2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit 4-6-2004 

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w . v i l l a no va . e du/thir dc ir c uit_2004/872* The Honorable John R. Gibson, Senior Circuit J udge for the United States Court of

Appeals for t

he Eighth Circuit, sitting by designation
. NOT PRECEDE NTIAL IN THE UNITED STATES COURT OF APPEALS

FO R T HE TH IRD CIR CU IT Case No: 03-1539 ASHRAF ALI MOHAMED, Petitioner
v. JO HN AS HC RO FT , Attorney General of the United States, Respondent

_________________________________ On petiti on for revi ew of a final or der of the Bo ard o f Imm igration Ap peals File No: A72-001- 538

__________________________________ Submitte d pursuant

to Third Ci rcuit

LAR 34.1(a) on March 23, 2004 Be for e: F UE NT ES , SM ITH , and GI BS ON , Circuit Judges, *

(Fil ed: April6, 2004)

____________________ OPINI ON OF THE COURT

_____________________2

SM ITH , Circuit

Judge. Petitioner Ashra f Ali Mohamed appeals the order of t he Board of Immigration Appeals deny ing his petit ion for r elie f from removal. Mohamed claims that the Immigration Judge ( “IJ”) deprived hi m of his ri ght to due process of l aw by pre- judging his t esti mony to be f

alse. We find no merit to this clai m and therefor e affirm the decis ion of the B oard of Im migration A ppeals (“B IA”). I. Mo hame d is an Eg yptian national wh o entered this co untry as a visitor for pleasure on Ju ne 14 , 1991 , with a utho rization to stay until D ecem ber 1 4, 199 1. A fter arriv ing in the Unite d States , Mohamed was informed by a man named Mohamed Al Said that he could appl y for

a green car d prior

to his visa expi ring. To that end, Mohamed
acco mp anied Al S aid an d five other in dividu als on a trip fro m Je rsey City, Ne w Je rsey to Miami, Florida aft er pay ing Al Said $3, 500. Once in Miami, Mohamed w ent to a hotel and met an indi vidual named Ali. Ali took Mohamed and the other men to another location to obt ain photogr aphs. The next day, the men went to t

he Immigration and Naturali zati on Service ( “INS”) Office i n Miami where Ali was prese nt. Aligave M oham ed a c om pleted applic ation f or a w ork a utho rization perm it and h ad his fingerprints taken. Mohamed returned to hi s hotel , where Ali arri ved shortly therea fter with a work authorization card. Mohamed then returned to Jersey City . On December 2, 1991, Mohamed applied for a renewal of hi s work authori zati on card. Duri ng the3

processi ng of this renewal appl ication, t he INS determine d that t he work authori zati on card w as fra udu lent. In Se pte mberof 19 97, Mohamed marr ie d a Uni te d St at es c itiz en, Deni se L. Harrazari . On February8, 1999, t he INS issued a Noti ce to Appear, charging Mohamed with being removable, for overst ayi ng his non-i mmigrant vi sa. Mohamed conceded removabil ity

before the IJ, but reques ted rel ief from r emoval on two grounds: (1) a waiver of document fraud pur suant t o Section 212( i) of t he Immigration and Nati onalit y Act, and (2) a dju stm ent o f sta tus to law ful p erm ane nt re side nt sta tus. In the removal proceedi ngs, Mohamed asserted that he did not know that his initial work authori zati on was fraudulent . As the I J was revie wing Mohamed’s affidavit during the rem oval p rocee ding s, the IJ sta ted: I thi nk if I were a s tranger in the United State s and didn’ t know the la ws, if Ilived in Jer sey Cityand I had to f ly to Miami to get

a work authori zati on card and a pas spo rt an d th en w as f low n ba ck to Jers ey Cit y and had to p ay $3 ,500 for it, I think I w ould believ e that so meth ing w as am iss and this w as no t [a] pa rticularly legal endeavor that I was engagi ng in. The IJ expla ined to Mohamed’s counse l Now , based on wha t I have read in his affidavit . . . it is not plausible to the court that an individ ual in o rder to obtain wo rk au thoriza tion w ould pay $3,5 00, w ould get toge ther wit

h unknown people, fl y fr om, tra vel from Jer sey Cityto [LaGuardia] Airport , fly

from [LaGuardia] Air

port t o Miami, be put i n a motel, have the applic ation f

or the work aut

horizat ion completed by anot

her indi vidual, never see that application, apparently , st ay at Immigration while t

his i ndividualdisappeared and shows up a couple [of] hours later wit h all t he documentati on. I t

hink a reasonabl e man or woman would be suspici ous of that acti vity would have a reas ona ble d oub t that wh at you had don e w as ille gal.4

