2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-11-2009

Issiaka v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 07-2691

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-2691

 

BAYO ISSIAKA,

 Petitioner

v.

ATTORNEY GENERAL OF

THE UNITED STATES,

 Respondent

 

Petition for Review of an Order of 

the Board of Immigration Appeals

Agency No. A98-690-456

(Immigration Judge Miriam K. Mills)

 

Argued: October 29, 2008

___________
*

 The Honorable Paul R. Michel, Chief Judge of the

United States Court of Appeals for the Federal Circuit, sitting

by designation.

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Before: MCKEE, NYGAARD, and MICHEL,* Circuit

Judges,

(Filed: June 11, 2009)

Laetitia B. Creech, Esq. (Argued)

1238 Broad Street, 1st Floor

Philadelphia, PA 19146

Attorney for Petitioner

Richard M. Evans, Esq.

Nancy E. Friedman, Esq. (Argued)

Joan E. Smiley, Esq.

United States Department of Justice 

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, D.C. 20044

Attorneys for Respondent

 

OPINION

 
-3-

MCKEE, Circuit Judge:

Bayo Issiaka petitions for review of a final decision of

the Board of Immigration Appeals ordering his removal to the

Ivory Coast and denying his applications for asylum,

withholding of removal, and protection under the Convention

Against Torture. We have jurisdiction pursuant to 8 U.S.C. §

1252(a). For the reasons explained below, we will grant the

petition and remand this matter to the Board for further

proceedings.

I. Background

Bayo Issiaka, a native and citizen of Cote d’Ivoire (the

“Ivory Coast”), claims to have traveled to the United States as

a stowaway aboard a cargo ship, and to have arrived in the

United States in December 2003. He filed an asylum

application on December 13, 2004, and was subsequently given

notice of removal because he had not legally entered the United

States. Thereafter, Issiaka conceded removability, but requested

relief in the form of asylum, withholding of removal, and relief

under the Convention Against Torture (the “CAT”).

At a hearing before an Immigration Judge (Hon. Miriam

Mills), Issiaka testified that his father had worked as a chauffeur

for General Robert Guei, Cote d’Ivoire’s deposed military

leader. On September 19, 2002, Guei and Issiaka’s father were

killed by government troops during an apparent coup attempt.

The next day, soldiers came to Issiaka’s home in Abidjan. The

soldiers shot and killed Issiaka’s mother, and forcibly took

Issiaka and his brother to a military camp. According to Issiaka,

at the camp, he was beaten with sticks and his brother was tied
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to a car and dragged to his death. 

While Issiaka was being detained at the camp, a family

friend named “Colonel Bakayioko,” arrived at Issiaka’s home

and discovered that Issiaka’s mother had been killed. The

colonel retrieved some of the family’s identification papers and

drove to the military camp where Issiaka was being held.

According to Issiaka, he was able to leave the camp and flee to

a friend’s house in the village of San Pedro with the Colonel’s

help. There, a doctor treated the wounds inflicted during

Issiaka’s beating. 

Issiaka testified that in November 2003, he snuck aboard

a cargo ship bound for the United States. He also said that,

since arriving in the United States, he has been in touch with his

aforementioned friend in San Pedro, as well as with other

friends in Abidjan, and with his uncle. The uncle sent Issiaka

copies of some identification documents that were in the

possession of Issiaka’s former employer.

The Immigration Judge rejected the asylum claim as

untimely because Issiaka could not establish that he filed his

asylum petition within one year of his arrival in the United

States. See 8 U.S.C. § 1158(a)(2)(B). The IJ also denied the

application for withholding of removal and CAT relief, because

the IJ concluded that Issiaka was not credible. The IJ based the

adverse credibility determination on inconsistencies in Issiaka’s

testimony, his lack of specificity regarding his head wounds, his

failure to mention any medical treatment for those wounds in his

written asylum application, and the absence of corroboration.
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Issiaka appealed to the Board of Immigration Appeals,

but the Board affirmed the IJ’s ruling in a brief per curiam

opinion. The Board agreed that the asylum application was not

timely, and that Issiaka was not credible. This petition followed.

