Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-26-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3891




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                                                                   NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                     No. 06-3891
                                     __________

                                  SAKIR POLAT,
                                                     Petitioner,
                                          v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                         Respondent
                             __________

                        Petition for Review of an Order of the
                         United States Department of Justice
                            Board of Immigration Appeals
                                BIA No. A79-399-963
                          Immigration Judge: Annie Garcy
                                      __________

                     Submitted Under Third Circuit LAR 34.1(a)
                                on January 28, 2008

              Before: SCIRICA, Chief Judge, RENDELL, Circuit Judge,
                         and RODRIGUEZ, District Judge.

                               (Filed March 26, 2008)

                                     __________

                             OPINION OF THE COURT
                                   __________

________________

  *   Honorable Joseph H. Rodriguez, Senior Judge of the United States District Court
      for the District of New Jersey, sitting by designation.
RENDELL, Circuit Judge.

       Sakir Polat (“Polat”) petitions for review of the denial by the Board of

Immigration appeals (“BIA”) of his motion to reopen proceedings and remand to the

Immigration Judge (“IJ”) for further proceedings. Polat urges that his motion should have

been granted because he presented newly-obtained evidence regarding deteriorated

country conditions in Turkey that was not available at the time of his original hearing and

is material to his claim.

       Polat is a native of Turkey who arrived in Miami on May 1, 2001, without valid

entry documents. In the airport interview, Polat stated that he was seeking asylum, had

never been arrested, and came to the United States because he wanted to practice his

religion. He stated that he had been persecuted in Turkey because he was a member of a

religious party.

       Later, in his credible fear interview, he indicated that Turkish law prohibits his

religion and he was afraid that if returned to Turkey he would be arrested because the

“police there arrest people for no reason.” (J.A. 433) Asked if he had a fear of harm from

anyone in the country, he replied that he could not get work because of his religion and

would be arrested because he was a member of the Refah party. (J.A. 433)

       Later, in his application for political asylum and withholding of removal, Polat

stated for the first time that, in August of 1997, he had participated in a demonstration

organized by the Fazilet party and had been arrested and taken to the police station.



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There he was threatened by police not to protest against the Turkish government or he

would be imprisoned. He stated that his brother paid a “ransom-bribe” to the police so as

to obtain his release. (J.A. 420) Additionally, he recounted that, after participating in

another demonstration organized by the Fazilet party in May 1999, he was arrested again

and kept at a police station for four days, during which time he was threatened and

beaten. Again, his family came to his aid by bribing the police, thereby allowing him to

“escape” from jail. (J.A. 421)

          At the hearing before the IJ, Polat presented testimony and documentary evidence

regarding conditions in Turkey. He detailed his membership in the Fazilet party and the

details of the demonstrations and arrests referred to in his application.

          Polat testified that, after he “escaped” from jail, he received an arrest warrant from

the Jandarma, the Turkish Military Police, in August 1999. He testified that it came in

the mail to his apartment in Turkey. The government disputed the authenticity of the

warrant and Polat’s claim that he received it at his home in Turkey. (J.A. 232-37) The

IJ also noted that the warrant was not addressed to Polat and referenced a civil court

decision. (J.A. 270) Polat testified that, notwithstanding having received the arrest

warrant in 1999, as he contended, he traveled extensively after that time, to Romania,

Holland, and Spain, and needed an exit permit from the “exit police” every time he did

travel.




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       The IJ found that Polat was not credible. She noted that Polat had testified that

after he was arrested, he obtained a passport without any trouble and that thereafter,

notwithstanding an arrest warrant, he had traveled so many times out of Turkey that he

couldn’t even remember all of his travels. (J.A. 121) The IJ found it significant that he

had not remembered to mention the arrests in Turkey during his airport interview or his

credible fear interview. (J.A. 122-23)

       The BIA affirmed the IJ without opinion on May 3, 2004. Polat did not seek

review of that decision before the Court of Appeals.

       Polat’s petition to reopen is based upon “new and previously unavailable evidence

that is material,” namely:

       1.     A letter from his father stating that the Turkish police are still looking for
              him.

       2.     A letter from his brother warning him not to come back because the police
              are still looking for him.

       3.     A document purporting to be signed by the police commissioner regarding
              his prior arrests, stating that he will be “prosecuted and punished
              accordingly” if he returns to Turkey.

       4.     The U.S. State Department Country Report for Turkey for the year 2004.

       5.     An Amnesty International Turkey-Report 2005 and a Human Rights Watch
              article.

(J.A. 19-20; 25-82)




                                              4
       The BIA denied the motion to reopen as untimely because it was not filed within

90 days after the BIA’s decision denying his appeal. In fact, the motion to reopen was not

received by the BIA until April of 2006, nearly two years late.

       We review the denial of a motion to reopen immigration proceedings for abuse of

discretion. See Guo v. Ashcroft, 

, 562 (3d Cir. 2004). The BIA’s decision

will not be disturbed unless it is arbitrary, irrational, or contrary to law. 

traditionally disfavored motions to reopen because “as a general matter,

every delay works to the advantage of the deportable alien who wishes merely to remain

in the United States.” Zu Yong Yu v. Ashcroft, 259 F.3d 127,131 (3d Cir. 2001) (quoting

INS v. Doherty, 

, 323 (1992)). We make exception to the 90-day bar for

filing a motion to reopen only if there are changed country conditions as demonstrated by

evidence that is material and could not have been discovered at the time of the

proceedings. See Filja v. Gonzales, 

, 253 (3d Cir. 2006).

       The BIA concluded that the evidence proffered did not rehabilitate Polat’s overall

credibility and that, therefore, there was no basis to reopen the proceedings.1

       We will not disturb the BIA’s conclusion because the new evidence was not

material to Polat’s claim in that it did not address the primary reason for the previous

ruling, namely, Polat’s lack of credibility. The letters offered are merely cumulative of


  1
   We note that the credibility determination, as such, is not at issue because Polat did
not seek review of the BIA’s dismissal of his appeal. The only matter before us is the
propriety of the denial of reopening. See Stone v. INS, 

, 406 (1995).

                                                5
evidence already offered. Polat had offered a letter from his brother at the original

hearing that was substantially the same. The evidence does not explain how and why

Polat was permitted to travel in and out of Turkey without difficulty for two years after

the warrant was issued. Further, all of this evidence, other than the new State

Department Report and NGO reports, could have been obtained previously. As to these

new reports specific to Turkey, they do not affect Polat’s credibility as to his experiences.

       For the foregoing reasons, we will DENY the Petition for Review.

______________




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