NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 13-1058

____________

LOSSENY DOSSO,

 Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

 Respondent

____________

On Petition for Review of an Order of the Board of Immigration Appeals

Agency No. A073-189-051

____________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 11, 2014

Before: RENDELL, CHAGARES, and JORDAN, Circuit Judges.

(Opinion Filed: July 16, 2014)

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OPINION

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CHAGARES, Circuit Judge.

Losseny Dosso petitions for review of a December 12, 2012 decision of the Board 

of Immigration Appeals (“BIA”) approving the Immigration Judge (“IJ”)’s decision 

granting the Department of Homeland Security (“DHS”)’s motion to pretermit Dosso’s 
2

application for cancellation of removal and ordering his removal to Cote d’Ivoire. For 

the reasons that follow, we will deny Dosso’s petition for review.

I.

We write solely for the parties and therefore recite only the facts that are necessary 

to our disposition. Dosso, a native and citizen of Cote d’Ivoire, was admitted to the 

United States on or about November 2, 1991, as a nonimmigrant visitor with 

authorization to remain for a temporary period. Dosso remained in the United States 

beyond the time period authorized, and submitted an application for asylum with the 

former Immigration and Naturalization Service in 1993. The record does not indicate 

whether this application was ever adjudicated. In April 2005, Dosso submitted a second 

asylum application, in which he asserted that he left Cote d’Ivoire due to past persecution 

and that he fears future persecution on account of his religious beliefs and ethnicity. The 

asylum officer referred Dosso’s case to an IJ, and DHS initiated removal proceedings 

against Dosso by filing a Notice to Appear, charging him with removability pursuant to 8 

U.S.C. § 1227(a)(1)(B). In October 2005, Dosso, through counsel, admitted the 

allegations in the Notice to Appear and conceded removability, but thereafter resubmitted 

his asylum application and additionally sought withholding of removal, protection under 

the Convention Against Torture (“CAT”), and cancellation of removal. 

In June 2008, following an administrative hearing, the IJ granted Dosso’s 

application for cancellation of removal.1

 At the hearing, Dosso testified that he was the 

 1 Cancellation of removal is available to an alien who is inadmissible or deportable from 

the United States if the alien: “(A) has been physically present for a continuous period of 
3

sole caretaker for his then ten-year-old son, Bekro, who is a United States citizen. Dosso 

explained that while Bekro’s mother, Massea Dosso, was in the United States, he had not 

seen her since Bekro was five years old and he did not know her whereabouts. He also 

testified that Bekro lived with him, and that he was solely responsible for Bekro’s 

emotional and financial well-being. The IJ determined that Dosso’s son would suffer 

extreme hardship if Dosso was removed, in view of the “abandonment of the mother and 

the ethnic conflict in Ivory Coast.” Appendix (“App.”) 143. 

During the hearing, Dosso initially testified that another of his children, his older

son Aboubakar, was living in Cote d’Ivoire. However, after cross-examination and a 

reminder from the IJ that DHS had the ability to search its databases for Aboubakar’s 

name and birth date to determine whether he was in the United States, Dosso admitted 

that Aboubakar was also living with him in the United States. Dosso testified that he had 

previously lied because he was “scared” for Aboubakar, and a friend had advised him 

that it would be “dangerous” to reveal that Aboubakar was in the United States because 

Aboubakar could be deported. App. 138. The IJ accepted Dosso’s explanation, but told 

him that by “trying foolishly to protect Aboubakar, you could be jeopardizing Bekro’s 

life.” App. 139. The IJ then asked if Dosso was lying about “Massea, the mother of [his] 

 

not less than 10 years immediately preceding the date of such application; (B) has been a 

person of good moral character during such period; (C) has not been convicted of 

[certain] offense[s]”; and “(D) establishes that removal would result in exceptional and 

extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the 

United States or an alien lawfully admitted for permanent residence.” 8 U.S.C. § 

1229b(b)(1). Cancellation of removal is discretionary: the Attorney General may, but is 

not required to, grant cancellation, even when if the statutory criteria are met. See Pareja 

v. Att’y Gen., 615 F.3d 180, 186 (3d Cir. 2010).
4

children, that [he] lost touch with her, it’s been five years and [he] ha[d] no contact with 

her,” and Dosso swore to the truthfulness of that statement. App. 140. Accordingly, the 

IJ granted Dosso’s application for cancellation of removal. However, the IJ instructed 

the parties that, should DHS discover additional evidence regarding the location of 

Bekro’s mother, the IJ would entertain a motion to reopen, and it would not be denied 

“solely on the grounds that the evidence was otherwise [previously] discoverable.” App. 