II. Standard of Review

Because the Board implicitly adopted the findings of the

Immigration Judge while discussing the IJ’s conclusions, we

review the decisions of both the Board and the IJ. See Xie v.

Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). Our review is

subject to the familiar “substantial evidence” standard.

Accordingly, we must determine if the conclusions of the IJ and

Board 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)

(quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).

Adverse credibility determinations must be based on “specific,

cogent reasons.” They must not rest on “speculation, conjecture

or . . . otherwise unsupported personal opinion.” Dia v.

Ashcroft, 353 F.3d 228, 250 (3d Cir. 2003) (en banc). Similarly,

adverse credibility findings may not rest upon minor

inconsistencies that do not go to the “heart of the asylum claim.”

 Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002) (quoting

Ceballos-Castillo v. INS 904 F.2d 519, 520 (9th Cir. 1990)).

III. We Lack Jurisdiction to Review the Asylum Claim.

Issiaka concedes that we do not have jurisdiction to

review the agency’s determination that his asylum petition was

untimely. See 8 U.S.C. § 1158(a)(3); Sukwanputra v. Gonzales,
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434 F.3d 627, 633 (3d Cir. 2006). Thus, we review only the

agency’s denial of withholding of removal and his claim for

protection under the CAT.

IV. Adverse Credibility Determination

In its brief per curiam opinion, the Board found no clear

error in the IJ’s adverse credibility determination. The Board

explained:

[T]he Immigration Judge found the respondent’s

testimony regarding his head wounds lacks

credibility because of his inability to reasonably

describe his injury []. The respondent testified

that a doctor gave him pain killers for his injuries,

though he failed to testify that he received stitches

[]. In addition, the respondent failed to mention

in his Statement that he sought medical treatment

[]. We find that the Immigration Judge’s

credibility analysis comports with the standards

applicable in the United States Court of Appeals

for the Third Circuit . . . .

App. 2 (record citations omitted). That adverse credibility

determination provided the sole ground for denying Issiaka’s

petition for withholding of removal. After reviewing the record,

we conclude that the reasons given to justify rejecting Issiaka’s

testimony are not supported by substantial evidence. 

With regard to his head wounds, Issiaka’s written

statement in support of his application for relief states as
-7-

follows:

They threw my brother and me on the pile of dead

bodies. They took wood from the trees and began

beating us with the sticks. I suffered cuts to my

forehead, the top of my head, and my shin. . . . I

was taken [by a family friend] to my friend’s

house in San Pedro, and cleaned up my wounds.

I had been cut on the forehead, on the top of my

head, and on my shin when the soldiers were

beating me at the army camp. . . . I did not try to

leave from San Pedro at that time, as I feared that

the army would find me on my way out. It took

me about a month or two to get better and heal.

App. 207-208.

At the hearing before the IJ, the following exchange

occurred about Issiaka’s wounds:

ISSIAKA: Because I have a, I have, because I have

beaten by the military on my head and they have wounded.

That’s why I needed the medication.

JUDGE: What was wrong with your head?

ISSIAKA: That’s what you can see it’s --

JUDGE: Does he have a scar on his head?

PETITIONER’S COUNSEL: Yes.

ISSIAKA: Yes, I have the scar you can see that.

JUDGE: I can kind of see it from here. All right . . . .

* * *

JUDGE: Describe the head wound that you said you

suffered?

ISSIAKA: I did not understand the question.

JUDGE: You said you, you showed me a head scar first
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of all. It might be eight inches long, I’m not real clear from

here. Why don’t you come up here and let me look at your

head.

ISSIAKA: Yeah, not a problem.

