Filed: May 14, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 5-14-2008 Kumker v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-2973 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Kumker v. Atty Gen USA" (2008). 2008 Decisions. Paper 1222. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1222 This decision is brought to you for free and open access by the Opinions
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 5-14-2008 Kumker v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-2973 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Kumker v. Atty Gen USA" (2008). 2008 Decisions. Paper 1222. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1222 This decision is brought to you for free and open access by the Opinions o..
More
Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-14-2008
Kumker v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2973
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Kumker v. Atty Gen USA" (2008). 2008 Decisions. Paper 1222.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1222
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.
IMG - 062 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2973
___________
TALAT KUMKER,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A97 512 795)
Immigration Judge: Honorable Margaret Reichenberg
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 1, 2008
Before: FUENTES, WEIS AND GARTH, Circuit Judges
(Opinion filed: May 14, 2008)
___________
OPINION
___________
PER CURIAM
Talat Kumker petitions for review of a Board of Immigration Appeals (“BIA”)
decision denying his motion to reopen his immigration proceedings. We will deny the
petition for review.
Kumker is a native and citizen of Turkey. He came to the United States in 1999 as
a visitor. In 2004, the Immigration and Naturalization Service issued a notice to appear
charging that Kumker was subject to removal because he stayed here longer than
permitted. Kumker conceded that he was removable as charged, and applied for asylum,
withholding of removal, and relief under the Convention Against Torture.
In support of his applications, Kumker testified that he is a member of the Dogru
Yol Party. In June 1999, five men came to his farm and threatened him to leave his party
and join the Refah Party, or they would kill or torture him. Kumker was working hard for
his party at that time. He stated that his duties included driving his father, who was a
prominent party member, putting up party flags, and recruiting people to join the party.
Kumker testified that in July 1999 the men returned to the farm and took Kumker
behind the barn. Two men held him, and the other three beat him with sticks and the end
of their guns. The men said that if he did not leave the party, they would come again and
kill him. Kumker suffered a head injury and pain in his stomach, and he could not work
for a month. He did not go to the hospital because he was afraid the Refah Party
members would find out, and he did not want the doctor to tell the police what happened.
Kumker testified that he fears that the men who threatened him, who are now in
the government, will take him at the airport and put him in jail if he is removed.
Kumker’s friends told him that the men have a list of people who left the country.
The Immigration Judge (“IJ”) concluded that Kumker was not credible. The IJ
noted that Kumker’s father gave a different account of the June 1999 incident. Kumker
testified that he was working alone in the fields when the men came, that his father could
see but could not hear them, and that he told his father what had happened. Kumker’s
father stated in a letter that, while he and his children were working, the men came and
asked them which party they belonged to, and then told them to break off their relations
with their party and join the Refah Party. The IJ also noted that Kumker’s wife stated in a
letter that in June 1999 the men asked Kumker and her father-in-law which party they
supported, and when Kumker told them they supported the Dogru Yol Party, the men said
that was not acceptable and told them to join the Refah Party.
The IJ noted that Kumker submitted a party membership card, but she did not
consider the card significant as it was issued in 2004 after he left Turkey. The IJ further
stated that Kumker had signed a statement in 2004 attesting that he did not have a fear of
returning to Turkey, and that Kumker had told embassy officials that he planned to visit
the United States when he actually intended to stay here. The IJ pointed out other
inconsistencies in the evidence, including Kumker’s and his wife’s description of the men
who came to the farm as “young supporters” of the Refah Party, and his written statement
that members of the village elders and village counsel came to the farm. Kumker’s
testimony and statement also differed as to the place where he was beaten on the farm.
The IJ also found that Kumker was not eligible for asylum because his application
was untimely. Even if timely, the IJ stated that Kumker did not meet his burden of proof
in light of the adverse credibility determination. Similarly, the IJ concluded that Kumker
did not meet his burden of proof for withholding of removal or relief under the
Convention Against Torture.
The BIA dismissed Kumker’s appeal. The BIA agreed that Kumker’s asylum
application was untimely and agreed with the adverse credibility finding based on the
inconsistencies in the evidence cited by the IJ.1
Kumker filed a motion to reopen the proceedings based on alleged new evidence
of changed country conditions in Turkey. He argued that the conditions in Turkey that
led him to flee had deteriorated, and he provided the most recent U.S. Department of
State country report, news articles, and other reports on Turkey.
In denying the motion, the BIA explained that a party seeking to reopen must state
the new facts he intends to establish, supported by evidentiary material, and establish a
prima facie case of statutory and discretionary eligibility for the underlying relief sought.
The BIA stated that Kumker’s evidence did not mention him by name, that Kumker did
not specify how the alleged changed conditions affected him, and that he did not identify
the new facts he would prove. In response to Kumker’s request that the BIA grant him
asylum and withholding of removal, the BIA noted that Kumker’s asylum application was
time-barred, and that he could not satisfy his burden of proof for withholding of removal
in light of the earlier adverse credibility determination. The BIA found that Kumker was
1
The BIA and the IJ granted Kumker voluntary departure, but it does not appear that
he has left the United States.
not eligible for the underlying substantive relief he sought.2
Kumker filed a counseled petition for review in the United States Court of Appeals
for the Second Circuit, which was transferred to this Court. We review the BIA’s denial
of a motion to reopen for an abuse of discretion. Borges v. Gonzalez,
402 F.3d 398, 404
(3d Cir. 2005). Under this standard, we will disturb the BIA’s decision only if it is
arbitrary, irrational, or contrary to law. Id.3
Kumker argues that the BIA applied the wrong legal standard by requiring him to
make a prima facie showing that he is entitled to withholding of removal, as opposed to
asylum. Kumker asserts that the one-year statute of limitations does not apply because he
alleged changed country conditions. The Government concedes that, notwithstanding a
time-barred asylum application and entry of a removal order, an alien may seek asylum in
a motion to reopen based on changed country conditions, if the evidence is material and
was not available at the previous proceeding. See 8 U.S.C. § 1229a(c)(7)(C)(ii). The
Government, however, correctly argues that Kumker cannot meet his burden of proof
under any standard because he was found not credible, his asylum claim is based on the
same claim of political persecution previously presented, and his new evidence is
2
The BIA also noted that seven of Kumker’s eight exhibits were available before the
BIA issued its earlier order, and did not constitute “new” evidence. This conclusion is
not at issue on appeal.
3
We lack jurisdiction to review the BIA’s decision dismissing Kumker’s appeal from
the denial of asylum, withholding of removal, and relief under the Convention Against
Torture. Kumker’s petition for review is only timely with respect to the BIA’s order
denying his motion to reopen. See Stone v. I.N.S.,
514 U.S. 386, 405-06 (1995).
unrelated to his credibility.
Kumker also argues that he established a rise in Islamic fundamentalism that
places him in danger of persecution. Even absent a credibility problem, Kumker did not
address in any detail in his motion to reopen the evidence that he presented and how the
alleged changed conditions will affect him. In his brief, Kumker refers to articles stating
that attacks on civilians and Catholics had increased, and that Islamic fundamentalism
had grown, but he does not explain how these events relate to his claim based on threats
by Refah Party members. Kumker has not shown that the BIA abused its discretion in
denying his motion to reopen.
Accordingly, we will deny the petition for review.