Tarrawally v. Atty Gen USA ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
7-29-2003
Tarrawally v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 02-2951
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PRECEDENTIAL
Filed July 29, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2951
SULAIMAN TARRAWALLY,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL
OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(INS No. A 94-006-655)
Submitted Under Third Circuit LAR 34.1(a)
July 10, 2003
Before: NYGAARD, SMITH, Circuit Judges
and IRENAS,* District Judge.
(Opinion Filed: July 29, 2003)
Counsel for Petitioner
Steven A. Morley, Esq.
Bagia & Morley
The Bourse, Ste. 592
111 S. Independence Mall East
Philadelphia, PA 19106
* Honorable Joseph E. Irenas, Senior United States District Judge for the
District of New Jersey, sitting by designation.
2
Counsel for Respondent
Robert D. McCallum, Jr., Esq.
Assistant Attorney General
Civil Division
Terri J. Scadron, Esq.
Assistant Director
Efthimia S. Pilitsis, Esq.
Michael P. Lindemann, Esq.
John D. Williams, Esq.
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 878
Ben Franklin Station
Washington, DC 20044-0878
OPINION OF THE COURT
SMITH, Circuit Judge:
I. INTRODUCTION
Petitioner Sulaiman Tarawally1 appeals the denial of his
application for asylum and for withholding of removal
under the Immigration and Nationality Act, and his request
for relief under the United Nations Convention Against
Torture and Other Forms of Cruel, Inhuman or Degrading
Treatment or Punishment (“Convention Against Torture” or
“Convention”). We now add our voice to the chorus of other
circuits which have held that a court of appeals lacks
jurisdiction to review an asylum petition that an
Immigration Judge (“IJ”) or Board of Immigration Appeals
(“BIA”) deems untimely. In reaching the merits of the
petitioner’s requests for withholding of removal and relief
under the Convention Against Torture, we conclude that
the Immigration Judge’s finding that Tarawally was not
1. Petitioner’s name is frequently misspelled “Tarrawally” in the record,
as it is in the above caption.
3
likely to be persecuted or tortured was supported by
substantial evidence.
II. FACTS
Sulaiman Tarawally is a citizen of Sierra Leone who
entered the United States in January 1998 as a visitor for
pleasure with authorization to remain until February 10,
1998. Tarawally filed an application for Temporary
Protected Status, which was eventually denied. Sometime
after October 12, 1999, he filed an application for asylum,
withholding of removal and relief under the Convention
Against Torture.
During the asylum hearing that followed, Tarawally
testified to his personal history in Sierra Leone. Tarawally’s
father was chairman of the All People’s Congress (“APC”) for
the Kono district of Sierra Leone. The APC was the ruling
party until a 1992 coup, during which the National
Provisional Ruling Council, also known as the Armed
Forces Revolutionary Council (“AFRC”), took power. In early
1992, the AFRC arrested Tarawally’s father for his political
activities and detained him for about a month. At that time,
Tarawally was living in the town of Bamakonta, some nine
to twelve miles away from his family. Sometime after his
father’s detention, in March of 1992, Tarawally was visiting
his family’s home and awoke one night to the sound of
gunfire. When he discovered that the rest of his family was
missing, he immediately left Kono. He spent three days
walking to the town of Bo, Sierra Leone, where he lived and
attended secondary school from 1992 to 1993.2
In 1993, the school was closed due to civil unrest, so
Tarawally traveled first to Guinea for three months, then to
Gambia for a year, returning to Sierra Leone in 1994.
Although Tarawally’s application for admission to Injala
University in Bo was accepted, he did not attend because of
financial constraints.
2. Tarawally’s testimony on this point is unclear. He seems to suggest
that between 1986 and 1993 his primary residence was in Bamakonta,
but that he spent most of his time in Bo where he attended high school.
4
Tarawally regularly traveled back and forth between
Sierra Leone and Gambia from 1994 until 1996. Sometime
in 1996 or 1997, Tarawally was sleeping in a school in
Gambia when other Sierra Leone citizens, also in Gambia,
threw a Molotov cocktail into the building. When Tarawally
attended a soccer game in Gambia, he was physically
attacked by the same individuals who had thrown the
Molotov cocktail.3
Between 1993 and 1997, Tarawally advocated in support
of the APC and assisted new members to register to vote.
