[Copyrighted Material Omitted]
On Petition for Review of an Order of the Board of Immigration Appeals. No. A079 260 838.
Edward W. Farrell, RUSSELL IMMIGRATION LAW FIRM, Louisville, Kentucky, for Petitioner.
Anthony C. Payne, Jesse M. Bless, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
BEFORE: BATCHELDER and WHITE, Circuit Judges; COX, District Judge[*].
ALICE M. BATCHELDER, Circuit Judge.
Petitioner Babacar Gaye is an illegal alien who seeks relief from a removal order entered against him. Gaye, a Mauritanian who did not apply for asylum within a year of entering the United States, argues that his asylum claim should be granted,
that he was entitled to notice regarding the sort of evidence he needed to prevail on his claims and thus we should withhold removal, that his counsel was ineffective, and that his due-process rights have been violated. Because we lack jurisdiction to consider his asylum claim, we DISMISS that part of his petition. Because Gaye did not raise his constitutional claim below, and thus failed to exhaust his administrative remedies, we DISMISS that part of his petition as well. We hold as well that federal law does not require courts to give aliens advance notice of the sort of evidence they must produce to prevail in their efforts to remain in the United States, and DENY the petition for review on all remaining issues.
According to his application for asylum and his testimony before Immigration Judge Lawrence Burman, Babacar Gaye is an ethnic Wolof who was born in Mauritania. Gaye claims that he, like his parents, was a member of the Union for Democrats (UFD) political party, which " advocate[d] for the rights of blacks in Mauritania," and participated in demonstrations against the government. Gaye claims that in 1993, white Moor soldiers arrested Gaye and his family at their home and seized their identification cards. Gaye claims that he and others were taken to a military camp, where the soldiers severely beat Gaye, referred to him as a slave, and forced him to perform hard labor. He further claims that after three weeks, the soldiers forced him and his family to cross into Senegal. The soldiers allegedly told Gaye and his family that they should be slaves and did not belong in Mauritania because they were black and members of the UFD, and threatened to kill them if they returned to Mauritania.
Gaye spent the next three or four years in a refugee camp operated by the Red Cross near Dakar, Senegal. There, he met Ousman Ba, who rented a house for Gaye and his family. After three years, Ba helped Gaye come to the United States by providing Gaye with a plane ticket and a false Senegalese passport that had Gaye's picture but the name of Samba N'Diaye. Gaye agreed to reimburse Ba after he started working in the United States. Gaye's family remained in Senegal.
Gaye claims to have arrived in the United States on October 17, 2000, at New York's John F. Kennedy International Airport (JFK). The man with whom Gaye traveled took the passport after Gaye cleared immigration. Ba allegedly arranged for Alie Ceesay to pick Gaye up at the airport, and Gaye apparently stayed with Ceesay in New York for two weeks. He then moved to Cincinnati, Ohio, and after approximately one year, to Louisville, Kentucky.
Gaye filed an application for asylum on February 12, 2001. In July 2001, the Immigration and Naturalization Service (now the Department of Homeland Security) served Gaye with a Notice to Appear (NTA), alleging that he was a native and citizen of Mauritania, although not contesting at that time that he had entered the United States around October 17, 2000, and that he did not possess or present a valid entry document. Gaye was charged as removable under 8 U.S.C. § 237(a)(1)(A). Gaye appeared with counsel before an Immigration Judge (IJ) in March 2003, admitted the allegations in the NTA, and conceded his removability. He sought asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT).
In 2006 and 2007, Gaye testified in support of his asylum application before IJ
Burman. Gaye also offered a copy of his purported birth certificate; a letter from his cousin Amadou Gaye, informing Gaye that Mauritanian officials were still searching for him; a letter from Ba, warning him to take care in communicating with his family and friends in Mauritania because authorities were continuing to seek information about Gaye's whereabouts; news articles and reports on conditions in Mauritania; a letter from Alie Ceesay, stating that he picked Gaye up from JFK on October 17, 2000, and hosted him for two weeks; the testimony of Abdulai Aw, a Mauritanian national who was granted asylum in the United States in 2004; and the testimony of Sait Ceesay, brother of Alie Ceesay. Aw testified that he met Gaye on two occasions while at a soccer tournament in Mauritania and that he again met Gaye in the United States in 2005. He also testified that he did not know of the problems Gaye had in Mauritania. Sait Ceesay testified that his brother picked Gaye up at the airport on October 17, 2000.
At the conclusion of an April 2007 hearing, IJ Burman rendered an oral decision denying Gaye's application for asylum, withholding of removal, and relief under the CAT. IJ Burman found that Gaye did not carry his burden of showing that he filed his asylum application within one year of arriving in the United States, noting that there is no record of an alien being admitted into the United States at JFK on October 17, 2000, under the name Gaye claimed was on his fake passport. The IJ's denial of asylum, withholding of removal, and relief under the CAT was also based on his finding that Sait Ceesay was not a credible witness and that, although he did not testify, Alie Ceesay's letter " really could require some cross-examination." Burman found that Gaye was not credible (1) because of discrepancies between Gaye's claim that he was forcibly expelled from Mauritania in 1993 and reports that such mass deportations took place between 1989 and 1991; (2) it is not plausible that the soldier's actions were politically motivated since they followed the pattern of ethnic cleansing; and (3) it is implausible that the soldiers would have continued searching for Gaye after his departure from Mauritania. Burman further found that Gaye's submissions regarding slavery would not have applied to him as a member of the Wolof ethnic group. Regarding the CAT, the IJ further found that Gaye would not likely be tortured if he returned to Mauritania.
