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
3-24-2004 

# Duk ul y v . Atty Ge n U SA P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-1497

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the 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 at V i l l a no va U nive r sity S choo l of L a

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w . vi l l a no va . e du/thir dc ir c uit_2004/919NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

No. 03-1497

YOUSUFF DUKULY, Petitioner

v. JOHN ASHCROFT, ATTOR NEY G ENERA L OF THE U NITED STATES, Respondent

On Petiti on for Review of an Order of t he Immigrat ion and Natura lization Ser vice Bo ard o f Imm igration Ap peals (BIA No. A75-838-806) Argued February

25, 2004 Be for e: R EN DE LL , BA RR Y a nd F ISH ER , Circu it Judges

.

(Fil ed March 24, 2004)

Daniel G. Anna [ARGUE D] Anna & A nna 533-A Darlingt on Road Media, PA 19063 Counsel for

Petitioner2

John Ashcroft Richard M. Evans Michael P. Li ndemann Daniel E. Goldman [ARGUE D] U.S. Department

of Justi ce Office of Immigration Lit igati on Ben Franklin St ation P.O. Box 878, Civi l Divis ion Washington, DC 20044 M ichae l T. D oug herty U.S. Department

of Justi ce Office of Immigration Lit igati on 13 31 Pe nn syl vani a A ve nu e, N. W. Washington, DC 20530 Counsel for

Respondent

OPINI ON OF THE COURT

RE ND EL L, Circuit

Judge

. Yousuff Dukuly, a cit izen of Libe ria, petitions for review of a deci sion by the Board of Immigrat ion Appeals ( “BIA”) denying Dukuly’ s appli cati on for asylum and withholding of deportation. In so rul ing, t he BIA affirmed without opinion t

he findi ngs of the Immigr ation J

udge (“IJ ”) that

Dukuly l acked credibili ty because he pr ovided incon sistent sta teme nts an d fab ricated docu men ts to the C ourt, an d bec ause he fa iled to produce sworn t esti mony from a key witness. Dukuly t imely file d this Petition for Review. We have juri sdict ion under 8 U.S. C. § 1252. We will de ny t he peti tion for

re vi ew.1 “Thompson Swaray” i s also referred to as “Thompson,” “Mr. Thompson, ” and

“Foumba Swaray” throughout t he record. According to Dukuly ’s counsel , “Thompson” is Sw aray’s “C hrist ian n ickn am e.” L ike th e IJ, w e w ill refer to him as “ Th om pso n.” 3 I. Duk uly was the sole w itness and he provided a narrative of h is experience s. In 1997, aft er rece iving t

raining from the Liberian Nati onal Security Agency, he was assigne d to the “ VIP Security Section” at a compound occupied by a Liberi an

counc ilman. Du kuly subseque ntly provided EC OM OG , an Africa n superv isory organization, with an anony mous tip t

hat a l arge cache of weapons and ammunition was be in g s to re d a t th e c om po un d. C on se qu en tly, E C O M O G tro op s in va de d t he fa cil ity, fou nd t he a rms and am mu nitio n, an d ar reste d th e co unc ilma n. Du ring the in vas ion of th e co mp oun d, D uku ly fled wit h hi s fa mily to Gu inea

. Upon his ret

urn to Libe ria a f

ew weeks later , Dukuly was inter

rogated by

a nati onal securi ty offici al regarding any

part he may

have play ed in inf

orming ECOM OG about the weapons cache. According to Dukuly , during the cours e of the i nterr ogation he was severely beat en and urinated upon by guards. Dukuly was l ater r elease d and taken t o a fr ie nd’ s h ous e t o r ec upe rate . N o on e wa s a ll owe d t o vi si t Dukulyfo r t he fo ll owi ng t

wo

w ee ks ex ce pt hi s f

rie nd , T ho m ps on Sw ar ay. 1 Soon after Dukuly

recovere d from the i nterr ogation, he retur ned to work at t

he request of his employers. At some point t hereaft er, as Dukuly was driving home from

wo rk, f ive s old iers in a jee p sto ppe d hi m a nd t ried to fo rce h im in to th eir v ehic le.2 Du kul y later te stifie d th at he learn ed a bou t bo th ra pes thro ugh his f rien d, T hom pso n. H e le ar ne d a bo ut hi s w ife ’s r ap e in ea rly A pr il a nd hi s s ist er ’s r ap e in Ju ly. 4 Witn esses im med iately inform ed E CO M OG abou t the situa tion, an d troo ps resc ued h im from the attempted abduction. Dukuly subsequent ly

