2003 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 6-13-2003 

# B ot ch wa y v . Att y Ge n U S A 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 . 01-4301

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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 sit y S choo l of L a

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w . v i l l a no va . e du/thir dc ir c uit_2003/461* Honorable Mary A. McLaughli n, Unite d States Distri ct Judge for the East ern District of P enn sylvan ia, sittin g by d esig natio n. NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
No. 01-4301and 02-1544
LI NDA BOTCHWAY, Petitioner

v. JOHN AS HCROFT , A TTORNE Y GENERAL OF THE U NITED STATES, Respondent
APPE AL FROM THE UNIT ED STA TES I MMIGRATI ON

AND NATURALIZATI ON SERVICE Agency No. A78 425 200
Submitte d Under Third Circ uit LAR 34.1(a)

June 6, 2003
Be for e: B AR RY , FU EN TE S, Circuit Judges , and Mc LAUGHLI N, * Distri ct Judge (Opinion Fi led: J une 13, 2003)

OPI NION2

BA RR Y, Circuit

Judge Petitioner Li nda Esi Eny onam Botchway unlawful ly entere d this countryand app lied f or a sylum and wit hho ldin g of dep orta tion und er th e C onv entio n A gain st T ortu re. The immigration judge ( “IJ”) ordered her removed, and s he fil ed a ti mely appeal t o the Board of Immigration Appeals ( “BIA”). The BIA affirmed and i ssued a fi nal order of
remo val. B otchw ay filed a tim ely motio n to rec onsid er and simu ltaneo usly filed a timely petit ion for r eview (No. 01-4301) . The BIA denied themotion t o reconsi der, and Bot ch wayfi le d a se co nd p etit io n f orre vi ew ( No. 02- 154 4) . We co ns ol id at ed th e t wo petition s. W e hav e jurisd iction p ursua nt to 8 U .S.C. § 125 2(b)(2 ), and w ill deny bo th petiti ons. I. Botchw ay, then a 20-year-old citizen of G hana, arrived a t JFK airpo rt on Janua ry 7, 20 01 a nd s oug ht ad mis sion to th e U nited Sta tes u sing frau dul ent tr ave l do cum ents . She was placed i nto expedi ted removalproceedi ngs and was int erviewed byan immigration offi cer. Bot chway li ed about her name and age and reported that she had come to the United States to escape her fiancé, who had threatened to harm her because he b eliev ed th at sh e ha d ki lled t heir child sho rtly afte r giv ing birth thre e year s ea rlier. A dentis t examined Botc hway and det ermined that she was under 18, not 30 y ears ol d, as she had claim ed, a nd a s stat ed o n th e pa ssp ort th at sh e w as u sing
. On January 9, Botchway was interviewed at the INS detenti on facil ity and3

adm itted he r true n ame and b irthdate , Au gust 3 1, 198 0; ho we ver, sh e con tinued to claim that s he w as f leein g th e fa ther of h er b aby. At her credible fear

interview on February6, 2001, at which she was r epresented by couns el, Botchway cl aimed for the firs t ti me that shefeared re turni ng to Ghana beca use sh e w ould face fem ale ge nital m utilation ( “FG M ”) as th e first-b orn g rand child in her tribe ’s ro yal fam ily; she did not disc uss eithe r the alleg ed f ianc é or the d ead child
. The asylum officer determined that Botchway had a credi ble fear of persecution and terminated expedited removal proceedings. At her removal hearing, Botchway conceded removabili ty pursuant to 8 U.S.C. §§ 1182(a)( 6)(C)(I ), ( a)(7) , and appl ied for a sylum and withholdi ng of deportation under the Convention Against

Torture. At her fir st asylum heari ng on April 9, 2001, Botchway
ex pl ai ne d tha t s he is a me mbe r o f the ro y al Agb ad zafa mi ly , i n the Den u c la n of th e Ewe tribe , fro m th e city o f T em a, loc ated nea r the cap ital, A ccra , on t he s out hea stern coa st. She clai med that t

ribalcustom requi res that every femal e firs t-born grandchil d in the royal f am ily be ritu ally circ um cise d, an d th at sh e fle d G han a to e sca pe th is pra ctice
. Botchway admit

ted that she l ied to i mmigrati on offici als r egarding he r identity and about being threatened bythe father of her baby , both i n her ini tialinterview and at the de ten tio n f ac ilit y. In support

of her cl aim, Botchwayintr oduced secondary mate rial s about t he practice of FGM in Ghana and sw orn letter -statements byher mother and sister. She also4

intr oduced the l ive te sti mony of her pur ported cous in, MichaelAmissah, who corrobora ted her testimon y that it was the custom amon g the Ew e to circumc ise first-born fem ale c hild ren in th e ro yal fam ily. At th e con clusion of the M ay 9, 200 1 hea ring, the IJ rend ered a n ora l decisio n in which he denied Botc hway’s application for asy lum and withhol ding of removal , and ordered her

removed to Ghana. The I J found Botchway not credibl e, based on incon sistenc ies and impla usibilities in the testim ony giv en by he r and Am issah, an d in light of the sec ondarymateri als t hat did not

report the prac tice of FGM among the Ewe or in the so uthea stern p art of th e cou ntry. The IJ also re lied on Bo tchw ay’s false s tatem ents to immigr ation of

fici als bot

h upon entryand at the detention faci lit y. The IJ gave l ittle or no weight to t

he letters writt en by Botc hway’s mother and si ster , which he found “contri ved,” submi tted upon Bot chway’s request , and “much too for mal.” Botchw ay appealed to the BIA . In a decision da ted No vemb er 5, 2001 , the BIA affirmed and i ssued a fi nal order of removal. One BIA m ember diss ented, on the bases (1) that the BIA had disreg arded the a ffidavits by Botch way’s mo ther and sister and (2) a written statem ent by A missa h that th e trans lator ha d told h im tha t he ha d no t accu rately tran slate d B otch wa y’s testim ony. On De cem ber 5 , 2001 , Botc hw ay filed a m otion to recon sider a nd sta y remov al to the BIA and a peti tion for review of the BIA’s decis ion (No. 01- 4301). On January 31, 2002, the BIA denied the moti on to recons ider. Botchway fi led a petiti on for revi ew of5

that d ecis ion (N o. 02 -15 44) . W e co nso lidat ed N os. 0 1-4 301 and 02- 154 4.

II. The Imm igration and N ationa lity Act (the "Ac t") auth orizes the A ttorney G enera l, in h is dis creti on, t o gr ant a sylum to an alien wh o is a "ref uge e" a s de fine d in the A ct, i.e., an ali en who is unable or unwilli ng to ret

urn to hi s or her home count ry "because of pe rse cu tio n o r a w ell -f ou nd ed fe ar of pe rse cu tio n o n a cc ou nt of ra ce , re lig io n, n ati on ali ty,
mem bership in a p articular social group , or political opinion." 8 U .S.C. §§ 11 58(b)(1); 1101(a)( 42)(A). I n order t o show that she has a well- founded fear of per secuti on, Botchway must s how both that s he genuinel y fear s persec ution i f she ret urns to Ghana and that h er fe ar is o bjec tivel y reaso nab le. Li n v. INS , 238 F.3 d 23 9, 24 4 (3 d C ir. 20 01)
. In order to be entitled to withholding of deportation under the Convention Against Tortu re, Bo tchw ay mus t satisfy a stricte r stand ard b y show ing tha t she “is mo re likely than n ot to be tortured in the c oun try of rem oval.” 8 C .F.R. § 208 .16(c)( 2), (4); Abraham v. Ash croft , 59 Fed. Appx. 476, 477 n.1 ( 3d Cir. 2003) . The BIA’s deci sion i s conclus ive unless i t is “manifestly contrary t o the la w and an abuse of discretion, ” and it s findi ngs of fact a re “co nclus ive un less an y reason able a djud icator w ould be co mp elled to conc lude to the contrary .” 8 U.S. C. § 1252(b)( 4). I n other words, findings of fact can be revers ed onl y if the y are n ot su ppo rted by sub stan tial ev iden ce. See INS v. Elias-Zacari as , 502 U.S . 478, 4 81 (1 992 ); Sevo ian v. A shcro ft , 290 F.3d 166, 168 (3d Cir. 200 2).6

A. Botchway ’s Claim for Asylum or Withholding of Removal In denying B otchw ay’s application for asylum o r withholdin g of rem oval, the BIA expressl y agr eed with the IJ’s adverse credibil ity determi nation ba sed on incons ist encies in the hearing testim ony and a find ing that the seco ndary materials did no t support Bo tchw ay’s claim . With respe ct to the testimo ny, the IJ po inted to seve ral imp lausible stat ements at

the hearing. For

inst ance, al though Botchway clai med that t he Ewe royal familykeeps it s il legal practi ce of FGM a secret from the government, Amissah testi fied that Ghani ans were well a ware of the pra ctic e. Amissah al so test ifie d that FGM was usuall y performed about the age of puberty unl ess the female did not live wit h her tribe; however, Botchway testifie d that s he had alway s li ved with her t ribe and ha d not y et undergone the procedure at 20 y ears of age. The IJ found that Botchway had not adequatel y expl ained why s he had not been forced to under go FGM earli er; t he IJ di d not credit Botchway’s explanation that her grandmothe r had succes sfull y pr otect ed her from the practice unti l she became queen. Although the IJ did not explicitly make an adve rse credib ility determin ation w ith resp ect to A missa h, the IJ im plicitly foun d him not cre dible by spe culating that

Botchway concocted her st ory sometime during the month between her arrival in the U nited States and her credible fe ar hearing, po ssibly with Am issah’s assis tance. The BIA al so fo undth at th e s ec ond ary mater ia ls doc ume nt in g the pr ac ti ce of FGM in Ghana discredite d Botchway’s clai m that her tribe practices FGM. The BIA noted the7

fact th at FG M is prac ticed a mo ng ce rtain tribe s in the n orth an d am ong north ern m igrants in the s outh. Si nce Botchway i s from a cit y on the southern coast, which does not i nclude northern migrants as far as the rec ord shows, and her tri be, the Ewe, was not li sted among those kno wn to prac tice FG M , the B IA c onclu ded th at the re cord contra dicted her cla im t ha t he r t r i be pr ac t i ce s FG M. We have held th at the B IA m ay “som etime s requ ire othe rwise -credib le app licants to suppl y cor

roborating evide nce in orde r to meet their burden of proof. ” Abdulai v. Ash croft , 239 F.3d 542, 554 (3d Cir. 2001). We have als o noted, albei t in a nonprecedential opi nion, t

hat “[m]anysecretive prac tice s.. ., e special ly those t hat threaten human rights, are documented by Governm ent and Non-G overnmental agencies, academics, and journal ist s.” Frim pon g v. A shcro ft , No. 00-2644, at *7-8 ( 3d Cir. J uly 20, 2001). T he 200 0 Co untry Report indica tes that Gha na’s Presiden t and close ad visers
we re Ew e. Co nside ring tha t the E we tribe is pr om inent in the go vern men t of G hana , it was reasonabl e for the BIA to seek objec tive e vidence of Botc hway’s members hip in t he Ewe r oy al fa mi ly

orth e Ewe ro y al fa mi ly ’s pr ac ti ce of FGM. In it s November 5, 2001 deci sion, the BIA did not di scuss t he testimony by Amissah or the letters byBotchway’s mother and si ster –all of which support ed her testimo ny that FG M wa s prac ticed b y her tribe. In respo nse to Bo tchw ay’s mo tion to reconsider, ho wev er, the BIA briefly addressed the tw o letters and agree d with the IJ’s finding t hat the y were “ent

itl ed to li ttl e weight. ” In li ght of the dearth of objective1 Although Botchway ’s moti on was formally sty led a “moti on to recons ider, ” to the exten t that it w as ba sed o n the s ubm ission o f new evide nce, w e w ill treat it as a m otion to reopen. 8 corro bora ting ev idenc e and its adve rse cre dibility determ ination , the B IA w as en titled to find th at the lette rs Bo tchw ay subm itted fro m h er mo ther an d sister w ere ins uffic ient to
co rro bo ra te h er cla im . A lth ou gh th e B IA di d n ot ex pr es sly a dd re ss A m iss ah ’s t es tim on y, by deferring to the IJ’s ad verse credibility determination, it implicitly adopted the IJ’s finding t hat Amissah’ s test

imony cont

radicted Botchway’ s test imony as to the pr acti ce of FG M am on g t he Ew e r oya l fa m ily. In conclus ion, be cause the BIA’s adverse c redibi lit y fi nding is supporte d by substant ial e vidence, the BIA did not abuse it s discretion i n concludi ng that Bot chway was ineli gible f

or asy lum. Because Bot chway fai led to e stabl ish a well -founded fear of FGM if she r eturned to Ghana, she is likewis e unable t o show that she is more l ikely than not to su ffe r FG M in G han a. See INS v. Cardoza- Fonseca , 480 U.S . 421 , 430 (19 87)
. The refor e, the B IA a lso did not ab use its d iscretion in find ing tha t Botc hw ay had f ailed to establ ish el igibi lit

y for reli ef under the Convention Agains t Torture.

B. Request to Reopen Proceedings Because of Erroneous Translati on We review the BIA’s deni al of a r equest to reopen proce edings on t he basis of new evidence for

an abuse of di scretion. 1 INS v. Abudu , 485 U .S. 94, 105 (19 88).2 8 C.F.R. § 3. 2 has sinc e been moved to 8 C.F. R. § 1003.2, as a res ult of t he en ac tm en t o f the Home la nd S ec ur it y Act of 200 2 ( "HS A") , P ub. L. 107 -2 96, ti t. IV, subti ts. D,E, F, 116 St at. 2135, 2192 (Nov. 25, 2002) (as amended), which trans ferred t he functi ons of the I mmigrati on and Natural ization Servi ce ("I NS") to the Department of Homeland Security ( "DHS"). The functi ons of the Executive Office for Immigration Review ("EOIR") conti nue to res ide in t he Department of J usti ce, under the directi on of the Attorney General . This t ransfer of functi ons led t o the promulgation of f inal r ule 68 Fed. Reg. 9824- 01, effect ive February 28, 2003 , wh ich m ade n o sub stantive chan ges in the regul ations but plac ed the re gulati ons pert aining to the INS and thos e pertaining to the 9 In support

of her appeal , Botchway submitted a statement by Amissah dated September 5, 2001, in whic h he clai med that t he inte rpret er tol d him on April 9, 2001, after th e first da y of the h earing on B otchw ay’s asylum claim , that he im prop erly translate d B otchw ay’s testimo ny in ord er to pr otect th e repu tation o f G hana . The BIA did not refer to this stateme nt in its Nove mber 5 , 2001 de cision. In denying B otchw ay’s motion t o reconsi der, however, the BIA brief ly addresse d this issue, finding t hat Bo tchw ay had n ot me t her bu rden of p roof beca use sh e had not es tablishe d the re liability of the i nformati on contai ned in Amissah’ s statement or anymateri al errors in t he tra ns lat io n o f h er tes tim on y. The BIA ’s dec ision w as no t an ab use o f discr etion, f or sev eral rea sons . First, although Amiss ah was presumablyaware of the i nformati on contai ned in the statement as of April 9, 2001, Botchway ’s counseldid not r aise t his concern at her May 9, 2001 hearin g. Bo tchw ay has n ot exp lained wh y the info rmatio n in the letter w as no t availab le and could not

have been dis covered or presented at the May 9, 2001 heari ng, as r equired by 8 C.F.R. § 3 .2(c)(1). 2EOIR in separat e chapter s. I n relevant part , the rule t ransfer red part 3 to part 1003, which is part of the organic regulation for EOIR. 68 Fed. Reg. 9824-01, 9824-26 ( Feb. 28, 2003 )
. 10 Second, the letter i s not a sworn af fidavi t and, thus, Botchway has not establ ished the rel iabil ity

of the i nformati on contai ned in it , as 8 C.F. R. § 3.2(c )(1) requires . Thir d, because Amissah’ s statement was extr emely vague, i t provi des us with no wayof de ter m in in g w he th er an y tra ns lat io n e rro rs w er e m ate ria l to B ot ch w ay’ s c lai m . F in all y, Botchway her self, through her counsel, did not poi nt to any error s in the trans lati on of her testimo ny, althou gh sh e spe aks E nglish rather w ell. Since Botchway has fail ed to satisfyher burden of s howing materi al and prejudi cial error s in the trans lati on, the BIA did not abuse i ts di scretion in denying her requ est to reo pen p rocee ding s on th e bas is of A missa h’s state men t.

III. For the for egoing rea sons, t he peti tions are deni ed.

/ s/Maryann e Trum p Barry Circuit Judge