He also was active in the Student Mobilization For
Democracy (“SMFD”), and the Youth Defense Army vigilante
group in Sierra Leone. All of these groups opposed the
Revolutionary United Front (“RUF ”) and AFRC.
In 1996, Tarawally discovered that his family was living
in the town of Makeni in Sierra Leone and visited them for
a week. He then went to Freetown, Sierra Leone, where he
lived for a year. Around this time, he became uneasy about
his participation in the SMFD and therefore decreased his
involvement in its activities.
Although the Sierra Leone People’s Party had been
elected to power in 1996, a coup d’etat occurred in May of
1997, and the RUF, with support from the AFRC, overthrew
the government.4 After the coup, the AFRC and the SMFD
met in Freetown, and the AFRC threatened Tarawally and
other SMFD members with amputation of their limbs if they
did not cooperate and support the AFRC regime. Three days
later, Tarawally was arrested5 in Freetown and then taken
to the Pademba detention facility where he was held for
several weeks and beaten. Around the same time, on June
3. In his 1998 affidavit accompanying his asylum application, which was
prepared with the assistance of his counsel, Tarawally claimed that the
threats occurred in Gambia in 1994, and that he did not return to Sierra
Leone until 1996.
4. The RUF and AFRC subsequently merged into one party, but the party
was overthrown in March of 1998 after Tarawally left Sierra Leone.
5. In his affidavit, Tarawally stated that these threats about amputation
were made when he was arrested, rather than at the meeting. During his
cross-examination, he sought to explain the discrepancy by saying that
the same threats were made on both occasions.
5
18, 1997, Tarawally’s father and sister were killed for their
political activities and their opposition to the RUF.6
Tarawally was able to escape from prison with the
assistance of a former school friend who was working there.
Tarawally fled through the jungle to Guinea, a journey of
approximately 75 miles, which he said he made in two
days. He then went from Guinea to Gambia. He
subsequently fled to the United States.
III. PROCEDURAL POSTURE
Following a removal hearing, the IJ issued an opinion in
which he determined that because Tarawally did not file his
asylum application within one year of his entry into the
United States, his request for asylum should not be
considered. The IJ then denied Tarawally’s application for
withholding of removal and relief under the Convention
Against Torture, finding that Tarawally was not credible
because of: 1) his initial uncertainty as to how long his
father was detained following arrest; 2) his lack of
knowledge regarding how his father was treated in prison;
3) his initial uncertainty as to what night he heard gunfire
and fled Kono; 4) the implausibility that he would walk 97
kilometers from Kono to Bo and “instead of trying to locate
his missing family, decide[ ] to enroll in a school in that
city;” 5) the inconsistency between his 1998 affidavit, in
which he stated that he started a new chapter of the SMFD
in Bo in 1997 and that he was chairman of the chapter at
the school, and his later testimony that he stopped actively
participating in the SMFD organization in 1996, and that
he never attended the University; 6) the conflicting dates he
provided of his arrest, both early 1997 and June of 1997;
7) contradictions between petitioner’s affidavit and his
testimony as to the dates he attended high school; 8)
contradictions as to whether he attended the University and
whether he applied in 1993 or in 1997 after his father’s
death; 9) contradictions between his affidavit and his
testimony as to whether threats of amputation occurred at
6. In his affidavit, Tarawally stated that after his father and sister were
killed he returned to Bo to attend the University, and it was at that time
that the meeting between the SMFD and ARFC took place.
6
the meeting between the AFRC and SMFD or three days
later; 10) his failure to testify, consistent with his affidavit,
that he was cut with razor blades and beaten senseless
when arrested; 11) the inconsistency between his statement
that he left prison in June 1997 and his affidavit that he
arrived in Guinea in September, and that the trip took him
only two days; 12) the implausibility that, between 1993
and 1997, he would have traveled back and forth between
Sierra Leone and Gambia (a three to four day trip each way)
with regularity to participate in student groups; and 13)
contradictions as to whether he ever returned to Bo after
1993.
The BIA affirmed without opinion pursuant to 8 C.F.R.