went into hi ding. He l earned from Thom pson that tw o days later, the same fiv e soldiers and a general inva ded D ukuly’s home. The generalalle gedly raped Dukuly ’s wife, who had just gi ven birt h to a chi ld, and the sol diers stol e valuabl es from the home. Two months later , in June 1997, Liberian soldiers allegedly captured a nd raped Duk uly’s sister. 2 During that incident, the soldiers told Dukuly ’s si ster

that he r entire famil y would suf fer because Dukuly had di sgraced t he

coun cilma n by info rming EC OM OG abou t the ca che o f w eapo ns fo rmer ly stored at h is

com pou nd. Meanwhi le , a s h e wa s i n hi di ng, Dukul yobtai ne d avi saund er a f al se na me. He then traveled t o the Unite d States where he was admitt ed as a nonimmigr ant vis itor for business on June 18, 1997. The visa aut horized Dukuly

to remai n in the St ates no l ater than Septe mber 6, 1997 – however, he overst ayed t he visa and t

hus would have been removed but for

the fact that he completed an a

pplication for

asy lum in l ate Sept ember 199 7. Th e IJ sub sequ ently review ed D uku ly’s applica tion. A fter ho lding th ree sep arate hearings regarding Dukuly’ s case, the IJeventual ly denied hi s appli cati on and with hold ing o f rem oval, b ut gran ted his a pplica tion fo r volu ntary dep arture. D uku ly appealed t

he IJ’s decisi on to the BIA, and the BIA affir med the IJ’ s decis ion without5

further opinion. In his de cisi on, the IJ st ated that he found Dukuly ’s te sti mony “fai rly persuasive.” Neverthel ess, he ultimately determi ned that

Dukuly’ s credibili ty

was “fatal ly

damaged” because Dukuly

present ed the Court

with incons ist ent st atements and fabri cated documents, and because Dukuly fail ed to produce sworn testimony from Thompson. First, the IJ noted that D uku ly never m ention ed the rapes of h is wife and sister in his asylum appli cati on. Ins tead, the appl icat ion merel y i ndicat es that Dukuly’ s wife had been thre atened wit

h rape – not t

hat she had a ctual ly

been raped. Further

more, the applic ation indicat es that Dukuly’ s sis ter had be en arres ted, detai ned and int errogat ed – but not t hat she had be en raped. When asked about thes e omissi ons, Dukuly testifie d that they were a resul t of the fact t hat he had been hur

ried and s tres sed when he fil led out t he applic ation. Second, the IJ menti oned that at one poi nt, Dukuly

test ifie d that when hi s wife was raped on A pril 27th , his new born child w as on ly a few days old – yet at an other p oint in his t esti mony, Dukuly

said t hat the baby was bor

n on April 1st . Dukuly

offered no

ex pl an ati on fo r th is i nc on sis ten cy. Third , the IJ dis cusse d at len gth tw o do cum ents w hich h ad be en en tered in to evide nce d uring Du kuly’s he arings . The first is a rep ort fro m the Am erican Em bassy in Monrovia, wherei n it i s confir med that t

he John F. Kennedy

Medical Center

in which Du kuly claim s his sister wa s treated for ra pe do es in fa ct exist. H ow ever, a ccord ing to3 Dukuly makes four additi onal argument s, al l of which l ack suffic ient merit t o warrant detai led dis cussion. First , he cont ends that the IJerred in finding t hat Dukuly

made insufficien t effo rts to ob tain ev idenc e in su ppo rt of his case. H ow ever, n ow here in his decision did the IJ conclud e that Du kuly made su ch insuff icient efforts. Rathe r, the IJ fou nd t hat th e ev iden ce w hich Du kul y did p rod uce lack ed c red ibility. 6 the E mb assy, the C enter h as no record s of h is sister’s ad missio n du ring the period in questi on. The repor

t als o indicates t

hat Dukuly ’s wife r eceived t reatment at a ra pe cli nic, but tha t there w as a d iscrep ancy w ith rega rd to m edica l record s con cernin g her treatm ent. The second document, a letter from an administ rator at the Kennedy Medical Cen ter, states th at Du kuly’s sister w as treate d fo r rape a t the Jap anes e Lib erian F riends hip Hospital– not at t

