Obale v. Atty Gen USA ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-22-2006
Obale v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 05-1109
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-1109
AYUK AKO OBALE,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES *
*(Caption amended pursuant to Rule 43(c), Fed. R. App. Pro.)
Petition for Review of the Order
of the Board of Immigration Appeals
(A95-462-645)
Immigration Judge: Honorable Miriam K. Mills
Argued December 13, 2005
Before: SLOVITER, SMITH, and STAPLETON,
Circuit Judges.
(Filed: June 22, 2006 )
John L. Sesini (Argued)
Milwaukee, WI 53233
Attorney for Petitioner
Linda S. Wernery
John M. McAdams, Jr. (Argued)
United States Department of Justice
Office of Immigration Litigation
Washington, DC 20044
Attorneys for Respondent
OPINION OF THE COURT
SLOVITER, Circuit Judge.
In this petition for review from a final order of removal
entered by the Board of Immigration Appeals (“BIA”) the
petitioner, Ayuk Ako Obale (“Obale”), argues that the decision
of the BIA was not supported by substantial evidence. She also
moves for a stay of the voluntary departure period. Before we
consider the merits of the stay request, we must decide the
threshold issue of whether we have jurisdiction to issue the stay.
I.
Obale is a twenty-eight-year-old native and citizen of
Cameroon who was admitted to the United States on or about
November 29, 1997 on a non-immigrant, F-1 visa. She
overstayed her visa, which expired on June 1, 1999. On July 3,
2002, the Government issued a Notice to Appear charging Obale
with removability from the United States under section
237(a)(1)(B) of the Immigration and Nationality Act (“INA”).
Obale admitted that she was removable as charged and sought
relief in the forms of asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). An
Immigration Judge (“IJ”) denied Obale’s applications for relief
but granted her a sixty-day period to voluntarily depart before an
order for removal to Cameroon would take effect.
The BIA affirmed the IJ’s decision without opinion, and
granted Obale a thirty- day voluntary departure period from the
date of its order. Two days before expiration of the period in
which Obale could voluntarily depart, she sought review in this
court of the BIA decision as well as a stay of removal and of the
2
thirty-day period for voluntary departure pending appellate
review. This court granted Obale’s motion for a stay of removal,
but referred the motion for stay of voluntary departure to a
merits panel to resolve the question of our jurisdiction to grant
such a stay.
II.
The question of our jurisdiction to stay the remaining two
days of the thirty-day period in which Obale must voluntarily
depart is one of first impression for this court.1 As we noted in
Reynoso-Lopez v. Ashcroft, 369 F.3d 275 (3d Cir. 2005), the
Attorney General will grant an alien voluntary departure as an
1
Several other courts of appeals have addressed this
question. The majority of them hold that courts of appeals have
jurisdiction to stay the voluntary departure period, either because
courts of appeals have equitable power to issue a stay or because
28 U.S.C § 2349 contains a statutory grant of jurisdiction. See, e.g.,
Bocova v. Gonzales, 412 F.3d 257, 267 (1st Cir. 2005) (“We
regard [28 U.S.C § 2349] as authorizing courts of appeals, in
immigration cases, to suspend (that is, to stay) the running of
unexpired voluntary departure periods.”); Lopez-Chavez v.
Ashcroft, 383 F.3d 650, 653 (7th Cir. 2004) (citing approvingly
those courts holding “that courts retain the equitable power to stay
voluntary departure orders”); Rife v. Ashcroft, 374 F.3d 606, 615
(8th Cir. 2004) (“The grant or denial of a stay pending appeal is a
customary part of the judicial function.”) (citing Fed. R. App. P.
8); El Himri v. Ashcroft, 344 F.3d 1261, 1262 (9th Cir. 2003)
(adopting Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1175-78
(9th Cir. 2003) (Berzon, J., concurring) (holding that courts of
appeals have both equitable jurisdiction and a statutory grant of
jurisdiction over motions to stay the voluntary departure period));
Nwakanma v. Ashcroft, 352 F.3d 325, 327 (6th Cir. 2003) (holding
that “equitable power of the courts of appeals extends to stays of
voluntary departure”); but see Ngarurih v. Ashcroft, 371 F.3d 182,
193 (4th Cir. 2004) (holding that Section 1229c specifically
precludes review of a denial of a request for voluntary departure).