§ 3.1(a)(7).7
IV. JURISDICTION
The IJ had subject matter jurisdiction under Sections
208(a) and 241(b)(3) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. §§ 1158, 1231(b). The BIA exercised
jurisdiction pursuant to 8 C.F.R. §§ 3.1 and 240.15. We
have jurisdiction under Section 242(a) of the INA, 8 U.S.C.
§ 1252(a).
V. STANDARD OF REVIEW
Although we normally review only the decisions of the
BIA, where the BIA summarily affirms the IJ’s decision, we
“must then review the decision of the IJ.” Gao v. Ashcroft,
299 F.3d 266, 271 (3d Cir. 2002).8
We review de novo the issue of whether we have
jurisdiction to determine what constitutes extraordinary
circumstances for a late filed asylum petition. See Valansi
v. Ashcroft, 278 F.3d 203, 207 (3d Cir. 2002).
7. The BIA issued its ruling on June 13, 2002. In 2003, the regulations
were renumbered and the streamlining regulation by which a single
Board member is permitted to affirm without opinion is now set forth at
8 C.F.R. § 1003.1(a)(7).
8. Petitioner did not challenge our authority to review the IJ’s decision
when the BIA issues a summary affirmance under the streamlining
regulation, or the validity of the regulation.
7
The IJ’s adverse credibility determination and findings of
fact with respect to his withholding and Convention claims
must be reviewed under the substantial evidence standard.
We will not disturb the IJ’s credibility determination and
findings of fact if they are “supported by reasonable,
substantial and probative evidence on the record
considered as a whole.” Balasubramanrim v. INS, 143 F.3d
157, 161 (3d Cir. 1998) (internal quotation marks and
citation omitted). Although we generally defer to the IJ’s
inferences, “deference is not due where findings and
conclusions are based on inferences or presumptions that
are not reasonably grounded in the record, viewed as a
whole.” Id. at 162 (internal quotation marks and citation
omitted).
VI. LEGAL ANALYSIS
A. Eligibility for Asylum
An alien must prove by clear and convincing evidence
that he filed his asylum application within one year of
arrival in the United States. 8 U.S.C. § 1158(a)(2)(B).
However, if the alien can establish that there are
“extraordinary circumstances relating to the delay in filing
the application,” failure to file the application within the
one year period may be excused. 8 U.S.C. § 1158(a)(2)(D).
The relevant regulation lists as one possible
extraordinary circumstance that “the applicant maintained
Temporary Protected Status . . . until a reasonable period
before the filing of the asylum application.” 8 C.F.R.
§ 208.4(a)(5)(iv). Tarawally argues that although he
submitted his application for asylum more than a year after
his arrival and although he was never granted Temporary
Protected Status, the application for such status was itself
an extraordinary circumstance.
The Government argues that we lack jurisdiction to
review this question. In most cases, this court has
jurisdiction to review a final order of removal resulting from
the denial of an asylum request. See 8 U.S.C. § 1252(a)(1).
However, INA Section 208(a)(3), 8 U.S.C. § 1158(a)(3),
provides that “no court shall have jurisdiction to review any
determination by the Attorney General under paragraph
8
[(a)](2),” which includes the provision relating to whether
extraordinary circumstances warrant waiving the one year
time limitation for asylum applications. While there must
be “clear and convincing evidence” to support a finding that
Congress intended to preclude judicial review of an
administrative action, specific language in a statute that
indicates an intent to preclude judicial review satisfies this
requirement. See Board of Governors of the Fed. Reserve
Sys. v. McCorp Fin. Inc., 502 U.S. 32, 44 (1991); Block v.
Community Nutrition Inst., 467 U.S. 340, 349 (1984); see
also INS v. St. Cyr, 533 U.S. 289, 298 (2001).
In Ismailov v. Reno, 263 F.3d 851, 855 (8th Cir. 2001),
the Eighth Circuit addressed whether it had jurisdiction to
review the BIA’s determination that the petitioner failed to
demonstrate extraordinary circumstances with respect to
his failure to file his asylum petition within one year of his
arrival in the United States. That court held that it had no
jurisdiction to review the BIA’s decision, “because
§ 1158(a)(3) clearly indicates congressional intent to
preclude judicial review of decisions made pursuant to
§ 1158(a)(2).” Id.
