were arrested
and injured. At the rally itself, police fired tear gas and bullets. Cellou Dallen Diallo and
another opposition leader (and the former prime minister of Guinea), Lansana Kouyate,
had to return to Kouyate’s compound. There, they conferred with a government
prosecutor and security officials about the situation; ultimately, the prosecutor guaranteed
the leaders safe passage.
However, Diallo, on his way home, was arrested at a security checkpoint, beaten
(among other things, a guard broke one of Diallo’s toenails when he hit his foot with his
gun), and detained after security forces saw a picture of Cello Dallen Diallo and Diallo’s
security badge in his car. He was released and driven home on August 28, 2012, after
brokering a deal with a gendarme for his release in exchange for $500 and an agreement
that he would not participate in UFDG activities. On that day, he went into hiding for the
rest of the day, with the exception of a visit to a clinic from about 1:00 p.m. to 2:00 p.m.
3
Then, at an opposition rally that he attended as a UFDG security officer on September 8,
2012, he saw the gendarme with whom he had made the agreement. Fearful, he did not
return home. Later that night, gendarmes came to his family’s compound and searched
for him there. He decided to leave Guinea, but before doing so, he learned from his
father that a friend of his father had heard that security forces were planning to kill him at
the final ceremonies in a football tournament later that month, if he attended, as he had
wished to attend, with Cellou Dallen Diallo. Diallo’s mother died the next day, but he
did not return home, leaving for the United States soon thereafter instead. He noted that
the hostility toward the UFDG is also based on hostility toward the ethnic group to which
he belongs.
The Immigration Judge (“IJ”) denied Diallo’s applications on the basis of an
adverse credibility finding and Diallo’s failure to meet his respective burdens of proof.
She also denied asylum as a matter of discretion. 3 The BIA rested its decision on the
adverse credibility finding alone in regards to the asylum and withholding claims and did
not reach the other bases for denial of relief. The BIA separately ruled on the CAT
claim, holding that Diallo had not credibly established past torture and that there was no
clear error in the IJ’s determination that he had not established that he would face torture
on his return.
3
She nonetheless held that Diallo had corroborated the claims in his application.
4
Diallo, proceeding pro se, presents a petition for review. He argues that the BIA
erred in upholding the IJ’s decision denying his applications for asylum, withholding, and
CAT relief. Informal Brief at 1. His main arguments are that the adverse credibility
finding is not supported, in part because the agency misinterpreted the REAL ID Act
when it relied on his “past statements and one stamp in his passport,” Memorandum
accompany Informal Brief at 3 & Informal Brief at 4, and that he presented sufficient
evidence to show persecution, Memorandum accompanying Informal Brief at 3. He
generally asks that the BIA’s decision be reversed, Memorandum accompanying
Informal Brief at 6, and at one point, specifically asks that the asylum and withholding
rulings be reversed. Informal Brief at 5. The Government counters that the adverse
credibility finding should stand given Diallo’s prior fraud, a discrepancy between
Diallo’s testimony and the evidentiary record, and Diallo’s failure to adequately and
independently corroborate his claim. The Government also states that Diallo has waived
his CAT claim.
We have jurisdiction over Diallo’s petition pursuant to 8 U.S.C. § 1252(a). We
consider questions of law de novo. See Gerbier v. Holmes, 280 F.3d 297, 302 n.2 (3d
Cir. 2002). We review factual findings, such as an adverse credibility determination, for
substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir. 2005). We
evaluate whether a credibility determination was “appropriately based on inconsistent
statements, contradictory evidences, and inherently improbable testimony . . . in view of
the background evidence of country conditions.” Chen v. Ashcroft, 376 F.3d 215, 223
5
(3d Cir. 2004). We afford an adverse credibility finding substantial deference, so long as
the finding is supported by sufficient, cogent reasons. See Butt, 429 F.3d at 434. After
reviewing the matter, we cannot say that the record compels a conclusion different from
the one reached by the agency in regards to the credibility determination.
In affirming the IJ’s decision, the BIA relied on an inconsistency that, as the BIA
described it, goes to the heart of Diallo’s claim. 4 Diallo testified that after he was
released early in the morning on August 28, 2012, and returned home, he stayed into
hiding for the rest of the day, leaving only for a short visit to a clinic in the early
afternoon. R. 169. But, during the hearing, Diallo also testified that he took his passport
to the French Embassy and applied for a visa. His passport includes an entry “Visa
demandé le 28/08/12 à Conakry.” R. 360. The French-qualified interpreter at the hearing
translated the phrase as meaning “a request.” R. 172. Counsel for the Government noted
to Diallo that the stamp in his passport “seems to indicate that you requested a visa to
France on that particular day.” R. 173. Diallo responded, “But they refused to give me a
visa.” R. 174. He seemed to imply that the refusal was on August 28, 2012, but he did
4
In a pre-REAL-ID Act case, the discrepancies identified by the agency had to go to the
heart of the claim to support the adverse credibility determination. See Gao v. Ashcroft,
299 F.3d 266, 272 ( 3d Cir. 2002). Now, under the REAL ID Act, an adverse credibility
determination can be based on inconsistencies that do not go to the heart of the
applicant’s claim, but inconsistencies must be considered as part of “the totality of the
circumstances, and all relevant factors.” 8 U.S.C. § 1158(b)(1)(B)(iii). However, under
the circumstances, because the fact on which there is an inconsistency in this case is so
central, it could serve as a sufficient basis to put in question the rest of Diallo’s
testimony. We do not need to consider the parties’ competing arguments about the
significance of Diallo’s past fraud in the calculus.
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not learn of the denial until after the rally and other events. R. 174. When asked when he
applied for the visa, he said that he did not “remember exactly the date,” and then
explained that he “gave the passport to someone because on that embassy, you can pay
someone to help you to get the visa.” R. 174. He said that he had given the passport and
photographs over previously and received it back later from a man who said, “I am sorry,
I was not able to help you.” R. 174. To explain why he wanted to leave the country
before the events of August 27, 2012, and while his mother was terminally ill, Diallo
further testified that he had planned to go to France because he was going “to buy some
stuff and to come back to Guinea to sell them.” R. 174.
As the BIA noted, the stamp in Diallo’s passport indicates that he requested a visa
on August 28, 2012. The translation of “demandé” is in the record, and Diallo did not
deny that “demandé” means requested. A request for a visa at the French Embassy on
August 28, 2012, conflicts with his testimony at the basis of his claim for persecution. It
is inconsistent with his claim that he stayed in hiding on that day after being released
from detention (with the exception of a trip to a clinic for treatment). Furthermore, the
BIA had a basis for rejecting Diallo’s alternative explanation, which involved references
to “someone” and an unspecified date, as unpersuasive. For these reasons, we conclude
that the adverse credibility finding was supported by substantial evidence.
Lastly, although the issue of waiver of the CAT claim is close, we cannot
conclude, as the Government asserts, that Diallo did not challenge it at all. He clearly
mentioned it in his informal brief. And he challenges the credibility determination that
7
figured in an alternative basis for the denial of CAT relief. Upon review, however, we
conclude that the BIA properly denied Diallo’s CAT claim.
For these reasons, we will deny Diallo’s petition for review.
8