he Kennedy Medical Cent er. More nota bly , the letter indi cates t hat correspon dence p reviously submitted to the IJ by Duku ly as evidence of his sister’s treat me nt w as c om plete ly fab ricat ed. Fina lly, the IJ note d that, at a n earlie r hearin g, the IJ h ad en cour aged Du kuly to eithe r produce Thompson as a wit ness at the next hearing, or at l east pr oduce a signe d and sworn affidavi t from him. Despite t his sugges tion, Dukuly fai led to do s o. Ac cord ingly, the IJ d enied Du kuly’s ap plication for as ylum. D uku ly filed this timely app eal. II. Du kuly ma kes th ree m ain arg um ents o n app eal: 1) th e IJ m isapp lied the law in determ ining th at Du kuly sub mitted falsifie d do cum ents to th e Co urt; 2) the IJ erred in fin di ng D uk ul y no t cr ed ib le; an d 3 ) th e I J e rre d i n d en yin g a sylu m to D uk ul y. 3 In li ght ofSeco nd, D uku ly argues that the BIA erred b y not con siderin g add itional d ocum ents

that Duk uly submitted to the B IA in A ugust and Octob er 1999 . Yet nothing in the record sugg ests tha t these d ocum ents w ere ac com panie d by a m otion to reop en or to rem and in conformity wit

h the BIA’s re gulati ons, cur rently codi fied at

8 C.F.R. §§ 1003. 2(a)- (c) (20 03) . Be cau se w e are not at lib erty to c ons ider add ition al ev iden ce o n ap pea l, see 8 U.S .C.A . § 125 2(a)(1 ), this argu men t mus t fail. Third, Dukuly cont ends that the IJviolated his due pr ocess ri ghts i n fail ing to gr ant Duk uly additional time to presen t evidence. H owe ver, at oral argum ent, Duk uly’s cou nse l con ced ed th at D uku ly’s atto rne y nev er re que sted any a ddi tion al tim e fro m th e IJ. We do not see how Dukuly’s due process right s were impli cated when he did not even seek the time he say s he was depri ved of. Finally, Dukuly argues that this Court shoul d adjust his st atus t o “legalpermanent resi dent” base d on Dukuly’ s recent marriage to a Unite d States citi zen. Again, this issue is ra ised for

the fi rst time on appeal. Dukuly has not indi cated t hat he submit

ted the nece ssary doc um ents in s upp ort of th is argu men t to the B IA in conform ity with its regulations. Thus, he has fa iled to exhaust hi s avail able re medies, leavi ng us without juris dicti on t o co nsid er th is arg um ent. Xie v. Aschroft , 357 F.3d 239, 246 n.8 (3d C ir. 200 4). 7 the st andard we must appl y t o an IJ’s decisi on regarding the evi dence before him in an asy lum proceedi ng, aft er revi ewing the re levant porti ons of the r ecord, we conclude that these a rgum ents lac k m erit. Where the BIA affirms wit hout opini on an IJ’s decisi on, “the IJ’s opinion effectively

becomes the BIA’s, and, accordingly , [we] must r eview the I J’s deci sion. ” Abdulai v. Ashcroft , 239 F.3d 542, 549 n.2 (3d Cir . 2001). In the cont ext of asylum cases, adverse cr edibil ity determi nations are revi ewed under a subst antia l evide nce stan dar d. Gao v. Ashcroft , 299 F.3d 266, 272 (3d Cir. 2002) (ci ting Balasubramanr im v. INS , 143 F .3d 15 7, 161 (3d C ir. 1998 )). In oth er w ords, a review ing co urt mu st sustain an ad verse credib ility determin ation if there is s ubsta ntial ev idenc e in the record to8

sup por t it. Gao , 299 F.3d at 272 (citing Sen athi ra

jah v. INS , 157 F.3d 210, 216 (3d Cir. 1998)). Under this standar d, such a determinat ion must be uphel d unless “ ‘any reasonabl e adjudi cator would be compelled t o conclude t o the contrary .’” Gao , 299 F.3d at 27 2 (q uot ing 8 U .S.C . § 12 52( b)(4 )(B )). Under 8 U.S.C. § 1101(a) (42), an otherwis e removable al ien maybe grante d asy lum if he demonst

rates that he is a “r efugee,” de fined as “ any per son . . . unabl e or unwilling to ret

urn to . . . [ his or he r] count rybecause of per secuti on or a well- founded fear of per secuti on on account of r ace, r eligi on, nat ionality , membership in a particular socialgroup, or

politicalopinion .

