Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-21-2006

Momoh v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3310




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                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 05-3310


                            CHARLES EMERY MOMOH,

                                        Petitioner

                                            v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                      Respondent.


                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                                File No. A28-209-309




                                Argued April 27, 2006

                Before: AMBRO and FUENTES, Circuit Judges, and
                           IRENAS * , District Judge.

                                 (Filed: July 21, 2006)


Andre Michniak (Argued)
Michniak, Bezpalko & Associates, P.C.
1420 Walnut Street
Suite 801


                  *
                     Honorable Joseph E. Irenas, Senior District Judge for the
           District of New Jersey, sitting by designation.
Philadelphia, PA 19102

ATTORNEY FOR PETITIONER

Peter D. Keisler
       Assistant Attorney General, Civil Division
Richard M. Evans
       Assistant Director
Nancy E. Friedman (Argued)
       Attorney
Office of Immigration Litigation
U.S. Department of Justice
Civil Division
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044

ATTORNEYS FOR RESPONDENT


                                  OPINION OF THE COURT


FUENTES, Circuit Judge.

       Charles Emery Momoh petitions for review of an order of the Board of Immigration

Appeals which reversed an Immigration Judge’s decision to defer Momoh’s removal to his

native Liberia under the CAT. The Government challenges this Court’s jurisdiction over this

matter on the ground that Momoh’s claim relates to a matter of fact, rather than a matter of

law, and is thus not reviewable in light of the REAL ID Act. We hold that we have

jurisdiction over this appeal and that the BIA correctly determined that Momoh has failed to

meet his burden of establishing a clear probability that he will be tortured upon returning to

Liberia. Accordingly, we deny Momoh’s petition.



                                              2
I.     Background

       Momoh is a 26-year-old native and citizen of Liberia. Admitted to the United States

as a 14-year-old refugee in September of 1994, he became a lawful permanent resident in

December of 1995. At the age of 17, he was convicted of seven counts of robbery, eight

counts of possession of a firearm and seven counts of criminal conspiracy. As a result of his

conviction, on June 3, 1999, Momoh was issued a Notice to Appear before an Immigration

Judge (the “IJ”). The IJ determined that all charges of removability were sustained by clear

and convincing evidence. Momoh was therefore deemed to be an “aggravated felon” and

thus eligible only for deferral of removal under Article 3 of the United Nations Convention

Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”),

opened for signature Dec. 10, 1984, 1465 U.N.T.S. 85.

       Before the IJ, Momoh based his CAT claim upon two assertions: first, that he was

likely to be detained and tortured upon his return to Liberia because he would be a criminal

deportee and second, that he was likely to be detained and tortured because his father was

a well-known figure from a disfavored political party. As to the latter claim, Momoh

maintained that his father, James Momoh, had been an official of significance within the

regime of Liberian dictator Samuel Doe. James Momoh served in a litany of positions in

Doe and prior governments, including Director of Miscellaneous Taxes, Director of Motor

Vehicles, Special Assistant to the National Chairman of the National Democratic Party of

Liberia (the “NDPL”), city council member of Monrovia, Liberia’s capital, and Vice



                                             3
Chairman of the NDPL for Monseratado County. In this last capacity, he was part of a

delegation that was sent to Guinea to appeal to that nation’s president for humane treatment

of Liberian refugees. It was during that trip that a coup d’etat led by Charles Taylor took

place in Liberia. Because of the coup–which violently usurped the regime in which he had

played an integral role–James Momoh was unable to return to Liberia out of fear for his

safety. He thus sought and was granted asylum in Guinea, but soon moved to Sierra Leone,

before ultimately arriving in the United States, where he was granted refugee status.

       Because of the Taylor administration’s long record of torturing its political opposition,

Petitioner Charles Momoh has surmised that, given the likelihood Liberian authorities would

associate him with his father upon his return, he too would likely be tortured if he were to

be returned to Liberia. In addressing this contention, the IJ first acknowledged that because

James Momoh was once a visible political figure, he would likely be recognized if he were

to return to Liberia, and possibly executed as a result. The IJ based this latter finding in part

on U.S. State Department’s 2003 Country Report on Liberia, which detailed a host of human

rights violations taking place there at that time, including summary executions, unlawful

killings and frequent torture of detainees, all carried out by the government. In light of this

human rights record, the IJ concluded that upon his return to Liberia, Charles Momoh would

probably be detained as a criminal deportee and more likely than not tortured as a result of




                                               4
his convictions abroad.1 (See JA 17a (noting that Liberia “refuses to be a signatory to the

U.N. Convention against Torture and [has a] de facto policy authoriz[ing the] use of torture

as a commonplace tool of sovereignty.”)) The IJ therefore held that notwithstanding Charles

Momoh’s clear removability, he should not be removed from the United States because he

would more likely than not be tortured upon repatriation.

       On appeal, the BIA reversed. It held that as of the date of Momoh’s hearing before

the IJ, December 2, 2004, the conditions in Liberia were different than those relied upon by

the IJ. Taking administrative notice of the U.S. State Department’s 2004 Country Report on

Liberia (the “2004 Country Report”) pursuant to Zubeda v. Ashcroft, 

, 479 (3d

Cir. 2003), the BIA noted that the Taylor regime had been overthrown “almost 1 ½ years

before [Momoh’s] hearing before the Immigration Judge” and that there was no record of any

torture having taken place under the National Transitional Government of Liberia (the

“NTGL”), which had replaced it. (JA 5a.) Because the NTGL did not employ torture as a

“tool of sovereignty,” the BIA reasoned, Momoh “failed to meet his burden of establishing

a clear probability that he will be tortured by or with the acquiescence of the [NTGL]” upon

his return. (JA 5a.) Consequently, the BIA ordered Momoh removed to his native country.