JUDGE: Okay, show me where the scar is. Are you

talking about this here? Oh, well, let me see. Okay, now not

eight inches but yeah, there are scars on his head.

JUDGE: (To counsel for the government) You want to

look at it? Maybe about two inches here and there. Okay, yeah.

JUDGE: (To Issiaka) Okay, I want you to tell me then,

what did the original wound look like that you have scars like

that? What did your original wounds look like?

ISSIAKA: You mean, you, you, you like to know how

I was wounded? I did not understand the question.

JUDGE: Right. What did it look like after they beat you

in the head with a stick? What did your head look like?

ISSIAKA: I was bleeding all over the body I was

covered.

JUDGE: So were they open gashes in your head? Open

wounds or what? Or was it just a bump. You must know what

your wounds looked like, okay, and this is important.

ISSIAKA: Yes, they were really open wounded.

Anybody could see and see that it was wounded.

JUDGE: How many open wounds did you have on your

head from the stick that they beat you with?

ISSIAKA: I had three wound on my head and I have one

on my foot.

JUDGE: And how deep were they do you know, about?

ISSIAKA: Deep?

JUDGE: Did you look in the mirror when you got to your

friend’s house to see what your head looked like at any time? Or

while the colonel was driving you to San Pedro.

ISSIAKA: Yes. Oh, they were serious, very serious.

JUDGE: So tell me what the wound looked like, what

these head wounds looked like?

ISSIAKA: It was very serious, very, very deep wounded
-9-

and my brother helped me clean up the wounded. I don’t know

how I can explain it but it was very serious.

JUDGE: You can’t describe what you saw in the mirror.

Did you look in the mirror at the head wounds at any time?

ISSIAKA: No, that I look myself at the mirror after I had

been treated.

JUDGE: Oh, okay. So what kind of you said you got

pain killer from the doctor. Anything else from the doctor for

these head wounds?

ISSIAKA: Yes.

JUDGE: What else?

ISSIAKA: He gave me an injection or two.

JUDGE: Okay, and how did you know you even had

these h[e]ad wounds if you didn’t look in the mirror?

ISSIAKA: I don’t understand the question.

JUDGE: You were beaten badly by military with sticks

and you got h[e]ad wounds. How do you know the wounds

were bad enough that you needed treatment?

ISSIAKA: When I touched it I could tell that there was

wounded.

JUDGE: What did it feel like when you touched it?

ISSIAKA: When you touched the wounded if it’s serious

you can tell it, if it’s not serious you can tell it too.

App. 91-95. 

Issiaka explained how he was injured, how many cuts he

believed were on his head, and that the wounds were “serious,”

“deep” and “open.” Moreover, he repeatedly said that he did not

understand the IJ’s questions. That is certainly understandable;

we have difficulty understanding them too. The IJ kept pressing
-10-

Issiaka to provide more detail about his wounds, and the Board

cited Issiaka’s failure to be more specific as support for

affirming the IJ’s denial of relief. However, it is not the least bit

apparent what additional explanation or description the IJ or the

Board thought Issiaka could provide. The adverse credibility

determination is especially puzzling because the IJ examined

Issiaka’s head and acknowledged that he had scars. From the

testimony quoted above, it certainly appears that the scars were

significant and consistent with serious injuries, not a “bump” as

the IJ’s questioning suggested. 

Issiaka also provided photographs of himself with

bandages on his head. The IJ accepted that evidence although

she questioned why Issiaka was bald in some of the pictures and

had hair in others. Issiaka explained at the hearing that the

pictures were taken approximately two months apart. App. 112-

13. That not only explains why he would have hair in some of

the pictures and be bald in others, it is absolutely consistent with

the supporting statement in his application that it took “about a

month or two to get better and heal.” App. 208. Moreover, if

he was examined by someone after the beating, it is reasonable

to assume that the person examining him would have had to

shave his head. It is therefore troubling that the IJ concluded

that the fact that Issiaka had hair in some pictures and was bald

in others somehow undermined Issiaka’s credibility. We can

not help but think that a neutral assessment of that evidence

would have corroborated his testimony, not weakened it. 

