Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-28-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4332




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 02-4332




                               FATOUMATA SIDIBEH,

                                             Petitioner

                                            v.

                     KENNETH JOHN ELWOOD, DISTRICT
                       DIRECTOR, IMMIGRATION AND
                        NATURALIZATION SERVICE;
                   JOHN ASHCROFT, ATTORNEY GENERAL
                          OF THE UNITED STATES;
                     JAMES W. ZIGLAR, COMMISSIONER,
                IMMIGRATION AND NATURALIZATION SERVICE,

                                                 Respondents




                    ON PETITION FOR REVIEW OF AN ORDER
                   OF THE BOARD OF IMMIGRATION APPEALS

                                  (No. A 76 581 535)


                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 16, 2004

                Before: ALITO, SMITH, AND DuBOIS * , Circuit Judges.


      *
       The Honorable Jan E. DuBois, District Judge, United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
                              (Opinion Filed: July 28, 2004)




                               OPINION OF THE COURT


PER CURIAM:

       This is a petition for review of an Immigration Judge’s decision denying asylum,

withholding of removal, and relief under the Convention Against Torture. As we write

only for the parties involved, we need not review all the facts. We hold that we are

without jurisdiction to review the Immigration Judge’s finding of untimeliness and that

Petitioner’s other argument is foreclosed by a recent decision of this court.

       Fatoumata Sidibeh (“Sidibeh”) is a female native and citizen of The Gambia and

member of the Sarahuli Tribe. On February 15, 1995, Sidibeh entered the United States

as a non-immigrant visitor for pleasure and overstayed the visa’s March 30, 1995,

deadline. On May 5, 1998, the Immigration and Naturalization Service (“INS”) served

her with a Notice to Appear (“NTA”), subjecting her to removal from the United States.

       Sidibeh admitted the allegations of the NTA, and filed an application for asylum,

withholding of removal, and protection under the Convention Against Terrorism

(“CAT”), claiming that she faced circumcision in The Gambia for her arranged marriage

to her cousin. Sidibeh claimed that, pursuant to family and Sarahuli custom, she would

be circumcised before her marriage.


                                              2
       The Immigration Judge (“IJ”) presiding found Sidibeh’s testimony questionable

and ordered a medical examination that revealed that Sidibeh had previously undergone

female circumcision, which was consistent with State Department reports that found that

the Sarahuli tribe performs circumcision within one week following birth and not upon

marriage.

       At the conclusion of the hearing, the IJ held that Sidibeh was barred from asylum

because she failed to file her asylum application within the required one-year statutory

period. 8 U.S.C. § 1158(a)(2)(B). The IJ further held that Sidibeh had made an

insufficient showing of changed circumstances to warrant a waiver of the one-year time

limit. 8 U.S.C. 1158(a)(2)(D). As for Sidibeh’s remaining CAT claim, the IJ held that

Sidibeh failed to establish a clear probability of persecution based on race, religion,

nationality, membership in a particular social group, or political opinion.1 The Board of

Immigration Appeals (“BIA”) affirmed without opinion.

       We will “not disturb the IJ’s credibility determination and findings of fact if they

are ‘supported by reasonable, substantial and probative evidence on the record considered

as a whole.’” Tarrawally v. Ashcroft, 

, 184 (3d Cir. 2003) (quoting


       1
        The IJ found Sidibeh’s testimony inconsistent and contradictory, stating that such
contradiction naturally weakens credibility. Placing much weight on inconsistencies
concerning her previous circumcision and her testimony that her parents told her she
would have to be circumcised before she married, the IJ refused to exercise favorable
discretion.
       The IJ further stated that because Sidibeh had already been circumcised, the
procedure would no longer apply and, thus, found no “well-founded” fear of persecution.

                                              3
Balasubramanrim v. I.N.S., 

, 161 (3d Cir. 1998)) (internal quotation marks

and citation omitted). We review de novo the issue of whether we have jurisdiction to

determine what constitutes extraordinary circumstances for a late-filed asylum petition.

(citing Valansi v. Ashcroft, 

, 207 (3d Cir.

2002)).

       First, we hold that we are without jurisdiction to hear a challenge to the IJ’s

determination that Petitioner did not file a timely asylum application under 8 U.S.C. §

1158(a)(2)(B) and did not qualify for relief under 8 U.S.C. § 1158 (a)(2)(D). Under 8

U.S.C. § 1158(a)(3), “[n]o court shall have jurisdiction to review any determination of the

Attorney General under paragraph [(a)](2),” which includes the IJ’s conclusions with

respect to the timeliness of Petitioner’s asylum application and whether changed

circumstances warrant waiving the one-year time limitation for such applications. See

.2

       Second, Sidibeh’s argument that the BIA’s affirmance of the IJ’s order without




       2
         While we have jurisdiction under INA section 242, 8 U.S.C. § 1252, to review the
IJ’s denial of Petitioner’s request for withholding of removal or protection under CAT,
Petitioner casts her argument solely in terms of her asylum claim and has therefore
waived any argument that the IJ erred with respect to those determinations. See F.D.I.C.
v. Deglau, 

, 169 (3d Cir. 2001) (finding a challenge waived if not in the
opening brief).
        Even if there had been no waiver, we would still find that the IJ’s adverse
credibility determination was supported by substantial evidence and that the petitioner
failed to meet her burden with respect to Petitioner’s request for withholding of removal
or protection under CAT.

                                              4
opinion denied her of an individualized determination of her case is foreclosed by Dia v.

Ashcroft, 

, 238 (3d Cir. 2003).

      For the foregoing reasons we deny the petition for review of the BIA’s ruling.




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