Filed: Apr. 16, 2019
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-2988 _ JOHN DOE, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent _ On Petition for Review of a Decision of the Board of Immigration Appeals (BIA-1: A216-266-959) _ Submitted April 1, 2019 Before: CHAGARES, HARDIMAN, SILER, JR.* Circuit Judges. (Filed: April 16, 2019) * The Honorable Eugene E. Siler, Jr., Senior Circuit Judge for the United States Court of Appeals for the Sixth Circuit, sitting by d
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-2988 _ JOHN DOE, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent _ On Petition for Review of a Decision of the Board of Immigration Appeals (BIA-1: A216-266-959) _ Submitted April 1, 2019 Before: CHAGARES, HARDIMAN, SILER, JR.* Circuit Judges. (Filed: April 16, 2019) * The Honorable Eugene E. Siler, Jr., Senior Circuit Judge for the United States Court of Appeals for the Sixth Circuit, sitting by de..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 18-2988
____________
JOHN DOE,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________
On Petition for Review of a
Decision of the Board of Immigration Appeals
(BIA-1: A216-266-959)
____________
Submitted April 1, 2019
Before: CHAGARES, HARDIMAN, SILER, JR.* Circuit Judges.
(Filed: April 16, 2019)
*
The Honorable Eugene E. Siler, Jr., Senior Circuit Judge for the United States
Court of Appeals for the Sixth Circuit, sitting by designation.
____________
OPINION**
____________
HARDIMAN, Circuit Judge.
John Doe, a native of Turkey, petitions for review of a Board of Immigration
Appeals decision denying his appeal from a final order of removal. For the reasons that
follow, we will deny the petition.
I1
Doe’s petition for review is based largely on the disjointed nature of his
proceedings before three different immigration judges. Judge Walter Durling, Jr.—who
presided at the master calendar hearing—found Doe inadmissible based on the charges in
the Notice to Appear. Three weeks later, Doe filed an application for asylum and a merits
hearing was scheduled for the following month. In the meantime, Judge Durling had
retired, so Judge John Ellington presided at the second hearing. He was unable to address
the merits of Doe’s petition, though, because the video feed from the detention center that
housed Doe was unavailable. Nevertheless, in an effort to make good use of everyone’s
time, Judge Ellington raised administrative matters with counsel for both sides. Toward
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
1
We have jurisdiction under 8 U.S.C. § 1252. Because the BIA affirmed an IJ’s
decision and added analysis of its own, we review both decisions. Martinez v. Att’y Gen.,
693 F.3d 408, 411 (3d Cir. 2012).
2
the end of the hearing, counsel for the Government raised a concern about the fact that
Doe had listed his parents as potential witnesses. That prompted Judge Ellington to say,
“I wouldn’t have taken [the parents’] testimony today,” because of ethical concerns in
light of their pending immigration proceedings. II App. 21.
Doe’s merits hearing occurred the following month before Judge John Carle. After
Doe testified that he had a well-founded fear of persecution because of his involvement
with the Hizmet movement in Turkey, Judge Carle noted: “I don’t really see a lot of
corroboration other than a lot of background country conditions that talk about [the
Hizmet] movement.” II App. 91. Doe’s counsel failed to address corroboration in
response, so Judge Carle asked counsel for the Government whether corroboration was
an issue for her and she responded affirmatively. Judge Carle then said to Doe’s attorney,
“I think in fairness, [counsel], I want to give you just an opportunity to, if you could, give
me any reason why you don’t have something from [Doe’s] mom and dad or a relative or
even relatives that are residing in Turkey. Can you give me an explanation for why?” II
App. 96. The attorney then explained the difficulty of obtaining sworn evidence from
relatives in Turkey because of their fear of retribution by authorities. And regarding
Doe’s parents, his counsel explained:
we were going to call the mother and father and [sic] who would substantially
testify to all the aspects of the respondent’s claim, Your Honor. However,
when we were last in front of Judge Ellington, back in February, you know,
we were made aware of certain conflict of interest issues that were brought
before the judge and the Government and it was, it was our decision not to,
you know, based on this conversation, not to bring the father and the mother
3
in[]to testify . . . . Unfortunately, as far as the corroborating evidence, Your
Honor, that’s the best explanation I can provide you.
