Filed: Jun. 06, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 6-6-2008 Mufulu v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-3044 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Mufulu v. Atty Gen USA" (2008). 2008 Decisions. Paper 1045. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1045 This decision is brought to you for free and open access by the Opinions o
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 6-6-2008 Mufulu v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-3044 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Mufulu v. Atty Gen USA" (2008). 2008 Decisions. Paper 1045. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1045 This decision is brought to you for free and open access by the Opinions of..
More
Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
6-6-2008
Mufulu v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3044
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Mufulu v. Atty Gen USA" (2008). 2008 Decisions. Paper 1045.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1045
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3044
___________
GILONDA KINGAMBO MUFULU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A73 569 669)
Immigration Judge: Honorable Donald Ferlise
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 4, 2008
Before: FUENTES, ALDISERT and GARTH, Circuit Judges
(Opinion filed June 6, 2008 )
___________
OPINION
___________
PER CURIAM
Gilonda Mufulu petitions for review of a Board of Immigration Appeals (“BIA”)
decision dismissing his appeal of the Immigration Judge’s (“IJ”) decision denying his
applications for relief from removal. We will deny the petition for review.
Mufulu is a native and citizen of Zaire, now the Democratic Republic of Congo.
He entered the United States in 1990 as a temporary worker. In 1995, the Immigration
and Naturalization Service issued an order to show cause charging that Mufulu was
subject to deportation because he stayed here longer than permitted. Mufulu conceded
that he was deportable as charged, and applied for asylum and withholding of removal.
This case has a lengthy procedural history. In 1996, the IJ denied Mufulu’s
applications for relief from removal. The IJ found Mufulu’s testimony implausible and
inconsistent, and concluded that he intentionally lied to the court to obtain an immigration
benefit. Mufulu appealed, and then moved to remand his case so that the IJ could
consider an adjustment of status application based on an approved employment
certification. The BIA remanded the case, but Mufulu did not appear for the hearing. In
April 2002, the IJ pretermitted the application for lack of prosecution, and reinstated the
deportation order.
The proceedings were later reopened because Mufulu did not have notice of the
hearing on the adjustment of status application. In September 2002, the IJ held a hearing,
and determined that Mufulu needed a waiver in order to adjust his status because of the
finding that he had lied to the court. The IJ decided that Mufulu did not have the requisite
familial relationships in the United States to obtain a waiver. The IJ pretermitted the
adjustment of status application, and remanded the case to the BIA to decide Mufulu’s
appeal of the denial of asylum and withholding of deportation.
The BIA dismissed Mufulu’s appeal, erroneously believing that he was appealing
the IJ’s April 2002 decision ordering his deportation after he failed to appear. We
granted Mufulu’s petition for review and remanded the case to the BIA to consider his
appeal of the September 2002 order. On remand, the BIA decided that the record
supported the IJ’s 1996 finding that Mufulu provided false testimony, and that Mufulu
was statutorily ineligible for an adjustment of status. This petition for review followed.
In support of his asylum claim, Mufulu testified that he worked as a teacher until
the Mobutu government forced him to stop teaching. Mufulu was a union leader. He
stated that he was imprisoned for three months in 1977 because he tried to get teachers a
raise. Mufulu further testified that, after he stopped teaching, he joined a dance troupe
that performed throughout Africa, and he wrote and performed a song that became the
song of opposition to the Mobutu regime. Mufulu testified that he was imprisoned for
three months in 1988 and three months in 1989 because of the song. He stated that his
wife died of a heart attack on one visit by police to his home, and that the police shot his
son after he left Zaire. Mufulu believed that he would be killed if he returned to Zaire.
Mufulu argues that he was denied due process because he did not have an
interpreter at his hearing. In rejecting this argument, the BIA correctly noted that Mufulu
stated at his first hearing that he spoke and understood English, and that he did not need
an interpreter. Mufulu’s lawyer agreed. At his next hearing, Mufulu, represented by a
different lawyer, again stated that he spoke and understood English. Mufulu’s lawyer
confirmed that an interpreter was not requested, but told the IJ, “I see every now and then
[Mufulu] could have used [an interpreter].” App. at 104. When asked if the case could
proceed, his lawyer stated, “Yeah, I think we can go forward if you can bear with him.
For the most part, he understands and speaks very well.” App. at 104. His lawyer stated
that an interpreter would not be a basis for an appeal.