Gaye appealed to the Board of Immigration Appeals (BIA), which concluded that the IJ erred in his analysis of Gaye's asylum claim. The BIA noted that " the main basis for the Immigration Judge's adverse credibility determination appears to be the Immigration Judge's finding that the date of [Gaye]'s alleged deportation from Mauritania is inconsistent with country conditions reports," and concluded that this finding was not supported by the record. The BIA remanded " for the Immigration Judge to make a specific assessment of [Gaye]'s credibility."
On remand, IJ Burman " carefully reviewed [his] decision, the evidence of record, the transcript of trial, and the BIA's remand order," but found that he could not " serve as an impartial and unbiased fact finder." The IJ stated that he " remain[ed] convinced to a moral certainty that [Gaye]'s testimony was false," but recused himself " [i]n order to do justice to [Gaye]."
Gaye's case was reassigned to Immigration Judge Rebecca Holt, who held a preliminary hearing to determine whether she needed to hold an evidentiary hearing to assess Gaye's credibility. She stated that she read the BIA's remand order to require a new hearing, expressed uncertainty as to whether she could make a credibility
determination based on the transcripts or audio of the proceedings before IJ Burman, and noted that the Immigration and Nationality Act's definition of credibility determinations " is based in part on seeing [Gaye]." Gaye stated he " would love to have a new hearing," and the Government agreed to a limited evidentiary hearing to update the record and assess Gaye's credibility. Although IJ Holt initially stated she would set the matter for a hearing, after reviewing the record as it then stood, she issued a written decision denying Gaye relief after " consider[ing] all of the evidence in the record," without a second hearing.
After reviewing the evidentiary record, IJ Holt found Gaye was not credible because there were inconsistencies in his testimony that appeared to be attempts to bolster his claims. She concluded that Gaye failed to prove by clear and convincing evidence that he filed his asylum application within the statutory one-year period, based on her finding that Gaye and Sait Ceesay were not credible, and that Alie Ceesay's letter deserved little weight. In addition, IJ Holt determined that Gaye should have obtained from Ba some evidence corroborating his entry date. The IJ further found that Gaye failed to provide sufficient corroborating evidence to meet his burden for withholding of removal and relief under the CAT.
Gaye appealed a second time to the BIA. The BIA dismissed the appeal on June 3, 2014, concluding that based on " the reasons stated in the Immigration Judge's decision," Gaye did not meet his burden of showing his application for asylum was timely, holding that " [o]ther than [Gaye]'s unpersuasive testimony, his witness'[s] unconvincing testimony," and Alie Ceesay's " brief written statement . .., there [was] no evidence in the record to show [Gaye]'s entry date into the United States." The BIA also agreed with the IJ that Gaye failed to provide reasonably available corroborating evidence to support his withholding claim. Additionally, the BIA rejected Gaye's claim that he received ineffective assistance of counsel because Gaye did not proffer the evidence he alleged his former attorneys had failed to admit into the record and did not demonstrate whether that evidence would have changed the result. Finally, the BIA concluded Gaye was not entitled to relief under the CAT because he did not show that he was likely to face torture in Mauritania. Gaye now seeks review of the BIA's second decision, filing a timely petition for review on July 2, 2014.
This case is largely governed by the version of the Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (current version codified as amended in scattered sections of 8 U.S.C.), that was in effect in 2001. The INA was subsequently amended again by the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231. We review de novo both questions of subject-matter jurisdiction and questions of law. Giraldo v. Holder, 654 F.3d 609, 610 (6th Cir. 2011). This court sustains the BIA's denial of withholding of removal unless the denial is " manifestly contrary to law." Almuhtaseb v. Gonzales, 453 F.3d 743, 749 (6th Cir. 2009) (quoting 8 U.S.C. § 1252(b)(4)(C)). We review findings of fact, including credibility determinations, for substantial evidence. Abdurakhmanov v. Holder, 735 F.3d 341, 345 (6th Cir. 2012). " The substantial-evidence standard requires us to defer to the agency's findings of fact if supported by reasonable, substantial, and probative evidence on the record considered as a whole. Under this standard, we will not reverse a factual determination
. . . unless we find that the evidence not only supports a contrary conclusion, but compels it." Id. (citations and internal quotation marks omitted); see also 8 U.S.C. § 1252(b)(4)(B). We defer to the BIA's interpretation of the statutes and regulations it administers, so long as the interpretation is reasonable. Lin v. Holder, 565 F.3d 971, 976 (6th Cir. 2009). Finally, we review de novo an alien's claim of ineffective ...