Ho we ver, the IJ exp lained that he wa s incline d to w aive th e frau d inv olved in obtaini ng the work authorization. When Mohamed expressed hi s desire to te sti fy about the wo rk authorization, the IJ issue d this warn ing to M oham ed’s coun sel: “what you d on’t want to do is have [Mohamed] falsel y t esti fy today bec ause while Iwould waive the fr aud that was i nvolved in obt aining t he work authori zati on, if Idetermi ne that the res pondent is l yi ng to me todayunder oath, I willsend him back very qui ckly .” Mohamed’s testi mony before the IJwas virtually identi cal t o the affi davit whic h was already

before the IJ, includi ng his re peated as sertions that he was unaware at the time that his manner of obtaining a work authorization card was fraudulent. He also explai ned that , subse quent to gaining what he belie ved to be a permanent resi dent vis a, he lost that c ard. Afte r contac ting hi s father -in- law, who was employe d by the United Nations, Mohamed’s father- in-l aw explained t hat the document had not bee n a permanent resi dent vis a, but

a work authori zati on card. Mohamed test ifie d that hi s father -in- law then checked wit

h the INS based on Mohamed’s ali en number, determined that Mohamed had ne ver been issued a w ork autho rization card, and in forme d M oham ed of this fac t. In January , 1992, however , Mohamed was arreste d at theINS office in Phi ladel phia when he tried to g ain a rep lace me nt w ork auth oriz ation card
. The IJ co ncluded that Mo hame d lied unde r oath, explaining that “[r]espon dent’s explanation is prepost erous. The entire explanation is prepost erous. I warned the respo nden t [w hat] w ould happ en if I f ind tha t he is lying to me. T he co urt is sev erely1 Mohamed’s removal to Egy pt pri or to our decisi on did not ous t thi s court of jurisdiction. The sec tion wh ich previou sly governed o ur review , 8 U.S.C . § 1105a (c), which was repeal ed by t he Ill egal Immigr ation Reform and Immigrant Respons ibil ity Act of 199 6, Pub. L . No. 104 -208, 11 S tat. 1570 (“IIRIR A”), preclu ded review of ma tters wh ere th e alie n ha d be en r em ove d. See Newton v . I NS , 622 F.2d 1193, 11 95 (3d C ir. 198 0) . Th e pr ovi si on wh ic h go verns o urju ri sdi ct io n su bse que ntto th e I IRI RA, 8 U.S .C. § 12 52 co ntains n o suc h pro hibition . No r do w e find M oham ed’s c laims to be m oot, because i f his r emoval is affirmed, Mohamed is ineli gible to return to the United State s for a p eriod o f five years. 8 U .S.C. § 118 2(a)(9 )(A)(1 ); see also Steel e v. Black man , 236 F.3d 13 0, 134 n.4 (3 d Cir. 200 1). 5 tempted t o end this case ri ght here and now and order the respondent depor ted .
. . . ” The IJ instr ucted Moh amed’s counsel that, alt hough the respondent com mitted fraud against the IN S an d the c ourt, he wo uld co nside r wh ether e xtrem e hard ship w ould occu r if Mo hame d wa s deported . After hea ring testimony from Mo hame d’s wife, the IJ concluded that no such ext reme hardshi p would occur. He deni ed Mohamed’s petition for w aiver of frau d and p etition for adjustme nt of status. The BIA affirmed the IJ’s decisi on without opi nion on January 27, 2003. This t imelyappeal fol lowed. II. The IJ had jurisdi ction pur suant t o 8 C.F.R. § 208. 2(b) (2002) . The BIA had appell ate j urisdi ction pur suant t o 8 C.F.R. § 1003. 1(b). We exercise appe llate juri sdiction over the BIA’s order pur suant t o § 242 (b) o f the Imm igra tion and Na tion ality A ct. 8 U.S .C. § 1 252 (b); see a lso A bdu lai v. As hcro ft , 239 F.3d 542, 548 -49 (3d C ir. 2001). 1 When the BIA defers to t he IJ, however, we “must re view the deci sion of the IJ. ” Gao v. INS , 299 F.3d 266, 271 (3d Cir. 2002) (ci ting Abdulai , 239 F.3d at 549 n.2). Where the petit ioner al leges a due process vi olati on, we revie w the IJ’s decisi on de novo
.6