3
alternative to removal under certain circumstances.2 Permission
for voluntary departure is significant because it allows the alien
to depart the United States at his or her own expense without
being subject to the penalties and restrictions that removal
imposes. An alien who is removed may not reenter the United
States without the Attorney General’s permission for ten years.
Id. at 279. In contrast, an alien who is granted voluntary
departure may reenter the United States once he or she has
obtained proper documentation. Id. The Government contends
that we do not have jurisdiction over Obale’s motion to stay the
period of voluntary departure because “the authority to reinstate
or extend the privilege of voluntary departure is solely within the
discretion of the Attorney General.” Resp’t Letter Mem. dated
Jan. 11, 2006, at 4.
No extensive citation is needed for the principle that
“[t]he jurisdiction of the Courts of Appeal is limited to that
conferred by statute.” Vineland Chem. Co. v. United States,
EPA, 810 F.2d 402, 405 (3d Cir. 1987). Thus, our jurisdiction
over Obale’s motion, if we have it, must be conferred by the
INA or other relevant statute. See Union Switch & Signal Div.
Am. Standard Inc. v. United Elec., Radio and Mach. Workers
Local 610, 900 F.2d 608, 612 (3d Cir. 1990). Although a
statutory basis for jurisdiction is required, we have stated that
“case law caution[s] this court not to construe appellate review
provisions too narrowly.” Williams v. Metzler, 132 F.3d 937,
943 (3d Cir. 1997) (alteration in original) (citation and internal
quotation marks omitted). Moreover, “[t]he presumption of
judicial review in the face of statutory silence has become a part
of the fabric of the Administrative Procedure Act.” United
2
An alien is eligible for voluntary departure when the alien
has been physically present in the United States for a period of at
least one year immediately preceding the date the notice to appear
was served; the alien is and has been a person of good moral
character for at least five years immediately preceding the alien’s
application for voluntary departure; the alien is not deportable
under section 1227(a)(2)(A)(iii) or section 1227(a)(4); and the alien
has established by clear and convincing evidence that s/he has the
means to depart the United States and intends to do so. 8 U.S.C.
1229c(b)(1)(A)-(D).
4
States v. Herman, 589 F.2d 1191, 1210 (3d Cir. 1978) (Garth, J.,
concurring in part and dissenting in part). To support a finding
that Congress intended to preclude judicial review of an
administrative action, there must be “clear and convincing
evidence,” such as that “provided by the language of the statute.”
Southern Ry. Co. v. Seaboard Allied Milling Corp., 442 U.S.
444, 462 (1979) (citation and internal quotation marks omitted).
When reviewing agency decisions, courts of appeals have
jurisdiction “of the proceeding.” 28 U.S.C. § 2349(a).3 In the
immigration context, there are numerous exceptions to this
general grant of jurisdiction. The INA expressly precludes our
jurisdiction to review either a denial or a grant of a request for
voluntary departure. See 8 U.S.C. § 1229c(f) (“No court shall
have jurisdiction over an appeal from denial of a request for an
order of voluntary departure . . . , nor shall any court order a stay
of an alien’s removal pending consideration of any claim with
respect to voluntary departure.”); see also 8 U.S.C. §
1252(a)(2)(B)(I) (“[N]o court shall have jurisdiction to review . .
. any judgment regarding the granting of relief under section . . .
1229c[.]”) In addition, this court has held that it does not have
jurisdiction to reinstate the period of voluntary departure after it
has expired. Reynoso-Lopez, 369 F.3d at 280.
These statutory provisions may suggest that we have no
jurisdiction to review a motion for a stay of voluntary departure,
but they do not so provide explicitly. “[W]henever Congress
wanted to oust the jurisdiction of the courts, it not only knew
how to do it but did so in no uncertain terms.” Arrow Trans. Co.
v. Southern Ry. Co., 372 U.S. 658, 679 (1963) (Clark, J.,
dissenting); see also Chamakov v. Blackman, 266 F.3d 210, 214
(3d Cir. 2001). It follows that we have jurisdiction over all
3
We note that the word “proceeding” is not defined in the
statute. Thus, we must interpret the term according to its “ordinary
meaning.” See Heil-Coil Corp. v. Webster, 352 F.2d 156, 167 (3d
Cir. 1965) (en banc). Black’s Law Dictionary defines
“proceeding” as “[t]he regular and orderly progression of a
lawsuit, including all acts and events between the time of
commencement and the entry of judgment.” Black’s Law
Dictionary 1241 (8th ed. 2004).