Thus, there is no basis for the Board’s conclusion that

Issiaka “lack[s] credibility because of his inability to describe

his injury.” It is hard for us to imagine how one would describe
1

 A head wound is not, after all, a wound to a fleshy

part of the anatomy. 

2

 Furthermore, it is unclear from the record how much

time elapsed between the beating and Issiaka’s meeting with a

doctor. If a significant time passed, it may be that stitches

would have been inappropriate even if they were otherwise

indicated. Yet, the IJ never considered that when attaching

significance to the absence of testimony about stitches.

-11-

a bleeding head wound (or wounds) other than to say that he

was bleeding from the head after being hit on the head with

sticks. That is what Issiaka said. The IJ’s insistence that Issiaka

testify about how “deep” his wounds were is not only illogical,

it is more consistent with an effort to undermine his credibility

than to fairly assess it.1

 Not surprisingly, (and to its credit), at

oral argument before us, even counsel for the government had

to concede that this ground for disbelieving Issiaka was

troubling.

 We are also at a loss to understand the Board’s concern

that “[Issiaka] failed to testify that he received stitches.” His

petition does not say he received stitches, nor did he testify that

he received stitches. He did testify that his friend helped him

clean his wounds, and that a doctor gave him some pills for pain

and an “injection or two.” Issiaka’s failure to testify that he

received stitches is neither puzzling nor suspicious. We doubt

that stitches are always appropriate for all head wounds, and not

everyone who needs stitches is fortunate enough to have access

to that level of treatment. Moreover, even “if best practices”

would require that Issiaka receive stitches, there is nothing here

to suggest that he had access to that kind of medical care. He

was, after all, in rural West Africa, and it appears that the IJ

never even considered that circumstance or context before

drawing a negative inference from Issiaka’s failure to say that he

received stitches.2

 Neither the Board nor the IJ should expect
3

 This is particularly true when we consider that

nothing in Issiaka’s testimony suggests that the environment

in which he finally received medical attention may well not

have been the kind of sterile field that would have allowed

sutures.

-12-

Issiaka to have access to the kind of medical attention that is

taken for granted in the United States.3

We realize that Issiaka did not mention that he received

any treatment in his asylum petition. However, that is an

exceedingly minor omission given the nature of the beatings that

he did describe, and the minimal medical attention he received

sometime later. Moreover, the statements in his petition are

internally consistent. Had Issiaka failed to mention a long stay

in a hospital or a major surgical procedure in his petition,

skepticism would have been justified. However, failing to

mention that a wound was cleaned and that he received pain

killers doesn’t strike us as an “inconsistency.” See Senathirajah

v. I.N.S. 157 F.3d 210, 221 (3d Cir. 1998) (“The procedures for

requesting asylum and withholding of deportation are not a

search for a justification to deport.”) 

V. Issues on Remand - Quality of Translation

The Board’s affirmance rested primarily on the adverse

credibility determination that we have just discussed and found

wanting. Nevertheless, the IJ enumerated some additional

grounds for disbelieving Issiaka’s testimony we must determine

if the record as a whole contains substantial evidence to support

the denial of relief. However, it is difficult for us to review the

remainder of the record because of the poor quality of the

translation and transcription. The portion of the transcript

reproduced above demonstrates some of the less serious

difficulties the judge, translator and petitioner were having
4

Although counsel for the government, Ms. Dussek,

speaks some French, there is nothing to establish her degree

of fluency or whether she is familiar with any unique or

accent that may have been involved. 

-13-

communicating with each other. The difficulties are better

illustrated by the following exchange:

JUDGE: All right, and Jabadi Kaulfa knew Colonel Bata

Yoko (phonetic sp.)?

ISSIAKA: Huh?