Abd ulrah ma n v. A shcro ft , 330 F.3 d 58 7, 59 5-9 6 (3 d C ir. 20 03)
. It is we ll establish ed tha t “[d]e spite the fact th at there is no c onstitu tional rig ht to asy lum, al iens fac ing removal are entitl ed to due proc ess. ” Id . at 596 (citing Abdulai v. Ash croft , 239 F .3d 54 2, 549 (3d C ir. 2001 )). Ho we ver, IJs a re give n bro ad dis cretion in their abili ty to co ndu ct tria l pro cee din gs. See Agui la r- Sol is v. INS , 168 F.3d 565, 569 (1st Cir. 19 99) (“ [A ] party to an imm igration case, lik e any oth er litigan t, is entitled to a full and fair hea ring –no t an id yllic on e.”). In ca se s s uc h a s thi s o ne , w he re th e p etit io ne r’ s f at e r el ie s h ea vi ly

on h is own tes tim on y, w e a ff or d g re at d ef er en ce to th e I J’s as se ss m en t o f c re di bi lity. Dia v. Ash croft , 353 F.3d 228 (3d C ir. 2003 ) (en b anc). H ow ever, a n IJ m ay not m ake th at cred ibility find ing prio r to h earin g th e ev iden ce. H e m ay no t pre -jud ge th e ap plica nt’s t estim ony. We find n o evid ence , how ever, th at the IJ a ssesse d M oham ed’s c redibility prio r to Mohamed’s testi mony. Base d on the affi davit a lready in front of him, which det aile d how M oham ed cla imed to hav e obta ined a wo rk au thoriza tion ca rd, the IJ simp ly expressed doubt that an y reasonable perso n wo uld believe tha t method of gaining a wo rk authori zati on card was not fr audulent . On the affi davit a lone, however, theIJ expl ained that he was incli ned to grant , rat her than de ny, Mohamed’s petition. When Mohamed expr essed his de sire to tes tify, the IJ w arned M oham ed tha t, althou gh h e w as inclin ed to allow a waiver

of past fr aud, the same leni ence would not be gi ven to fraud before the court. An IJ is enti tled to warn the petitioner as to the consequences of providing false7

testimony to the court. N othing in the rec ord supp orts Mo hame d’s assertion that the IJ
con clud ed th at M oha me d w as a liar b efo re h e too k th e sta nd. Furth er, there is no e viden ce in th e reco rd that th e IJ did not allo w M oham ed to testifyfully

and give hi s explanat

ion for t he fraudul ent documents . It was only after Mohamed testifi ed that the IJdetermi ned that

Mohamed had not been truthful and l ied und er oath . This is p recisely w hat the IJ is requ ired to d o–to mak e cred ibility determ ination s. To th e exte nt that th e IJ’s d eterm ination as to M oham ed’s c redibility correla ted w ith his ea rlier disb elief o f M oham ed’s a ffida vit, this w as on ly possible because Mohamed’s tes timonyin no way di ffered fr om the affida vit. As we have expla ined b efore , “[i]m partiality is no t gullibility. . . . If the jud ge did not fo rm jud gm ents of the act ors in t

hose court -house dramas call ed tri als, he could never render dec isi ons.” Abdulrahman , 330 F.3d at 596 (citing In re J. P. Linahan, Inc. , 138 F.2d 650, 654 (2nd Cir. 1943) ). A determinati on by the IJ that a petiti oner has t esti fied fal selyis not impro per, an d there fore is not a v iolation of M oham ed’s d ue pr oces s rights. W e w ill th er efo re aff

irm.