II App. 97.
In a thorough oral decision, Judge Carle denied Doe’s application for asylum,
withholding of removal, and relief under the Convention Against Torture. In doing so, he
recognized the applicability of our decision in Abdulai v. Ashcroft, 239 F.3d 542 (3d Cir.
2001), regarding Doe’s failure to corroborate his testimony. The BIA affirmed the IJ’s
decision, highlighting the lack of corroboration.
II
The crux of Doe’s argument is that he is entitled to relief because of the way the
agency handled the corroboration issue. Specifically, Doe claims Judges Ellington and
Carle (A) failed to provide notice of the required corroboration; and (B) rendered the
corroborating evidence “legally [un]available” by preventing Doe’s parents from
testifying. These arguments fail because they are based on flawed premises.
A
As Doe noted, our precedents require “Immigration Judges to ‘give the applicant
notice of what corroboration will be expected and an opportunity to present an
explanation if the applicant cannot produce such corroboration’” before ruling on the
petition. Saravia v. Att’y Gen., 905 F.3d 729, 737 (3d Cir. 2018) (quoting Chukwu v.
Att’y Gen.,
484 F.3d 185, 192 (3d Cir. 2007)); see also
Abdulai, 239 F.3d at 554 (first
enunciating the inquiry). That occurred here. Judge Carle told Doe that lack of
4
corroboration was an issue, specified that his concern related to the relatives one would
expect could corroborate Doe’s testimony, and asked him (twice) to explain why it
wasn’t presented. That notice and opportunity to explain satisfy our requirements. See
Saravia, 905 F.3d at 737.
B
Doe next argues that corroboration by his parents was not “legally available”
because Judge Ellington ruled their testimony inadmissible, which should preclude the
agency from holding its absence against him. The transcript of that hearing shows
otherwise. Judge Ellington’s comment that “I wouldn’t have taken [the parents’]
testimony today” was nothing more than a valid ethical concern stemming from Doe’s
parents’ pending immigration proceedings. II App. 21. After Doe’s attorney said, “I’ll
probably just have them submit some statements in lieu of the testimony,” II App. 19, the
Government showed its cards by warning that it would “ask that the Court not give those
declarations any weight,” II App. 22. Judge Ellington did not rule on the hypothetical
declarations or potential testimony. Instead, he instructed Doe’s attorney to deal with the
ethical concerns, to which Doe’s attorney responded, “I will.” II App. 21.
At the merits hearing, Judge Carle asked Doe’s attorney to explain why Doe’s
parents didn’t testify. Counsel responded, “when we were last in front of Judge
Ellington . . . we were made aware of certain conflict of interest issues . . . and it was, it
was our decision not to, you know, based on this conversation, not to bring the father and
the mother in[]to testify.” II App. 97 (emphasis added). He did not argue that Doe
5
somehow was prevented from securing a waiver so his parents could testify. Nor did he
mention what became of the possible declarations in lieu of their testimony. Instead, he
explained “it was our decision . . . not to bring the father and the mother in[]to testify.”
Id. In view of these representations, Judge Carle found this “was an informed decision on
the part of counsel,” I App. 18, and we see no reason to conclude otherwise.
In sum, neither Judge Ellington nor Judge Carle did anything to prevent Doe’s
parents from testifying or to preclude him from offering corroboration from any other
source. Thus, we are not “compelled to conclude that such corroborating evidence is
unavailable,” and will deny the petition for review. 8 U.S.C. § 1252(b)(4)(D); see
Saravia, 905 F.3d at 736–37.2
2
Doe also suggests it was fundamentally unfair for Judge Carle to fault him for the
lack of evidence Judge Ellington had ruled inadmissible. This claim—which simply
recasts the previously discussed claim in a constitutional light—can be denied for the
reasons already stated. Even more fundamentally, Doe failed to exhaust the claim before
the agency. See Khan v. Att’y Gen., 448 F.3d 226, 235–36 & n.8 (3d Cir. 2006).
6