JUDGE: A colonel drove you to Jabadi’s house, is that

correct? Can you understand the interpreter?

GOVERNMENT COUNSEL4

: I think that question was

misstated.

JUDGE: Yeah, and I don’t even speak French.

INTERPRETER: (To Judge) Yes. Can you repeat that

question.

JUDGE: Yes.

JUDGE: (To Issiaka) You stated in your application that

a Colonel Bata Yoko drove you to San Pedro?

GOVERNMENT COUNSEL: Judge, may I clarify for

the interpreter?

JUDGE:Yes.

ISSIAKA: Yes.

JUDGE: Okay, so did Jabadi see the colonel when he

dropped you off?

ISSIAKA: Yes.

JUDGE: Okay. And why didn’t you put in your

application anything about you were treated by a doctor for your

wounds?

GOVERNMENT COUNSEL: That question needs to be

clarified.

ISSIAKA: I did not understand that question.
5

 Towards the end of the hearing, the translation

problem was brought up again:

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JUDGE: Okay. How well are you understanding our

interpreter?

ISSIAKA: I don’t have any problems.

JUDGE: (To Interpreter) Okay, how well do you

understand him?

INTERPRETER: I don’t have any problem either.

JUDGE: Okay. But he keeps not understanding me but

I don’t know. If you’re translating my English okay I don’t

understand why he doesn’t, you know, understand my question.

I’m talking to you. Is French your first language?

INTERPRETER: Yes.

JUDGE: What country are you from?

INTERPRETER: Rwanda. The only problem is accent,

no offense, but we do understand each other.

JUDGE: (To Counsel for Issiaka) Okay, you don’t have

any objections to our interpreter here?

COUNSEL FOR ISSIAKA: For the time being, no.

App. 95-97.

Issiaka’s attorney failed to object to the problems with

translation during the hearing, and also failed to raise any issue

about the quality and accuracy of the translation before the

Board. Nevertheless, it is readily apparent from reading the

transcript that there were translation problems somewhere

between Issiaka, the translator and the questioner. For example,

more often than not, Issiaka’s answers were not responsive to

the question asked as it appears in the transcript. Although this

could be evidence of evasiveness, given the number of times

that Issiaka answered “I don’t understand,” the IJ should have

been alerted to the very real possibility of a communication

problem between Issiaka and the translator.5

 Here, the IJ was
GOVERNMENT COUNSEL: (To

Issiaka) So why did you leave your documents

with your employer for more than four years,

your former employer? Why would he have

your ID documents for work for four years? Do

you know?

ISSIAKA: I didn’t meant that because I

left and I left my bag on the table. I didn’t

thought it was a problem.

GOVERNMENT COUNSEL: But you said you

needed these documents in case anything happened to your

parents. Isn’t that true?

ISSIAKA: Yes, but I was always in a Abidjan.

GOVERNMENT COUNSEL: Well, you, you returned

to your former employer after 1998 exactly?

GOVERNMENT COUNSEL: (To the Judge) The only

problem with the translation is the numbers is that the, the

interpreter uses the Swiss numbers for 90 –

JUDGE: Uh-huh.

GOVERNMENT COUNSEL: And that’s why he has

trouble understanding the, the 90 numbers. But he’s corrected

himself several times, which is good.

JUDGE: Okay.

INTERPRETER: (To Counsel for the government)

Yeah, I’m sorry. He, he has French. I just cannot get French.

GOVERNMENT COUNSEL: Right.

INTERPRETER: Could you please repeat the

question?

App. 123-124.

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clearly aware of this problem and elected to continue with the

hearing anyway.

Because of the apparent problems with translation and
6

 The IJ found that Issiaka’s asylum petition was not

timely filed because port records showed that the ship that

arrived on the date Issiaka claimed his ship arrived embarked

from a different city than Issiaka had reported. The IJ

therefore found that Issiaka had not proved that his petition

was filed within one year of his arrival in the United States. 