                   1
                     Though the IJ thought it likely that Momoh’s “familial ties”
            would be discovered during detention, the IJ concluded that “what,
            if any[,] impact . . . that will have on his treatment from that point
            forward just cannot be ascertained.” (JA 15a.) The IJ thus rejected
            Momoh’s claim that his ties to his father rendered him more likely
            than not to be tortured.

                                              5
This Petition for Review followed.

II.    Analysis

       A.      Jurisdiction

       The Government argues first that this Court lacks jurisdiction to hear this matter

because Momoh is a criminal alien. Under the REAL ID Act, passed in May of 2005, such

aliens are entitled only to review of their removal orders to the extent they are making

“constitutional claims” or raising “questions of law.” 8 U.S.C. § 1252(a)(2)(D). The

Government maintains that because only the factual determination of whether “substantial

evidence” supports the BIA’s denial of relief is at issue here, this Court lacks jurisdiction.

We disagree.

       We addressed this very issue in Singh v. Gonzales, 

(3d Cir. 2006).

There, we held that the mandate of 8 U.S.C. § 1252(a)(2)(D) grants us the authority to review

CAT and withholding claims not only to the extent they present constitutional claims or

direct questions of law, but where they raise questions relating to the application of law to

undisputed facts as well. 

see also Kamara v. Att’y Gen. of the United States,

(3d Cir. 2005) (noting that we may review “issues of the application of law to

fact, where the facts are undisputed and not the subject of challenge”) (quotation marks and

citation omitted). In such instances, “we exercise plenary review over the BIA’s legal

determinations, affording Chevron[, U.S.A., Inc. v. NRDC, Inc., 

, 843 (1984)]

deference to its reasonable interpretations of statutes it is charged with administering.”



                                              6


(footnote omitted).

       Thus, notwithstanding the Government’s assertion, the REAL ID Act grants us the

authority to review the CAT claims of criminal aliens to the extent they raise constitutional

or legal issues, including claims relating to the application of the law to undisputed facts.

Here the issue is whether under the undisputed facts of this case, Momoh is eligible for relief

under CAT. Thus, we have jurisdiction over this matter.

       B.     Is Momoh Eligible for Relief Under CAT?

       Momoh bears the burden of proving eligibility for protection under CAT. Sevoian v.

Ashcroft, 

, 174-75 (3d Cir. 2002). In order to qualify for such protection,

Momoh must establish “‘that it is more likely than not that he will be tortured if removed to

[Liberia,] the proposed country of removal.’” 

(quoting 8 C.F.R. § 208.16(c)(2)

(2006)).

       Due to the removal of the Taylor regime, the likelihood that Momoh will be tortured

upon returning to Liberia is greatly diminished. That nation’s fate has changed considerably

during the period between when Momoh first came to the United States, in 1994, and

December of 2004, when he had his hearing before the IJ. By this latter date Charles Taylor

was no longer in power, having been removed and replaced by the NTGL a full 1½ years

earlier. This change in power rendered much of the evidence Momoh produced about the

conditions in Liberia–primarily articles about the state of affairs under Taylor and in the

immediate aftermath of his regime–irrelevant. As the BIA noted, Momoh produced no



                                              7
evidence of torture taking place by or with the acquiescence of the NTGL in the year

proceeding his IJ hearing.

       Indeed the BIA took administrative notice of the 2004 Country Report, “which

provides that there were no reports of torture by the National Transitional Government of

Liberia during 2004.” 2 (JA 5a.) Based on this document alone, it is clear that the BIA did

not err in concluding that Momoh has failed to establish a probability that he would be

tortured upon returning to Liberia.3

III.   Conclusion


                    2
                    Though this Court may not take judicial notice of
            information outside of the administrative record pursuant to
            Berishaj v. Ashcroft, 

, 330 (3d Cir. 2004), under
            Zubeda administrative agencies, such as the BIA, may take
            administrative notice of certain facts within their areas of expertise.
            U.S. State Department Country Reports fall within the BIA’s area
            of expertise for these purposes.                See 8 C.F.R. §
            1003.1(d)(3)(iv)(2005) (noting that “[e]xcept for taking
            administrative notice of commonly known facts such as current
            events or the contents of official documents, the Board will not
            engage in factfinding. . .”) (emphasis added).
                    3
                     Though Momoh maintains that in reviewing this matter the
            BIA applied a more stringent standard than “more likely than not,”
            this is clearly not the case. Early in its opinion, the BIA observed
            that the “sole issue is whether [Momoh] has presented sufficient
            evidence to establish that he will more likely than not be tortured
            by the government of Liberia such that he may not be removed to
            that nation.” (JA 4a (emphasis added).) Later, the BIA stated that
            Momoh bears the burden of proof, under CAT, to show that at the
            time of the hearing, “he will more likely than not be tortured by”
            the government that has replaced the Taylor regime. (JA 5a
            (emphasis added).) Under these circumstances, we disagree with
            Momoh’s contention that the BIA applied too stringent a standard.

                                              8
      For the reasons stated above we conclude that we have jurisdiction to hear this matter

and that Petitioner Momoh has not made a showing that he is more likely than not to be

tortured upon returning to Liberia. We therefore deny Momoh’s petition for review.




                                            9