5
matters related to a particular proceeding except where Congress
has explicitly stated otherwise. Given that Congress has
explicitly stated the courts of appeals may not hear appeals from
grants or denials of voluntary departure, it is reasonable to
conclude that if Congress wished to strip this court of
jurisdiction to grant stays of voluntary departure, it would have
done so. Inasmuch as Obale’s petition for a stay of the period of
voluntary departure is a part of the proceedings below and
Congress has not explicitly denied this court jurisdiction over
such a motion, we conclude, in accordance with the majority of
the courts of appeals that have considered the issue, see note 1
supra, that we have jurisdiction over Obale’s motion.
The Government argues that we answered the question of
our jurisdiction in Reynoso-Lopez, where we held that we do not
have jurisdiction to reinstate the period of voluntary departure
after it expires. According to the Government, the fact that
Obale characterizes her request as a “stay” of the voluntary
departure period, rather than a reinstatement or extension, is
irrelevant.4
We reject the Government’s contention that our holding
in Reynoso-Lopez governs this case. In Reynoso-Lopez, we
addressed the narrow issue of whether a court may extend the
period of voluntary departure after it had terminated. We noted
that regulations promulgated pursuant to IIRIRA clearly state
that “‘[a]uthority to extend the time within which to depart
voluntarily specified initially by an immigration judge or the
Board is only within the jurisdiction of the district director, the
Deputy Executive Associate Commissioner for Detention and
Removal, or the Director of the Office of Juvenile Affairs.’” 369
4
To support this contention, the Government cites our non-
precedential opinion in Hadi v. Att’y Gen., No. 04-3343, 2005 WL
2811787 (3d Cir. Oct. 27, 2005), in which we stated that “[w]e find
this difference legally insignificant.” Id. at *5. We note that
because our opinion in Hadi is non-precedential, we are not bound
by it. See Fallon Elec. Co. v. Cincinnati Insur. Co., 121 F.3d 125,
128 n.1 (3d Cir. 1997) (“[T]he Court does not regard such opinions
as binding precedent.”). Thus, it has no bearing on whether we
have jurisdiction over Obale’s stay request.
6
F.3d at 280 (alteration in original) (quoting 8 C.F.R. 1240.26(f)).
We concluded that under IIRIRA, the executive branch is given
the sole authority to reinstate a voluntary departure period after it
has expired.
We considered the effect of Reynoso-Lopez in Kanivets
v. Gonzales, 424 F.3d 330 (3d Cir. 2005), where we noted its
limited holding. In Kanivets, we held that the alien’s timely
motion to reopen tolled the voluntary departure period until the
BIA decided the merits of the case. We stated, “Reynoso-Lopez .
. . is . . . distinguishable. . . . That is a different situation from
that presented here where we hold that tolling applies during the
period of time that the BIA deliberates on a timely motion to
reopen.” Id. at 335. To the extent that Reynoso-Lopez contains
language that suggests that its analysis extends to motions for
stays of voluntary departure, 369 F.3d at 283, such language is
dicta.5 The language in Reynoso-Lopez that discusses the
similarities between tolling and reinstatement is not necessary to
the holding in that case.
Unlike the power to extend or reinstate the voluntary
departure period, the power to stay it is part of the federal courts’
traditional equitable powers. “The power to stay is incidental to
the power inherent in every court to dispose of cases so as to
promote their fair and efficient adjudication.” United States v.
Breyer, 41 F.3d 884, 893 (3d Cir. 1994). “Unless otherwise
provided by statute, all the inherent equitable powers of the
[federal courts] are available for the proper and complete
exercise of [the courts’] jurisdiction.” Porter v. Warner Holding
Co., 328 U.S. 395, 398 (1946); see also Tanimura & Antle, Inc.
v. Packed Fresh Produce, Inc., 222 F.3d 132, 137 (3d Cir. 2000)
(citation and quotation marks omitted) (stating that “absent a
clear congressional command to the contrary, federal courts
retain their authority to issue injunctive relief in actions over
which they have jurisdiction”). We find no indication that
5
Dictum is “‘a statement in a judicial opinion that could
have been deleted without seriously impairing the analytical
foundations of the holding[.]’” In re McDonald, 205 F.3d 606, 612
(3rd Cir. 2000) (quoting Sarnoff v. Am. Home Prod. Corp., 798
F.2d 1075, 1084 (7th Cir. 1986)).