141. Counsel for both parties agreed that this was fair. App. 142. The IJ noted that “[a]s 

a matter of discretion, . . . [Dosso] came very close to having [his] case denied” because 

of his testimony regarding Aboubakar. App. 143. Because the IJ granted Dosso’s 

application for cancellation of removal, he did not address Dosso’s eligibility for asylum, 

withholding of removal, or relief under the CAT.2

 

The following month, DHS filed a motion to reopen Dosso’s removal proceedings, 

asserting that it had newly discovered evidence that Dosso had lied during his hearing 

regarding the alleged abandonment of Bekro by his mother. In support of the motion, 

DHS included an official report documenting an investigation undertaken by Immigration 

and Customs Enforcement Special Agent Alexander Zuchman and Philadelphia Police 

Detective Marta Santos. See App. 49. The report, which was prepared and signed, but 

not sworn, by Special Agent Zuchman, stated that he and Detective Santos had obtained 

information through various database checks that Massea Dosso was working out of a 

hair salon in Philadelphia. On July 19, 2008, they went to the salon to interview her. 

 2 The record is silent on the status of Dosso’s claim under the CAT, and he does not 

appear to mention it in subsequent proceedings.
5

After several minutes, Special Agent Zuchman called Massea Dosso, and she answered 

and informed him she would be at the salon in a few minutes. She arrived in a taxi cab 

driven by petitioner Dosso. The report states that it was “evident that Losseny Dosso 

knows where Massea Dosso works, how to contact her if needed, and where she lives.” 

App. 50. The officers interviewed Massea Dosso, who informed them that she and 

petitioner Dosso were separated and lived apart, that she is the mother of both Aboubakar 

and Bekro Dosso, that both children live with petitioner Dosso, and that she and 

petitioner Dosso “both” care for the children. App. 50. 

In October 2008, the IJ granted the motion to reopen and the Government filed a 

motion to pretermit Dosso’s application for cancellation of removal, arguing that Dosso 

could no longer demonstrate good moral character because he had provided false 

testimony under oath in order to gain a benefit under the Immigration and Naturalization 

Act (“INA”). Dosso submitted a reply, arguing that he continued to meet the statutory 

requirements for cancellation of removal and that the information included in the 

investigative report was unreliable. The reply also stated that, based upon the advice of 

counsel, Dosso would invoke his Fifth Amendment right not to incriminate himself and 

would not submit an affidavit in response to DHS’s motion to pretermit. He encouraged 

the IJ not to draw an adverse inference from his refusal to submit an affidavit. 

Subsequently, at a May 2009 hearing, the IJ noted that, in a prior conference 

between the parties, DHS had indicated that there was a possibility that Dosso would be 

prosecuted in federal court because of his prior false testimony and had given Dosso an 

offer to stipulate to an order of removal and withdraw all applications for relief in 
6

exchange for avoiding criminal prosecution. Dosso declined to do so, and the IJ 

continued the hearing two more times to await a determination as to whether the United 

States Attorney’s Office would prosecute Dosso. On March 15, 2011, the hearing 

resumed and Dosso stated that he intended to rest his case on his reply to the motion to 

pretermit. DHS confirmed that no criminal prosecution against Dosso had been initiated 

at that time. At the hearing, before the IJ rendered his decision, he asked Dosso’s 

attorney if “there was any other further evidence or further motion to be made by the 

respondent,” and Dosso’s attorney replied in the negative. App. 166. The IJ asked if it 

was “only the cancellation application that will be the subject of this decision in light of 

the prior withdrawals of the 589,” and Dosso’s attorney responded, “Right, that’s as I 

understand it, yes.” App. 166-67. 

The IJ then rendered an oral decision granting the motion to pretermit, finding that 

Dosso was not a person of good moral character because, as demonstrated by the 

information contained in the investigative report, he had given false testimony for the 

purpose of obtaining a benefit under the immigration laws, in violation of 8 U.S.C. § 

1101(f)(6). The IJ found that the investigative report was a “presumptively reliable 

document at least standing for the proposition that the respondent’s testimony that he has 

not seen his ex-wife, that is, the mother of Bekro, for a number of years was inherently 

implausible, factually incorrect, and a false statement in all material respects,” and “[t]o 

the extent that there were any mitigating circumstances or explanations that might have 

explained why the respondent showed up driving a taxicab and driving his ex-wife to 

work at the hair salon at a period shortly after the hearing,” the “respondent was given an 
7

opportunity to provide an affidavit to explain, or even testify in court today, and he has 

declined to do either.” App. 17-18.