The Ninth Circuit followed the Eighth Circuit’s lead in
Hakeem v. INS, 273 F.3d 812, 815 (9th Cir. 2001). In
Hakeem, the IJ denied the petitioner’s request for asylum
based on the untimeliness of his application, and the BIA
dismissed the appeal, adopting the IJ’s reasoning. The
Ninth Circuit held that based on the language in
§ 1158(a)(3) it lacked jurisdiction to review the denial of
asylum, as it was premised on the IJ’s finding that the
petitioner failed to file his asylum application within one
year after his entry into the United States.
The Tenth and Eleventh Circuits subsequently addressed
the same issue and held that they lacked jurisdiction to
review denials of asylum petitions that an IJ or the BIA
deemed untimely, based on the plain meaning of
§ 1158(a)(3). Tsevegmid v. Ashcroft, 318 F.3d 1226, 1230
(10th Cir. 2003); Fahim v. INS, 278 F.3d 1216, 1217 (11th
Cir. 2002). The Eleventh Circuit noted that “[t]he language
of section 1158(a)(3) is so clear that several courts have, in
dicta, used the section as an example of a clear
9
congressional limit on courts’ jurisdiction.” Fahim, 278 F.3d
at 1218.
We agree that the language of 8 U.S.C. § 1158(a)(3)
clearly deprives us of jurisdiction to review an IJ’s
determination that an asylum petition was not filed within
the one year limitations period, and that such period was
not tolled by extraordinary circumstances. We therefore join
the Eighth, Ninth, Tenth and Eleventh Circuits in holding
that we are precluded from reviewing such determinations
made pursuant to 8 U.S.C. § 1158(a)(2). See Tsevegmid,
318 F.3d at 1230; Fahim, 278 F.3d at 1217; Hakeem, 273
F.3d at 815; Ismailov, 263 F.3d at 855. While we lack
jurisdiction to review the IJ’s denial of Tarawally’s asylum
petition, based on the IJ’s finding of untimeliness,
Tarawally’s applications for withholding of removal and
relief under the Convention Against Torture are ripe for
disposition.
B. Withholding of Removal
The standard for withholding of removal under INA
§ 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), is: “the Attorney
General may not remove an alien to a country if the
Attorney General decides that the alien’s life or freedom
would be threatened in that country because of the alien’s
race, religion, nationality, membership in a particular social
group or political opinion.” The alien must establish by a
“clear probability” that his life or freedom would be
threatened in the proposed country of deportation. INS v.
Stevic, 467 U.S. 407 (1987); Janusiak v. INS, 947 F.2d 46,
47 (3d Cir. 1991). A clear probability means “more likely
than not.” Stevic, 467 U.S. at 429-30.
Since Tarawally did not introduce any evidence other
than his testimony to show that he belonged to groups
opposing the AFRC/RUF and was persecuted on account of
his political opinion, the IJ’s adverse credibility
determination precludes Tarawally from prevailing on his
INA withholding of removal claim. We therefore must
determine whether the IJ’s adverse credibility determination
was supported by substantial evidence.
Tarawally argues that the reasons offered by the IJ for
his adverse credibility determination were either based on
10
inferences or presumptions not grounded in the record as
a whole, or on minor inconsistencies in dates that were
easily explainable. First, Tarawally explains that his
confusion as to dates was reasonably based, in part, on the
fact that the events in question occurred almost nine years
earlier. Second, he suggests that even though he requested
that the hearing be held in English, the language barrier
played a role in his misunderstanding the IJ’s questions.9
Tarawally points to two examples of confusion which he
claims arose from the language barrier. First, Tarawally
suggests that the IJ did not understand what he meant
when he said the rebel forces sought his father’s “consent.”