7
Congress intended to eliminate this court’s equitable jurisdiction
to grant a stay of the voluntary departure period. Thus, if the
BIA’s grant of voluntary departure is set forth as part of a “final
order” within the meaning of 28 U.S.C. § 1252, this court has
jurisdiction to grant a stay of that period.
III.
“It is hornbook law that an administrative order to be
subject to judicial review must be ‘final’.” Lam Man Chi v.
Bouchard, 314 F.2d 664, 670 (3d Cir. 1963). “[A] final order
need not necessarily be the very last order in an agency
proceeding, but rather, is final for purposes of judicial review
when it impose[s] an obligation, den[ies] a right, or fix[es] some
legal relationship as a consummation of the administrative
process.” Shea v. Office of Thrift Supervision, 934 F.2d 41, 44
(3d Cir. 1991) (alteration in original) (citation, internal quotation
marks, and emphasis omitted).
The generally applicable requirement of finality is
expressly incorporated in the INA, which provides that when
reviewing immigration proceedings, courts of appeals have
jurisdiction to review only “final orders of removal.” Section
1252(b)(9) specifically provides: “Judicial review of all
questions of law and fact . . . arising from any action taken or
proceeding brought to remove an alien from the United States
under this subchapter shall be available only in judicial review of
a final order under this section.” 8 U.S.C. § 1252(b)(9)
(emphasis added).6
6
In addition, section 1252(a)(1) provides that “Judicial
review of a final order of removal . . . is governed only by [28
U.S.C. §§ 2341-2351], except as provided in [§ 1252(b)].”
Section 1252(a)(5) provides that
a petition for review filed with an appropriate court
of appeals in accordance with this section shall be
the sole and exclusive means for judicial review of
an order of removal entered or issued under any
provision of this chapter . . . .
8
The term “order of deportation,” and the point at which
such an order becomes “final,” are defined at 8 U.S.C. §
1101(a)(47).7 That section provides:
(A) The term “order of deportation” means the
order of the special inquiry officer, or other such
administrative officer to whom the Attorney General has
delegated the responsibility for determining whether an
alien is deportable, concluding that the alien is deportable
or ordering deportation.
(B) The order described under subparagraph (A)
shall become final upon the earlier of–
(i) a determination by the Board of
Immigration Appeals affirming such order;
or
(ii) the expiration of the period in which the
alien is permitted to seek review of such order by
the Board of Immigration Appeals.
8 U.S.C. § 1101(a)(47)(A)-(B) (emphasis added).
Over thirty years ago, the Supreme Court held that a
simultaneous grant of voluntary departure did not affect the
finality of an order of removal. In Foti v. INS, 375 U.S. 217
(1963), the Supreme Court noted that “[t]he granting of
voluntary departure relief does not result in the alien’s not being
subject to an outstanding final order of deportation.” Id. at 220
n. 1. Although the Court did not provide citation or explanation
for this assertion, its view was consistent with then-current
administrative regulations. Section 243.1 of volume 8 of the
Code of Federal Regulations, which was originally issued in
1961 and remained in force until 1997, provided that “an order
7
Section 309(d)(2) of IIRIRA provides that “[f]or purposes
of carrying out the Immigration and Nationality Act, as amended
by this subtitle- . . . (2) any reference in law to an order of removal
shall be deemed to include a reference to an order of exclusion and
deportation or an order of deportation.” 110 Stat. 3009 (1996).
9
of deportation, including an alternate order of deportation
coupled with an order of voluntary departure,
. . . shall become final upon dismissal of an appeal by the Board
of Immigration Appeals . . .; or, . . . it shall be final as of the date
of the Board’s decision.” 8 C.F.R. § 243.1 (1997). Courts
relied on Foti and § 243.1 for the proposition that voluntary
departure did not affect the finality of a removal order. See, e.g.,
Karimian-Kaklaki v. INS, 997 F.2d 108, 112 (5th Cir. 1993)
(“The privilege of voluntary departure granted to petitioners is
irrelevant to the finality (and thus appealability) of the BIA
order.”) (citing Foti, 375 U.S. at 219 n.1, and 8 C.F.R. § 243.1
(1993)); Hadera v. INS, 136 F.3d 1338, 1340-41 (D.C. Cir.
1998) (citing Foti, 375 U.S. at 219 n.1, Karimian-Kaklaki, 997
F.2d at 112, and 8 C.F.R. § 243.1 (1997)).