Dosso appealed the decision to the BIA, and the BIA dismissed the appeal on 

December 12, 2012. In relevant part, the BIA concluded that the IJ had not erred in 

accepting the investigative report as evidence of Dosso’s false testimony, explaining that 

“an Immigration Judge may receive into evidence any oral or written statement which is 

material and relevant to any issue in the case” and that such evidence “need[ed] only [to] 

be probative and its use fundamentally fair.” App. 5. The BIA rejected the claim that the 

report was unreliable, noting that “[c]ourts have recognized the inherent trustworthiness 

attributable to ‘public records or reports.’” App. 5. The BIA observed that Dosso “had 

an opportunity to present [] evidence demonstrating the lack of reliability of the report 

but declined to do so,” and the record supported the conclusion that “the respondent’s 

attorney decided not to demand the testimony of the ICE agent.” App. 6. The BIA 

characterized these decisions as tactical ones made by Dosso’s attorney, and noted that, 

absent egregious circumstances, a petitioner is “bound by the tactical decisions and 

actions made by his attorney acting in his professional capacity.” App. 6. The BIA also 

declined to remand Dosso’s case to the IJ for adjudication on his asylum and withholding 

claims, determining that, at the March 15, 2011 hearing, when asked whether Dosso was 

seeking additional relief from removal, counsel indicated that he was only seeking 

cancellation of removal, and Dosso was bound by his attorney’s decision not to pursue 

the asylum claim. App. 6. With the assistance of new counsel, Dosso timely petitioned 

for review of the BIA’s order. 
8

II.3

Where the BIA “issues a decision on the merits and not simply a summary 

affirmance, we review the BIA’s, and not the IJ’s, decision.” Chavarria v. Gonzalez, 446 

F.3d 508, 515 (3d Cir. 2006). When the BIA adopts the IJ’s findings and discusses some 

of the bases for the IJ’s decision, we review both decisions. See Xie v. Ashcroft, 359 

F.3d 239, 242 (3d Cir. 2006). We review the “BIA’s legal decisions de novo, but will 

afford Chevron deference to the BIA’s reasonable interpretations of statutes which it is 

charged with administrating.” Kamara v. Att’y Gen., 420 F.3d 202, 211 (3d Cir. 2005). 

“We review the BIA’s factual determinations under the substantial evidence standard,” 

and we will “affirm the BIA’s findings unless any reasonable adjudicator would be 

compelled to conclude to the contrary.” Toussaint v. Att’y Gen., 455 F.3d 409, 413 (3d 

Cir. 2006). 

III.

Dosso challenges the BIA’s denial of his petition for review on two grounds. 

First, he argues that the IJ and BIA erred in finding that Dosso lacked good moral 

character, because the decisions were based on a finding that Dosso had presented false 

testimony, but that conclusion was based on an unsworn, unsupported, unreliable

investigative report, and Dosso was not given an opportunity to cross-examine the author 

of the report. Second, he asserts that the BIA erred in refusing to remand the case for 

consideration of Dosso’s applications for asylum and withholding of removal, because 

 3 The BIA had jurisdiction over this matter pursuant to 8 C.F.R. § 1003.1(b)(3). We have 

jurisdiction pursuant to 8 U.S.C. § 1252. 
9

both the IJ and Dosso’s attorney were under the mistaken belief that the asylum and 

withholding applications had been withdrawn, and the BIA knew this belief was 

mistaken. 

A. 

An individual in removal proceedings is entitled to “a reasonable opportunity to . . 

. cross-examine witnesses presented by the Government.” 8 U.S.C. § 1229a(b)(4)(B). 

Dosso asserts that he was denied this right despite the IJ’s promising to give it to him,

because the IJ stated, in a hearing on May 29, 2009, that “if respondent were to go 

forward with [his cancellation application] now that there is an investigative report, 

hypothetically, separate and apart from any criminal prosecution, the respondent did not 

wish to withdraw the cancellation application, then I would give the Government an 

opportunity to bring a witness in to authenticate the investigative report and be subject to 

examination on what happened during that examination.” App. 148. Dosso asserts that 

the IJ also stated that “certainly the Government is going to need witnesses to substantiate 

that report.” Dosso Br. 8 (citing App. 74). Dosso argues that he “asserted in various 

filings that he was concerned about the lack of information in the report and its relative 

lack of detail and the fact that it was not a sworn statement.” Dosso Br. 8. Accordingly, 

Dosso argues that his counsel did not waive the right to cross-examination, but rather was 

denied the right to do so despite being promised that right and repeatedly challenging the 

reliability of the report.