The record demonstrates, however, that the IJ was able to
determine that the “consent” the rebels were seeking was
that Tarawally’s father agree to withdraw from his political
activities. Second, when the IJ asked if Tarawally “missed”
his father, Tarawally claims he was unsure whether the IJ
was asking if he was longing for his father or whether the
two failed to connect at a particular time. This alleged
uncertainty does not demonstrate that Tarawally had
difficulty comprehending English; a person fluent in the
language could just as easily be confused by the use of the
word “miss.” In any case, these examples are completely
unrelated to the contradictions cited by the IJ. They do not
demonstrate that Tarawally was having problems
understanding the IJ because of a language barrier, and in
light of the fact that Tarawally turned down the IJ’s offer to
provide a translator, he cannot now blame inconsistencies
in his testimony on his lack of fluency.
Some of the IJ’s reasons for his adverse credibility
determination were based on presumptions not grounded in
9. In his brief in support of appeal to the BIA, Tarawally also pointed out
that he injured his head in a serious automobile accident on May 20,
2000, and was taking numerous prescription medications for
forgetfulness and loss of memory. A letter dated June 15, 2000, from the
Reading Hospital and Medical Center confirms that Tarawally was
hospitalized for a month as a result of the accident, and that he
“continue[d] to have significant cognitive deficits and [was] continuing
therapy on an outpatient basis.” However, Tarawally did not introduce
any evidence that he continued to experience cognitive deficits a year
later when the hearing took place.
11
the record, such as his conclusion that it was implausible
that Tarawally would not know exactly how his father was
treated in prison, and that after walking 97 kilometers from
Kono to Bo, “instead of trying to locate his missing family,
[he] decided to enroll in a school in that city.” However, the
IJ also offered other rationales which went to the heart of
the withholding of removal and Convention claims, and
which could not be adequately explained by forgetfulness
on the part of petitioner. For example, the IJ noted that
Tarawally stated in his affidavit that he started a school
chapter of the SMFD in Bo in 1997 and that he was
chairman of the chapter, but testified that he was rarely
participating in SMFD meetings or activities in 1997, and
was living in Freetown not Bo; he contradicted himself as to
whether he ever attended the University and whether he
applied in 1993 immediately after high school or in 1997
after his father’s death; he stated that he left prison in
June 1997 and arrived in Guinea in September, but that
the trip took him only two days; and he could not decide if
he had ever returned to Bo for SMFD activities after his
high school closed in 1993.
Moreover, although some minor discrepancies between
Tarawally’s 1998 affidavit and 2001 testimony might
be understandable, Tarawally made irreconcilable
contradictory assertions within the span of a few minutes.
Judge: I’m getting different answers here. He’s
answering both ways. Let me, let me understand. From
the time you left Bo in ‘93, did you go back there, yes
or no?
A: Yes
Judge: You went back to Bo?
A. [Indiscernible]
Judge: Let me go on to the next tape. You can think
about your answer while I change the tape.
Q. All right. Now, you thought about the question,
sir. Since you, since you left Bo in ‘93 did you ever
return there? . . . Since you left Bo in ‘93 did you ever
return to Bo?
12
A. No.
. . .
Q. When was the last time you lived at that address
[in Bo]?
A. ‘93.
Q. ‘93
A. Yeah
Q. All Right.
Judge: Proceed, Counsel.
Tarawally to Judge: To ‘97, something like that.
Judge: ‘93 to ‘97?
A. ‘93, something like that . . . .
These inconsistencies and contradictions are not minor in
nature but are material to the claim. As such, they
constitute substantial evidence supporting the IJ’s adverse
credibility determination. Therefore, the IJ did not err in
denying Tarawally’s application for withholding of removal.
C. Convention Against Torture
The IJ denied the application for withholding under the
Convention, in part because he found that Tarawally lacked
credibility. He also stated that even if Tarawally were
credible, he did not prove that he would be tortured if
returned to Sierra Leone.
Under the Convention’s implementing regulations “the
burden of proof is on the applicant to establish that it is
more likely than not that he or she would be tortured if
removed to the proposed country of removal.” 8 C.F.R.
§ 208.16(c)(2). The torture must be inflicted “by or at the
instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity.”
8 C.F.R. § 208.18(a)(1). However, the torture need not be on
the basis of Tarawally’s political opinion, as is the case with
asylum and withholding of removal. The evidence that the
decision-maker should consider in evaluating whether the
petitioner would be tortured includes “[e]vidence of gross,
13
flagrant or mass violations of human rights within the
country of removal” and “[o]ther relevant information
regarding conditions in the country of removal.” 8 C.F.R.