In 2005, however, the Department of Homeland Security
(“DHS”) issued administrative regulations which state that an
order is not final until the period of voluntary departure has
expired.8 The current regulation governing the finality of
8
When the former-INS issued the interim rules in 1997,
following a notice of proposed rulemaking and an abbreviated
comment period, it issued the following explanation regarding the
regulations’ general treatment of voluntary departure periods:
[S]everal commenters requested clarification
regarding the effect of a motion or appeal to the
Immigration Court, BIA, or a federal court on any
period of voluntary departure already granted. . . .
Regarding post-hearing voluntary departure, the
Department considered several options, but has not
adopted any position or modified the interim rule.
The Department has identified three possible
options: no tolling of any period of voluntary
departure; tolling the voluntary departure period for
any period that an appeal or motion is pending; or
setting a brief, fixed period of voluntary departure
(for example, 10 days) after any appeal or motion is
resolved. The Department wishes to solicit
additional public comments on these or other
possible approaches to this issue so that it can be
10
removal orders, the voluntary departure provision of which
appears to have gone wholly unaddressed by the courts since its
issuance in 1997, now reads:
An order of removal made by the immigration
judge at the conclusion of proceedings under
section 240 of the Act shall become final:
(a) Upon dismissal of an appeal by the Board of
Immigration Appeals;
(b) Upon waiver of appeal by the respondent;
(c) Upon expiration of the time allotted for an appeal if
the respondent does not file an appeal within that time;
(d) If certified to the Board or Attorney General, upon the
date of the subsequent decision ordering removal;
(e) If an immigration judge orders an alien removed in the
alien’s absence, immediately upon entry of such order; or
(f) If an immigration judge issues an alternate order of
removal in connection with a grant of voluntary
departure, upon overstay of the voluntary departure
period except where the respondent has filed a timely
appeal with the Board. In such a case, the order shall
resolved when a final rule is promulgated.
Inspection and Expedited Removal of Aliens, 62 Fed. Reg. 10,312,
10,325-26 (Mar. 6, 1997) (interim rule). Curiously, the DHS does
not appear to have ever issued a follow-up statement explaining its
final position with regard to the tolling of voluntary departure on
appellate review. The regulation remained unaddressed as an
interim rule until finalized, without pertinent comment, in 2005.
Execution of Removal Orders, 70 Fed. Reg. 661, 673 (Jan. 5,
2005). By then, the regulation had become a final rule, but the
DHS does not appear to have ever substantively addressed the
question it left open in its commentary to the interim rules.
11
become final upon an order of removal by the Board or
the Attorney General, or upon overstay of any voluntary
departure period granted or reinstated by the Board or the
Attorney General.
8 C.F.R. § 1241.1 (2005).
Section 1241.1(f) provides that when an IJ has issued an
alternate order of removal in connection with a grant of
voluntary departure, the order does not become “final” until the
alien overstays the period for voluntary departure. But, if the
alien files a timely appeal with the BIA, then the order becomes
final either when the BIA issues an order of removal (implicitly
unaccompanied by a grant of voluntary departure) or, if the BIA
reinstates or grants a period of voluntary departure, upon
overstay of the BIA’s new voluntary departure period.
Because § 1241.1(f) of the regulations would be
inconsistent with the statutory definition of a final order of
removal if applied to determine finality for purposes of judicial
review, we decline to enforce it here. As noted supra, the
relevant statute, 8 U.S.C. § 1101(a)(47)(A), provides that an
“order of [removal]” means the order “concluding that the alien
is [removable] or ordering [removal].” Such orders become final
upon “a determination by the Board of Immigration Appeals
affirming such order.” 8 U.S.C. § 1101(a)(47)(B). Thus, the
statutory definition of an order of removal encompasses not only
orders actually ordering removal, but also orders in which an IJ
merely determines that an alien is removable and issues a
contingent order of removal. Accordingly, we conclude that the
IJ determined that Obale was removable on the date she issued
her alternate order of removal and that the BIA’s affirmance of
that determination effected a “final” order on the date of the
BIA’s decision.9
9
Enforcement of 8 C.F.R. § 1241.1 in cases where an alien
voluntarily departs would deprive the alien of the opportunity to
seek judicial review. That is – if there is no final order of removal
until “overstay of any voluntary departure period,” then there is
never a final order when the respondent voluntarily departs in a
timely fashion. Such an outcome would be inconsistent with
12
IV.