We acknowledge that individuals in removal proceedings have both a 

constitutional and statutory right to an opportunity to cross-examine witnesses presented 
10

by the Government. See Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 681 (9th Cir. 

2005). However, there is simply no evidence in the record that Dosso was denied such an 

opportunity here. Dosso does not, and cannot, point to a single passage in the record in 

which he demanded an opportunity to cross-examine the author of the investigative report 

and his request was denied.4 Indeed, his characterization of the exchange that occurred 

between his counsel and the IJ on May 29, 2009 is inaccurate. In response to the IJ’s 

statement that he would give the Government an “opportunity” to bring in a witness to 

authenticate the investigative report, Dosso’s attorney responded, “Right.” App. 148. 

The IJ continued, “And of course the respondent would then have his constitutional rights 

to be concerned about, about what, if anything, he says if he’s recalled as a witness.” 

App. 148. Dosso’s attorney (not the IJ himself, as Dosso asserts), responded, “Right. 

And obviously that would also play into any possible criminal prosecution. Certainly the 

Government is going to need witnesses to substantiate that report. So since that’s in the 

criminal arena, obviously conclusions there would be binding here.” App. 148 (emphasis 

added). A fair reading of this exchange indicates that, not only was the comment 

regarding the “need” for witnesses made by Dosso’s counsel, not the IJ, but also Dosso’s 

counsel was commenting on the need for cross-examination in the criminal, not 

 4 Dosso argues that the record is incomplete, because the record references a master 

calendar hearing that occurred in February 2009, but does not contain a transcript for the 

hearing. However, that hearing, which both parties agree focused only on setting Dosso’s 

deadline to respond to the motion to pretermit, see App. 46, 62, occurred several months 

prior to any discussion of cross-examining the DHS investigator. Dosso’s attorney does 

not assert that his previous counsel requested cross-examination at that hearing. 

Accordingly, for purposes of this appeal, the record is complete, and, even if it is not, 

there is no prejudice in failing to include the transcript of a master calendar hearing 

which both parties agree contained nothing of importance. 
11

administrative, context. Accordingly, it appears from the record that the IJ gave Dosso’s 

counsel an opportunity to request cross-examination of the author of the report, and 

Dosso’s attorney never took advantage of this opportunity. Notably, a “reasonable 

opportunity” is all that is required by 8 U.S.C. § 1229a(b)(4)(B). Dosso also did not take 

advantage of the opportunity, provided by the IJ, to provide evidence to rebut the 

contents of the investigative report or call their veracity into question. The BIA was thus 

correct to characterize the failure to request cross-examination, despite being given an 

opportunity to do so, as a litigation tactic, and “[a]n alien is generally bound by the 

actions of his attorney.” Calla-Collado v. Att’y Gen., 663 F.3d 680, 683 (3d Cir. 2011).

Dosso makes additional arguments regarding the reliability of the investigative 

report. In immigration proceedings, the Federal Rules of Evidence do not apply, and the 

admissibility of evidence depends on “whether the evidence is probative and whether its 

use is fundamentally fair so as not to deprive the alien of due process of law.” 

Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003) (quotation marks omitted). “In 

the evidentiary context, fairness is closely related to the reliability and trustworthiness of 

the evidence.” Id. (quotation marks omitted). 

Dosso argues that the BIA erred in characterizing the report as an inherently 

reliable “public record” because “the report is not public, but rather is an internal ICE 

document.” Dosso Br. 11. However, this argument is unpersuasive. Even applying the 

Federal Rules of Evidence, there is no requirement that “public records” containing 

hearsay actually be available to the public in order to be admissible. See Fed. R. Evid. 

803(8). Rather, a record or statement of a public office is admissible if it sets out, inter 
12

alia, “in a civil case . . . factual findings from a legally authorized investigation,” and 

“neither the source of information nor other circumstances indicate a lack of 

trustworthiness.” Fed. R. Evid. 803(8)(A),(B). 

