Ould Bah Nagi v. Atty Gen USA , 253 F. App'x 164 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
11-5-2007
Ould Bah Nagi v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1015
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT
No. 06-1015
MOHAMED OULD BAH NAGI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review from an Order of the
Board of Immigration Appeals
(D.C. No. 0312-2: A95-961-829)
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 23, 2007
BEFORE: FISHER, STAPLETON and COWEN, Circuit Judges
(Filed: November 5, 2007)
OPINION
COWEN, Circuit Judge.
Petitioner Mohamed Ould Bah Nagi is a citizen and native of Mauritania. He
entered the United States in 2001 but overstayed his tourist visa. Removal proceedings
commenced in 2003. Nagi raised claims of political asylum, withholding of removal and
Convention Against Torture (“CAT”) relief. The Immigration Judge (“IJ”) rejected
Nagi’s claims, finding Nagi not credible and aspects of his testimony implausible. The IJ
also found Nagi’s asylum application to be untimely. A single member of the Board of
Immigration Appeals (“BIA”) affirmed. This petition followed.
We have jurisdiction to review the BIA’s final order of removal pursuant to 8
U.S.C. § 1252(a)(1). Where the BIA affirms and adopts the decision of the IJ, we will
review the IJ’s decision. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). The IJ’s
factual findings and credibility determinations are reviewed under the “substantial
evidence” standard. Sukwanputra v. Gonzales, 434 F.3d 627, 636 (3d Cir. 2006).
Findings will be upheld as long as they are “supported by reasonable, substantial and
probative evidence on the record considered as a whole.” Tarrawally v. Ashcroft, 338
F.3d 180, 184 (3d Cir. 2003). Administrative findings of fact “are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B); Chen v. Attorney General, 491 F.3d 100, 109 (3d Cir. 2007).
On appeal, Nagi argues: (1) his asylum claim is not time-barred; (2) the IJ’s
adverse credibility determination was not based on substantial evidence; and (3) the one-
member BIA disposition of his case was procedurally improper.
Nagi claims that he will be arrested and tortured upon his return to Mauritania.
He testified that he is well-known to the Mauritanian government as a vocal leader of
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“Conscience and Resistance” (“C&R”), an opposition political party. Nagi claims that he
was previously arrested in 1993 and 1995 in connection with his organization, and
participation in 2 student strikes. He testified that he was beaten and tortured both times,
and held for 8 days in 1993 and 2 days in 1995. Despite these experiences, Nagi did not
fear returning to Mauritania until June 2003, when the Mauritanian government quashed
an attempted military coup. He claims hearing from various family members in early
2004 that the police had gone to his house in Mauritania looking for him, and that a
formal summons had been issued for his arrest.
We note that the scope of our review is limited to Nagi’s withholding and CAT
claims. The IJ determined that Nagi did not file his asylum application within the one-
year limitations period1 and this delay was not excused by changed circumstances in
Mauritania. We are without jurisdiction to review the denial of Nagi’s asylum claim. 8
U.S.C. § 1158(a)(3) (“[n]o court shall have jurisdiction to review any determination of
the Attorney General [as to timeliness of asylum application or changed
circumstances]”); Tarawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003).
We conclude the IJ’s adverse determination is based on substantial evidence.
While some of the enumerated bases for the IJ’s finding do not go to the heart of Nagi’s
claims,2 see Chukwu v. Attorney General, 484 F.3d 185, 189 (3d Cir. 2007)
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Nagi entered in the U.S. in 2001 and did not file for political asylum until 2003.
2
For instance, minor discrepancies in the recall of dates as to when Nagi first met
Yessa (his political mentor) in 1987, when Yessa was arrested for political activism,
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(inconsistencies must pertain to central aspects of petitioner’s claim), there is in the
hearing transcripts and the written decision ample support for her conclusions. For
example, Nagi claimed on the one hand that he was well-known by the Mauritanian
government as a vocal opposition leader since 1998, but on the other that the government
unilaterally offered him paid employment at its embassy in the U.S. Nagi actually worked
for the Mauritanian Embassy from 2002 to 2003. Furthermore, Nagi testified that he did
not fear returning to Mauritania until one week after the June 2003 coup when he heard
that the government was arresting and torturing opposition leaders, including a leader of
C&R. However, his own testimony and supporting documentation also indicate that the
only C&R leader detained was not actually arrested until November 2003.3 By Nagi’s
own description, C&R claims 50 members worldwide and its only public political
activities include one distribution of flyers in 1998 and one organized demonstration in
2001. Nagi was in France from 1995 to 2001 and his own testimony described only
indirect C&R involvement with both activities. Nor was Nagi present for the
demonstration.
We cannot say that the IJ’s findings of implausibility were not grounded in the
record. The IJ’s adverse credibility determination was not based on impermissible
when Yessa left Mauritania, and when the Conscience and Resistance website was
launched are not material to Nagi’s claims of persecution and torture.
3
Even then, it was unclear as to whether that individual was arrested because of his
involvement with C&R or because of his alleged participation in an attempted political
coup.
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conjecture or speculation but supported by “specific, cogent reasons.” See Dia v.
Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc).
There is no basis for disturbing the IJ’s conclusion that Nagi failed to establish a
well-founded fear of persecution. It follows that the IJ did not err in denying Nagi’s
withholding claim. See Guo v. Ashcroft, 386 F.3d 556, 561 n.4 (3d Cir. 2004) (“an
applicant who does not qualify for asylum also does not qualify for withholding of
removal”). Likewise, the IJ’s conclusion that Nagi failed to carry his burden to show that
“it is more likely than not that he ... would be tortured” if returned to Mauritania was not
in error. 8 C.F.R. § 208.16(c)(2); Tarrawally, 338 F.3d at 187.
There is no merit to Nagi’s contention that the BIA erred in not submitting his case
to a three-member panel. The relevant regulations require disposition by a single board
member unless the case falls under one of the enumerated exceptions. 8 C.F.R.
§ 1003.1(e); § 1003.1(e)(4), (5) (single member may affirm with or without opinion);
§ 1003.1(e)(6)(i)-(vi) (criteria for assignment to BIA panel). Since Nagi’s BIA appeal
was focused on the IJ’s factual findings, findings which were not clearly erroneous, the
one-member BIA affirmance was procedurally proper.
For the foregoing reasons, the petition for review will be denied.
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