Neither the IJ nor the Board cited this discrepancy as a reason

for disbelieving any other part of Issiaka’s story. Issiaka did

provide medical records and affidavits from persons he met

upon his arrival in Philadelphia that support his story of

arriving as a stowaway.

7

 Other examples of the garbled nature of the transcript

include: 

ISSIAKA: My father was a driver and my mother was

alone in the house and she has been killed because of the

politics.

JUDGE: Well, what happened?

ISSIAKA: It’s because my father was (indiscernible)

driver and December 10th when left the (indiscernible) to

come to Abidjan and then, 19th December, 2002 they were

careful, very, very careful in the city President (indiscernible)

was (indiscernible) in the city.

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transcription we are reluctant to rule on the IJ’s remaining

justifications for doubting Issiaka’s credibilty. The IJ

concluded that Issiaka “failed to reliably and reasonably prove

his identity” or provide an adequate explanation of how he

obtained copies of his family’s identification cards or why he

could not produce the originals. The IJ was also concerned at

Issiaka’s failure to provide written corroboration of his story

from the friend he stayed with after fleeing Abidjan.6

 Yet, we

cannot conclude that these findings are adequately supported by

substantial evidence because the written record is too muddled

to allow intelligent review.7

 The Court of Appeals for the Ninth
App. 100. And:

JUDGE: And when the colonel found [the bag], what

did it contain, if you knew?

ISSIAKA: All my IDs.

JUDGE: Including your family’s IDs, your brother’s

ID, your mother’s ID and your father’s ID?

ISSIAKA: Yes. I had none, only my brother I had no

sister. 

JUDGE: Well, all you provided are copies. So were

there original identification cards in that bag when you

received it?

ISSIAKA: Yes.

JUDGE: And so what did you do with the original

identification cards?

INTERPRETER: He did not understand the question.

ISSIAKA: I lost one of the originals. I lost many of

the old, even the photo I was looking for I couldn’t find it.

JUDGE: Which one did you lose? Who’s [sic]

identification card did you lose?

ISSIAKA: When I, when I lost my ID in 1992, when I

lost my ID in 1998 and that’s the document they had to

renew. The original from this copy I lost it.

App. 106.

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Circuit has held that even where no due process violation has

been raised, “faulty or unreliable translations can undermine the

evidence on which an adverse credibility finding is based.” He

v. Ashcroft, 328 F.3d 593, 598 (9th Cir. 2003) (citing

Balasubramanrim v. INS, 143 F.3d 157, 162-64 (3d Cir. 1998).

We agree, and we think this is such a case. See also Kaita v.

Att’y Gen., 522 F.3d 288 (3d Cir. 2008) (vacating adverse

credibility determination where record showed obvious

translation problems and portions of the record were essentially

unintelligible). 
-18-

On remand, we strongly encourage the government to

ensure that an interpreter who is familiar with Issiaka’s native

language, dialect of French and any accent. We are all

sufficiently familiar with how strong accents can interfere with

understanding one’s own language. We do not know if that is

what happened here, but it is clear that the record does not lend

itself to the kind of review to which both Issiaka and the

government deserve.

VI. Remedy

Because the adverse credibility finding is not supported

by the record, we will grant the petition for review. However,

we are not able to determine if Issiaka is entitled to relief from

removal because of the problems we have identified with the

transcript. Accordingly, we will remand to the Board for further

proceedings consistent with this opinion. If further development

of the record is required, we strongly encourage that the Board

remand the matter to a different IJ. See Sukwanputra, 434 F.3d

at 638. The prosecutorial manner of this IJ during Issiaka’s

hearing and the inquisitorial inquiry that underpins some of the

IJ’s reasons for rejecting Issiaka’s credibility cause us to

conclude that everyone is better served by having another “pair

of eyes” evaluate Issiaka’s credibility if the Board concludes

that the record must be developed further.