In the immigration context, courts have recognized that Government records are 

inherently reliable, and “[t]he burden of establishing a basis for exclusion of evidence 

from a government record falls on the opponent of the evidence, who must come forward 

with enough negative factors to persuade the court not to admit it.” Espinoza v. INS, 45 

F.3d 308, 310 (9th Cir. 1995).5

 This rule is based on the “assumption that public officials 

perform their duties properly without motive or interest other than to submit accurate and 

fair reports.” Id. (quotation marks omitted). In this case, Dosso was given the 

opportunity to come forward with evidence to establish a basis for excluding the 

investigative report, but declined to do so. Even accepting Dosso’s explanation that he 

 5 Dosso argues that, by requiring him to proffer evidence rebutting the contents of the 

investigative report, the IJ and the BIA incorrectly shifted the burden onto him to prove 

that the report was unreliable. He asserts that, because the BIA “specifically invoked” 8 

U.S.C. § 1101(f)(6) as a statutory bar to cancellation of removal under 8 U.S.C. § 

1229b(b)(1)(B), the decision is essentially a finding of inadmissibility for fraud pursuant 

to 8 U.S.C. § 1182(a)(6)(C), and the Government maintains a burden of proof by “clear 

and convincing” evidence when demonstrating removability or inadmissibility. 

However, this is not an accurate characterization of the instant case. In order to qualify 

for cancellation of removal, an applicant must demonstrate, inter alia, that he has “good 

moral character.” See 8 U.S.C. § 1229b(b)(1)(B). With regard to the burden of proof, a 

petitioner seeking cancellation of removal “shall have the burden of establishing that he 

or she is eligible for any requested benefit or privilege and that it should be granted in the 

exercise of discretion.” 8 C.F.R. § 1240.8(d); see also Pareja, 615 F.3d at 186 (noting 

that the Attorney General may cancel an alien’s removal only if “the alien meets her 

burden of establishing eligibility”). Because the investigative report cast doubt upon 

Dosso’s showing that he had met the “good moral character” eligibility requirement, it 

was not error for the BIA to place the burden on him to rebut the information contained 

in the report. 
13

did not want to testify for fear of self-incrimination, there are several items of evidence 

Dosso could have proffered to rebut the contents of the report, including affidavits from 

Massea Dosso, his children, or friends, stating that Massea Dosso had no contact with 

Dosso or the children. Because Dosso failed to provide any such evidence, the BIA did 

not err in finding that the investigative report was reliable. 

B. 

Dosso also asserts that the BIA erred in declining to remand the case for 

adjudication of his asylum and withholding of removal applications. He argues that, 

because the IJ and Dosso’s attorney mistakenly believed Dosso’s asylum and withholding 

applications had previously been withdrawn when the IJ issued his decision on March 15, 

2011, the attorney’s confirmation that Dosso was only pursuing a cancellation of removal 

application at the time was in error, and should be corrected.

Dosso is correct that his asylum and withdrawal applications had not, in fact, been 

withdrawn prior to the March 15, 2011 hearing, as the applications were dismissed 

without prejudice on June 30, 2006, but were subsequently reinstated by a visiting IJ on 

July 26, 2006. However, counsel was, or reasonably should have been, aware of this fact: 

at a hearing on May 29, 2009, the IJ reminded counsel that Dosso had “an asylum claim, 

or at least a withholding claim pending.” App. 146. Subsequently, at the March 15, 2011 

hearing, the IJ gave Dosso’s counsel a chance to make “any further motion,” which he 

declined. App. 166. Dosso’s attorney specifically confirmed the IJ’s understanding that 

it was “only the cancellation application that will be the subject of this decision in light of 

the prior withdrawals of the 589.” App. 166. Given the fact that counsel had been 
14

reminded that the asylum and withholding applications were pending two years prior, it is 

likely that counsel’s decision to withdraw them at the March 15, 2011 hearing was a 

tactical decision to which Dosso was bound, as the BIA concluded. See Calla-Collado, 

663 F.3d at 683. However, even if Dosso’s counsel withdrew these applications in error, 

a client is generally bound by an admission of counsel made during a proceeding, and is 

released only in “egregious circumstances.” See In re Velasquez, 19 I. & N. Dec. 377, 

382 (BIA 1995). There are no such circumstances here: at worst, this was an oversight 

on the part of Dosso’s counsel. Accordingly, we hold that the BIA did not err in 

declining to remand Dosso’s case for consideration of his asylum and withholding 

applications. 

IV.

For the foregoing reasons, we will deny Dosso’s petition for review.