. . . ” An applicant for asylum can demonstr ate that he has a well- founded fear of fut ure pers ecuti on by showing t hat he has “ a genuine fear , and that a reasonable person in [his] circumstances would fear persecution if returned to [his ] native country .” Gao , 299 F.3d at 272 (citing El na ge r v . I NS , 930 F.2d 784, 786 (9th Cir. 1991)). An applicant

clai ming to be a r efugee has t he burden of suppor

ting hi s asy lum claim wit h cr edib le ev iden ce. Gao , 299 F.3d at 272 (citing Abdille v. Ashcroft , 242 F.3d 477, 482 (3d Cir . 2001)) . Indeed, a persecution cla im that lacks cr edibil ity

“cannot satis fy the burdens of proof and pers uasion nece ssary to est ablis h eligibili ty

for asylum or withholding of deportation. ’” Xie , 359 F.3d at 241 (citing Matter

of M-S- , 2 1 I . & N. De c. 12 5 (B IA 199 5)).

An asyl um applicant ’s “consi stent and detai led te sti mony can be suf fici ent to meet t he burden of est ablis hing pers ecuti on.” InRe O- D- , 21 I. & N. Dec. 1079, 10819

(BIA 199 8) (citatio ns om itted). O n the o ther ha nd, the prod uction of co unterfeit documents, in the a

bsence of an expl anati on concerni ng such product ion, “ creat es seri ous doubts re garding t

he [appli cant’s ] overal l credibili ty .” Id. at 10 83 ( citatio ns o mitte d). First , Dukuly

argues t hat the IJ misappl ied the law in det ermining t hat he submitt ed falsi fied documents to the Court . He asser ts that, in InRe O- D- , a case that t he IJ relied upon, fo rensic expe rts made the determination that the docu ments at issue w ere

cou nter feit. Id. at 1079. Thus, Dukuly argues, the IJin thi s case shoul d not have re lied on the corr espondence from t he American Embassy

and the John F. Kennedy Medical Cen ter, bec ause the au thors o f these com mu nicatio ns (w ho re view ed D uku ly’s alleged ly counterf eit doc uments) were not forensi c expert s. However, bec ause the Fede ral Rule s of Ev iden ce d o no t app ly in asylu m p roc eed ing s, the IJwas not obli gated t o establ ish t he doc um ents ’ au then ticity thr oug h th e tes timo ny of for ens ic ex per ts. See Ezeagwuna v. Ashcroft , 325 F.3d 396, 405 (3d Cir. 2003). Indeed, in an asylum proceeding, the “‘test for admissibili ty of evidence . . . is whether the evidence is probative and wh ether its use is fundament ally

fair .

. . . ’” Id. (quoti ng Bus to s- Tor re s v . I NS , 898 F .2d 10 53, 10 55 (5 th Cir. 19 90)); see also 8 C .F.R. § 124 0.7(a) ( 200 3) (no ting tha t an IJ m ay receiv e in evidence “any or al or wri tten s tate ment that is material and relevant to any issue in the

case . . . .” ). Because there i s no evidence that a dmissi on of the cor respondence was unfair or tha t the do cum ents lac ked p roba tive va lue, w e find that the IJ prop erly4 Dukuly al so argues t hat, because he was not aware that

the documents he present ed we re frau dulen t, the IJ sh ould not h ave re lied on the fa ct that the y were wh en he mad e his credib ility determin ation. H ow ever, it is c lear tha t Du kuly bo re the b urde n of prov ing h is claim wit h cr edib le ev iden ce. Gao , 299 F.3d at 272 (cit ation omi tted) . Because t here was som e evid ence that the coun terfeit d ocum ents D uku ly produ ced w ere inc redible , this conte ntion is with out m erit. 10 consider ed them in maki ng his det erminat ion. 4

Sec ond , Du kul y argu es th at the IJ err ed in find ing him not cred ible. Although the I J did i ndicat e that he found Dukuly’ s testimony about the event s at t

he compound “fairly per suasive ,” the IJ ul timat ely based his adverse cr edibil ity finding on the ent iret

y of t he record. In part icular, t he IJ focus ed on Dukuly’ s inconsi stent and at times incoherent

stat ements, the fal sifi ed documents he pr esented to the Court, and the fact t hat sworn t esti mony from a key witness was neve r provi ded. Because t he comb ination of these elemen ts constitutes the “substan tial evidence” n ecessary to suppo rt an adverse c redibi lit

y det erminat ion, and because we find t hat no rea sonable adj udicat or would be compelled to conclude t o the contrary , we will uphold the I J’s det erminat ion. Finally, Dukuly cont ends that the IJerred in denying his appl icat ion for as ylum and w ithhold ing o f dep ortation . Ho we ver, in lig ht of th e IJ’s ad verse credib ility determi nation, we find no error in the I J’s deni al of Dukuly ’s appl icat ion for as ylum and wit hho ldin g of

dep orta tion

. III. Acc or di ngly , w e wi llde ny th e p et itio n f

orre vi ew.