§ 208.16(c)(3). Several courts have held that “country
conditions alone can play a decisive role in granting relief
under the Convention.” Kamalthas v. INS, 251 F.3d 1279,
1280 (9th Cir. 2001); see also Mansour v. INS, 230 F.3d
902, 908 (7th Cir. 2000). Accordingly, a decision-maker
must review claims for relief under the Convention and
consider relevant country conditions even where adverse
credibility determinations have precluded relief under the
INA. See Mansour, 230 F.3d at 908; Kamalthas, 251 F.3d at
1284.
Petitioner suggests that even if his testimony is not
credible, he established his eligibility for relief under the
Convention based on the documents he submitted
discussing country conditions. He claims that these
documents demonstrate that torture by the AFRC/RUF, the
current government, and the ECOMOG, a coalition of West
African peace-keeping forces stationed in Sierra Leone, is so
widespread that he is likely to be tortured if returned to
Sierra Leone.
While the documents do establish that citizens who do
not support the AFRC/RUF are specifically targeted for
torture, such as limb amputation, petitioner has introduced
no evidence other than his own testimony that he was a
member of groups opposing AFRC/RUF, such as the APC
and SMFD. Therefore, accepting the IJ’s adverse credibility
determination, we must assume that the AFRC/RUF would
treat Tarawally no differently than an ordinary citizen.
Although Amnesty International recognizes that AFRC/RUF
members commit “gross human rights abuses on a large
scale,” [R. 333] and that many civilians are killed arbitrarily
even if they do not oppose the AFRC/RUF [R. 344], these
statements alone are insufficient to demonstrate that it is
more likely than not that a particular civilian, in this case
Tarawally, will be tortured by AFRC/RUF if returned to
Sierra Leone.10
10. Moreover, even if Tarawally could establish that he was likely to be
tortured by the AFRC/RUF, his claim would still fail. The AFRC/RUF is
14
Similarly, Tarawally failed to establish the likelihood that
he will be tortured by the current government and/or the
ECOMOG. While both have been accused of “gross
violations of human rights.” [R. 323], this does not
demonstrate that it is more likely than not that Tarawally
will be tortured.
Nor can Tarawally prevail on his argument that the
current government will detain and torture him because it
will believe him to be a supporter of the rebels based on the
fact that he fled the country. Tarawally introduces no
evidence to support either the fact that the government
detains individuals re-entering Sierra Leone, or the fact that
it presumes such individuals to be its opponents.11 Thus,
the IJ did not err in refusing to grant relief under the
Convention Against Torture.
no longer in power; therefore Tarawally cannot establish that any torture
by the AFRC/RUF is at the instigation or with the acquiescence of the
current government. See Lukwago v. Ashcroft, 329 F.3d 157, 183 (3d
Cir. 2003) (upholding denial of relief under Convention because
petitioner alleged he would be tortured by the LRA rebels and since this
was a guerilla group that fought the government, the government did not
acquiesce in the LRA activities); Amanfi v. Ashcroft, 328 F.3d 719, 726
(3d Cir. 2003) (upholding denial of relief under Convention because
petitioner did not show that any public official had “awareness of this
torture” by private individuals but refused to intervene and provide
protection).
It might be possible to argue that the AFRC/RUF should be viewed as
a government entity since they were formerly in power, the Sierra Leone
government is not particularly stable, and the AFRC/RUF might regain
control at any moment. Nonetheless, in light of Tarawally’s failure to
introduce substantial evidence to show the likelihood he will be tortured
by the AFRC/RUF, we need not reach this issue.
11. Cf. Zubeda v. Ashcroft, No. 02-2868, ___ F.3d ___, 2003 WL
21436806 at *14-15 (3d Cir. June 23, 2003) (where documentary
evidence showed that government routinely tortured those it detained, if
IJ took administrative notice of the likelihood that petitioner would be
detained upon his return, petitioner might be entitled to withholding
under the Convention despite adverse credibility determination).
15
VII. CONCLUSION
For the foregoing reasons, we will affirm the decision of
the IJ.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit