2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-24-2008

Bah v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3812

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-3812

 

OUSMANE LAMARANA BAH,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

 

On Petition for Review of an Order 

of the Board of Immigration Appeals

Agency No. A98 278 974

Immigration Judge: Henry S. Dogin

 

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 23, 2008

Before: AMBRO, FISHER and JORDAN, Circuit Judges

(Opinion filed: July 24, 2008)

 

OPINION

 

PER CURIAM

Ousmane Lamarana Bah petitions for review of an order of the Board of

Immigration Appeals (Board or BIA), which denied his application for relief from

removal. We will deny the petition.
 Although Bah’s brief sets forth the requisite standard for obtaining relief under the 1

CAT, Bah did not contest the denial of relief under the CAT in his appeal to the Board. 

We thus lack jurisdiction to consider the denial of CAT relief. 8 U.S.C. § 1252(d)(1)

[Immigration and Nationality Act (INA) § 242(d)(1)]; see also Bonhometre v. Gonzales,

414 F.3d 442, 448 (3d Cir. 2005).

 Bah’s brief does not mention the Immigration Judge’s (IJ’s) rejection of his claim 2

based on membership in a particular social group; i.e., his family. App. at 15-15A (A.R.

98-99). Accordingly, the claim has been waived. Chen v. Ashcroft, 381 F.3d 221, 235

(3d Cir. 2004).

2

Bah is a native and citizen of the Republic of Guinea. He entered the United

States in 2003 and made an affirmative asylum application soon thereafter. The

application was denied, and Bah was placed in removal proceedings for overstaying his

visa. Bah renewed his application for asylum, withholding of removal, and protection

under the United Nations Convention Against Torture (CAT).1

Bah sought relief based on problems he and his father experienced due to their

political involvement. Bah testified that he joined the UNR political party, an 2

opposition party that his father belonged to, in 1992. A.R. 169. When the party no longer

existed, he and his father joined the UFR party in 2000. A.R. 169-70. Bah worked in the

party at the grass roots level, distributing membership cards and holding youth meetings. 

A.R. 170. In 2003, an international conference for democracy had been planned to be

held at a large hotel. On June 8 of that year, the Guinean president was scheduled to th

arrive with a delegation at the airport for the conference. Opposition political parties

gathered at the airport to meet the president, but the Government broke up the crowd and

arrested hundreds of people. A.R. 172-74; A.R. 96. Bah fled and stayed with two friends
 The BIA did not agree, however, that the IJ should have required that Bah provide 3

corroboration from the two friends with whom he hid, as the IJ did not ascertain that such

corroboration was readily available. A.R. 3.

3

for two days. A.R. 174-75. He returned home on the third day, and was arrested because

of his involvement in the events at the airport. He was beaten and tortured during a

confinement of almost a month. A.R. 175-76. He was released when his wife paid some

money. A.R. 177. He went to a hospital, got a prescription, and left, but he continues to

feel pain in his left shoulder and his back. A.R. 193-94.

Bah also submitted an affidavit from his mother, describing problems her husband

had due to his political involvement, and stating that her son (Bah) “was arrested also in

June 2003, at the international airport of Conakry Gbessia after participating at a

manifestation . . . .” A.R. 487. The translation of the affidavit states that Bah was

“locked” at the Conakry precinct for 27 days, and that “[w]e paid money to have him

freed, because of his wife that was mentally inapt [sic].” A.R. 487.

The IJ denied relief based on an adverse credibility finding, citing differences

between Bah’s testimony and his mother’s affidavit (where he was arrested and who paid

to have him released); and also because Bah failed to meet his burden of proof by

adequately corroborating his claims. The Board dismissed Bah’s appeal, finding no clear

error in the IJ’s adverse credibility finding. App. at 3-4 (A.R. 2-3). The Board also found

no error in the IJ’s decision that Bah should have provided corroboration of his claims

from his wife and his political party. Id.3
4

We have jurisdiction to review a final order of removal of the BIA under 8 U.S.C. 

1252(a)(1). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir. 2001). “[W]hen the BIA

both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we

have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376

F. 3d 215, 222 (3d Cir. 2004). Our standard of review is narrow. We must sustain the

Board’s removal order if there is substantial evidence in the record to support it. Abdille

v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001). 

Although an applicant’s credible testimony may be sufficient to sustain his burden

of proof without corroboration, the IJ may nonetheless require corroboration when the

applicant is “reasonably expected” to do so. Dia v. Ashcroft, 353 F.3d 228, 253 (3d Cir.

2003) (en banc). In deciding whether the IJ reasonably required corroborating evidence,

this Court employs a three-part inquiry: “(1) an identification of facts for which it is

reasonable to expect corroboration; (2) an inquiry as to whether the applicant has

provided information corroborating those facts; and, if he or she has not, (3) an analysis

of whether an applicant has adequately explained why s/he was unable to do so.” 

Mulanga v. Ashcroft, 349 F.3d 123, 134 (3d Cir. 2003) (internal quotation omitted).

Pursuant to 8 U.S.C. § 1252(b)(4) [INA § 242(b)(4)], “[n]o court shall reverse a

determination made by a trier of fact with respect to the availability of corroborating

evidence . . . unless the court finds . . . that a reasonable trier of fact is compelled to

conclude that such corroborating evidence is unavailable.” 
 We thus need not discuss the Board’s alternative holding that Bah’s testimony was 4

not credible.

 Bah’s motion for a stay of removal is denied as moot. 5

5

Bah’s asylum claim was based on the events of June 2003. Bah testified that his

wife was home when he was arrested, and his wife paid money to have him released from

prison. A.R. 184. When asked when he was last in contact with his wife, Bah stated that

“she wrote me a letter but regularly we speak over the phone.” A.R. 177. Because Bah’s

wife was the only witness to his arrest, and was involved in paying for his release, it was

reasonable for the IJ to expect corroboration from Bah’s wife. Bah’s only explanation for

failing to produce an affidavit from his wife is that he was not asked to produce one. 

A.R. 189. The record does not compel a finding that corroboration from Bah’s wife

would be unavailable.

Similarly, the IJ expected corroboration from Bah’s political party. Bah testified

that his party was aware of his arrest and mistreatment. A.R. 190. Bah produced a

certificate attesting to his membership in the party, A.R. 235; and he testified that if the

party had been asked, it would have sent corroboration regarding his arrest and detention. 

A.R. 190. Under these circumstances, it was reasonable for the IJ to expect corroboration

from the political party.

Given Bah’s failure to provide sufficient corroborating evidence, we find that the

BIA’s holding that he failed to meet his burden of proof is supported by substantial

evidence. For the reasons given, we will deny the petition for review. 4 5