Mufulu concedes that he did not request an interpreter, but argues that the IJ had a
duty to provide one when it became apparent that he was having trouble communicating
in English. The administrative record, however, reflects that Mufulu had little difficulty
answering the questions that his lawyer and the IJ posed on direct examination. The BIA
correctly noted that there were no questions about Mufulu’s ability to understand the
proceedings until inconsistencies in his testimony came out on cross-examination.1
Mufulu then stated that he may have confused a date in English. He also stated that he
was confused during a discussion about when he signed or received papers related to his
arrest. The IJ asked Mufulu to recite the months of the year, apparently to make sure that
he was not confusing them, and Mufulu did so correctly. We agree with the BIA that
Mufulu’s confusion during cross-examination did not necessarily reflect a language
barrier. Neither Mufulu nor his lawyer stated that Mufulu was having difficulty
understanding the proceedings or that he needed an interpreter. Many of the excerpts
from the record relied upon by Mufulu reflect attempts to clarify the record, not an
inability to communicate in English.
Mufulu also argues that the IJ’s adverse credibility determination was based, in
part, on the IJ’s own bias. We have criticized the conduct of the IJ who presided over
1
Mufulu did state on direct examination that he did not understand a question that the
IJ asked about the illnesses that people had in prison, but when rephrased, Mufulu
answered the question. App. at 141.
Mufulu’s hearing in other cases. See, e.g., Fiadjoe v. Attorney General, 411 F.3d 135,
142-46 (3d Cir. 2005). However, the administrative record in this case does not reflect
conduct that in itself requires that we reject the IJ’s credibility finding. We recognize
that, like in Fiadjoe, the IJ asked Mufulu if he was sleeping when he rendered his
decision, and that the IJ told Mufulu that he thought he was lying. But, unlike in Fiadjoe,
the record does not reflect that the IJ was hostile or abusive during the presentation of
Mufulu’s case.2
Mufulu further argues that his testimony was credible and established that he
suffered past persecution. The BIA concluded that the record supported the IJ’s finding
that Mufulu provided false testimony. The BIA explained that Mufulu presented
conflicting testimony regarding when he was arrested in 1989, when authorities took
away his academic documents, and the circumstances surrounding when he was stabbed
in the foot. The BIA also stated that the IJ reasonably found it implausible that Mufulu
was held for three months for composing and singing an anti-government song, but was
then allowed to leave Zaire to travel with a dance troupe. The BIA noted that Mufulu’s
release order stated that he was not allowed to leave the city or go to any airport, train
station, or port, and that Mufulu’s explanation – that the troupe’s president’s brother
worked for the government and got him a visa – was implausible. The BIA also found
2
The IJ made a sarcastic remark when Mufulu testified that President Mobuto had
heard people singing the song that he wrote. The IJ commented, “Maybe [Mobutu]
would have like an autographed copy [of his tape].” App. at 160. We do not condone
this remark, but we find it insufficient to establish bias on the IJ’s part.
Mufulu’s testimony that he was forced to go without food or water for three weeks
implausible. The administrative record supports the inconsistencies cited by the BIA.
We can not conclude that “any reasonable adjudicator would be compelled to conclude”
that Mufulu was credible or did not provide false testimony. See Xie v. Ashcroft, 359
F.3d 239, 243 (3d Cir. 2004) (setting forth substantial evidence standard of review).
Finally, Mufulu argues that the BIA erred in deciding that the IJ’s finding of false
testimony could form the basis for the denial of his adjustment of status application. We
disagree. An alien is ineligible for adjustment of status if he is inadmissible for
permanent residence. 8 U.S.C. § 1255(a)(2). An alien who wilfully misrepresents a
material fact in order to gain asylum is inadmissible. Id. § 1182(a)(6)(C). Because the
BIA correctly concluded that the record supports the IJ’s finding of false testimony, the
BIA did not err in finding Mufulu ineligible for adjustment of status. See Falaja v.
Gonzales,
418 F.3d 889, 898-99 (8th Cir. 2005) (holding that an alien who wilfully
misrepresented material facts in an attempt to gain asylum was inadmissible and ineligible
for adjustment of status).3
Accordingly, we will deny the petition for review.
3
Korytnyuk v. Ashcroft, 396 F.3d 272 (3d Cir. 2005), relied upon by Mufulu, is
distinguishable. We held that the BIA erred in denying an alien’s motion to remand to
apply for adjustment of status based on a finding that the alien had engaged in criminal
activities where that finding was not supported by substantial evidence.