We turn now to the substantive standards for evaluating a
motion to stay the running of a previously granted voluntary
departure period. We concur with the courts of appeals that have
held the standard for obtaining a stay of removal also applies to
stays of voluntary departure.10 See, e.g., Bocova, 412 F.3d at
269-70; Rife, 374 F.3d at 616; El Himri v. Ashcroft, 344 F.3d
1261, 1262 (9th Cir. 2003); Nwakanma v. Ashcroft, 352 F.3d
325, 327 (6th Cir. 2003).
Congressional intent. Congress enacted 8 U.S.C. § 1252(b)(3)(B)
in order to permit judicial review of a removal order even if the
alien has departed the United States. See Reynoso-Lopez, 369
F.3d at 281 (citing 8 U.S.C. § 1252(b)(3)(B)); cf. 8 U.S.C. §
1105a(c) (1994) (repealed). Moreover, § 1241.1(f)’s suggestion
that the time period for filing a timely petition for review in a
situation like this begins to run on the date the petitioner overstays
his voluntary departure is inconsistent with the common practice of
the BIA and of courts of appeals. See, e.g., In re Goolcharan, 23
I. & N. Dec. 5 (BIA 2001); Harchenko v. INS, 379 F.3d 405, 409
(6th Cir. 2004).
We note, however, that § 1241.1 may have been intended
solely to specify when an order of removal may be executed, as
opposed to when an order of removal is final for purposes of
review. Indeed, this may explain the Government’s failure to
mention the regulation in its briefing.
10
Courts are divided on the issue of whether courts should
read a petition for a stay of removal as implicitly including a
petition for stay of voluntary departure. The Sixth, Eighth, and
Ninth Circuits incorporate a request for a stay of departure into
requests for stay of removal. See Macotaj v. Gonzales, 424 F.3d
464, 467 (6th Cir. 2005); Rife, 374 F.3d at 616; Desta, 365 F.3d at
745-46. The First and Seventh Circuits have rejected that view and
require a particularized request for a stay of voluntary departure.
See Bocova, 412 F.3d at 268; Alimi v. Ashcroft, 391 F.3d 888,
892-93 (7th Cir. 2004). We express no view on the question.
13
We apply the standard for granting a preliminary
injunction when examining a petition for a stay of removal,
Douglas v. Ashcroft, 374 F.3d 230, 234 (3d Cir. 2004), and
therefore also when considering a petition for a stay of voluntary
departure. Under the preliminary injunction standard, a
petitioner requesting a stay of removal must demonstrate: (1) a
likelihood of success on the merits of the underlying petition; (2)
that irreparable harm would occur if a stay is not granted; (3)
that the potential harm to the moving party outweighs the harm
to the opposing party if a stay is not granted; and (4) that the
granting of the stay would serve the public interest. Id. at 233.
Because this court, applying this test, previously granted
Obale’s petition for a stay of removal, we will also grant the
petition for a stay of voluntary departure pending our final
decision on the merits of this case. See Desta, 365 F.3d at 748
(“If an alien is eligible for a stay of removal, he is necessarily
eligible for a stay of voluntary departure.”); but see Bocova, 412
F.3d at 270 (concluding that “there may be cases in which an
alien is entitled to a stay of removal but not a stay of voluntary
departure”); Alimi, 391 F.3d at 892-93 (same).
V.
To qualify for asylum, Obale must demonstrate that she
meets the statutory definition of “refugee” under the INA. A
refugee is “[a]ny person who is outside any country of such
person's nationality . . . and who is unable or unwilling to return
to . . . that country because of persecution or a well-founded fear
of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion
. . . .” 8 U.S.C. § 1101(a)(42).
The threshold for establishing eligibility for withholding
of removal is higher than that for establishing entitlement to
asylum and requires the alien to demonstrate a “clear
probability” that, upon removal to the country of origin, his or
her “life or freedom would be threatened on account of one of
the statutorily enumerated factors.” Senathirajah v. INS, 157
F.3d 210, 215 (3d Cir. 1998). An applicant who does not qualify
for asylum necessarily does not qualify for withholding of
14
removal. Guo v. Ashcroft, 386 F.3d 556, 561 n.4 (3d Cir. 2004).
To qualify for relief under the CAT, an applicant for relief bears
the burden of proving through objective evidence that “it is more
likely than not” that s/he would be “tortured” in the country to
which the applicant would be removed. Wang v. Ashcroft, 368
F.3d 347, 349 (3d Cir. 2004); 8 C.F.R. § 1208.16(c)(2).
Where, as here, the BIA affirms the IJ's decision without
opinion, “we review the IJ's opinion and scrutinize its
reasoning.” Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003)
(en banc). Review of an IJ’s decision is conducted under the
substantial evidence standard, which requires that administrative
findings of fact be upheld “unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B); Zheng v. Gonzales, 417 F.3d 379, 381 (3d Cir.
2005). “‘[D]eference is not due where findings and conclusions
are based on inferences or presumptions that are not reasonably
grounded in the record as a whole.’” Balasubramanrim v. INS,
143 F.3d 157, 161 (3d Cir. 1998) (quoting Cordero-Trejo v. INS,
40 F.3d 482, 487 (1st Cir. 1994)).
A.
In her asylum application, Obale stated that she feared
persecution by the Cameroonian government based on her
political opinions. She and her family had been active in the
Southern Cameroon National Counsel (“SCNC”), a group that
advocates for greater rights for Anglophone Cameroonians and
secession from Cameroon. Natives of the Anglophone regions
of Cameroon suffer disproportionately from human rights
violations at the hands of the government and its security forces.
The 2003 State Department Country Report on Cameroon stated
that the Cameroonian government’s human rights record is poor,
and there have been numerous reports of government forces
arresting and detaining opponents of the government for long
periods of time without bringing any charges.
Obale testified that she believed that her father, who was
the Provincial Chief of National Security in Cameroon’s
northern province, was executed by government forces for his
sympathy for SCNC. Government forces went to Obale’s home
15
seeking her father and took him away with them. The day after
taking him from the family, Obale’s family was informed that
her father was dead.
Obale stated that her two uncles, Agbor Jerome and
Agbor Bessong, were also active in SCNC. They fled Cameroon
and were granted asylum in Germany and the United States,
respectively. Agbor Jerome returned to Cameroon and was
rumored to have been poisoned by Cameroonian government
forces as a result of his SCNC activities.
Obale testified that she was also active in SCNC, which
she joined shortly after her father’s death. She was an active
demonstrator and was arrested and detained three times as a
result. She testified that her captors would threaten her and
“push,” “grab,” and “grope” her. In July 1996, she was arrested
for participating in a demonstration. She was detained for one
night. In March 1997, she was again arrested for demonstrating
and was detained for three days. In April 1997, two policemen
came to Obale’s home and took her to the police station. She
alleges that she was threatened and forced to sign a statement
promising not to demonstrate again.
Obale also stated that her brother, Nkongho Obale, and
sister, Agbor Obale, were involved with the SCNC and were
seeking asylum in the United States.11 Obale’s brother’s
petition for asylum was granted. Her sister’s application was
deemed time- barred because it was filed more than one year
after she had entered the county.12
11
Agbor Obale was allegedly Obale’s twin sister, though
Obale did not initially so testify.
12
The Government contends that Obale’s petition for
asylum is also time barred pursuant to 8 U.S.C. § 1158(a)(2)(B);
it was filed approximately three years after her visa expired and
five years after she entered the country. Neither the IJ nor the BIA
made any finding regarding the timeliness of the petition. 8 U.S.C.
§ 1158(a)(3) provides that “[n]o court shall have jurisdiction to
review any determination of the Attorney General” regarding the
timeliness of a petition. Because the Attorney General has not
16
The IJ initially expressed an inclination to find Obale
credible, but continued Obale’s asylum hearing in order to
permit the Government to submit Obale’s sister and brother’s I-
589s 13 into evidence. After reviewing Agbor Obale and
Nkongho Obale’s respective I-589s, the IJ denied Obale’s
petition for relief. Neither Agbor nor Nkongho made any
mention of Obale in their applications. Nkongho’s I-589 only
referred to the general suffering of the women in his family, with
no specific reference to his sisters. Moreover, Obale did not
mention Agbor in her I-589.
The IJ concluded that there was “a little credibility
problem” stating that “[t]he absence of a reliable proof of the
twin is significant, because it would have provide [sic]
corroboration that the Court would reasonably expect the
respondent to show in support of her claim.” App. at 7-8. The IJ
also found “implausible [Obale]’s explanation as to how she lost
her birth certificate, and could not otherwise obtain another
original copy[.]” App. at 5. Therefore, she denied Obale all
forms of relief.
B.
The IJ’s bases for denying Obale relief are somewhat
confusing because the IJ appears to have confused lack of
corroboration with lack of credibility. Nonetheless, a close
reading of the opinion demonstrates that the IJ made an adverse
credibility finding and also found that Obale failed to offer
reasonable corroboration for her claim.
The IJ’s rejection of Obale’s credibility flowed in
substantial part from a lack of sufficient corroboration of
Obale’s claims. While there were some small discrepancies in
made a determination regarding the timeliness of Obale’s petition,
we will disregard its potential untimeliness and evaluate the merits
of the case.
13
An I-589 is an application for asylum and withholding of
removal.
17
Obale’s testimony, the IJ’s conclusion was mainly based on
various areas in which corroboration was lacking–namely in
Obale’s brother and sister’s I-589s and their failure to discuss
Obale’s persecution.
This court has made clear that “corroboration and
credibility, although intuitively related, are distinct concepts that
should be analyzed independently.” Toure v. Att’y Gen., 443
F.3d 310, 323 (3d Cir. 2006). The IJ’s conflation of credibility
and corroboration was impermissible. Nonetheless, the IJ’s
failure to make a valid credibility determination does not affect
the result in this case because her reasonable requests for
corroboration were inexplicably unmet. As we stated in Chen v.
Gonzales, 434 F.3d 212 (3d Cir. 2005), “even a credible asylum
applicant may be required to supply corroborating evidence in
order to meet [her] burden of proof. If the IJ’s decision . . . is
supported by substantial evidence in the record, then [her] failure
to make a valid credibility determination would not bar this
Court’s denial of the petition for review without a remand.” Id.
at 221 (citation and internal quotation marks omitted).
The BIA has adopted rules which require corroboration in
instances where it is reasonable to expect such proof from a
witness and there is no satisfactory explanation for its absence.
These rules were sustained in Abdulai v. Ashcroft, 239 F.3d 542
(3d Cir. 2001), in which this court observed that even where an
applicant is credible, corroboration may be required if the
applicant is to meet her burden of proof. Id. at 554; see also
Chen, 434 F.3d at 221.
The BIA’s rule on corroboration involves a three step
analysis: (1) an identification of facts for which it is reasonable
to expect corroboration; (2) the presence or absence of such
corroboration in the record; and (3) the adequacy of applicant's
explanation for its absence. In re S-M-J-, 21 I. & N. Dec. 722,
725 (BIA 1997). The third prong presumes that the IJ offers a
petitioner an opportunity to explain the absence. See Mulanga v.
Ashcroft, 349 F.3d 123, 136 (3d Cir. 2003) (holding that the IJ
erred by not alerting the petitioner during the removal
proceedings that the absence of corroboration of relevant facts
would lead to the denial of her application, thereby giving her an
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opportunity to explain her inability to corroborate).
The IJ’s expectation that Obale’s siblings would mention
Obale’s persecution in her I-589 and thus corroborate her
testimony is entirely reasonable. The IJ noted, “[b]ased on the
alleged level of persecution [sic] the respondent . . . [t]he court
would reasonably expect the brother who testified that he had
knowledge of respondent’s arrest and detention, to mention it
specifically in his I-589[.]” App. at 7. Agbor Obale was
Obale’s roommate and the two lived together in Delaware.
Obale could easily have met the IJ’s request for corroboration of
her alleged persecution and the existence of a twin sister by
having her sibling testify.
The IJ clearly engaged in the first two steps of the
analysis by noting the reasonable information she sought and its
absence from the record. In addition, she continued the hearing
twice specifically in order to have an opportunity to review
Obale’s siblings’ I-589s. She stated, “this is a close case, it
really is, right now . . . and that’s why I really want to see the . . .
siblings [sic] application.” A.R. 202. Therefore, Obale was on
notice that the contents of these applications were of great
import to the IJ and might be dispositive. Nonetheless, she
completely failed to provide any explanation for the fact that the
asylum applications of her siblings make no reference to her past
persecution.
VI.
Because Obale failed to provide reasonable corroboration
of her claim, we will deny her petition for review. Accordingly,
the remaining two days in the thirty day period in which Obale
may voluntarily depart the United States in accordance with the
BIA’s order shall begin to run with the issuance of the mandate
in this appeal.
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