Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-3-2009

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Precedential or Non-Precedential: Precedential

Docket No. 07-1865




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PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                      No. 07-1865


           EMMANUEL TANGO SANDIE,
                                Petitioner

                            v.

  ATTORNEY GENERAL OF THE UNITED STATES,
                                  Respondent


  On Petition for Review from the Board of Immigration
                        Appeals
                  BIA No. A98-775-770
    Immigration Judge: The Honorable Miriam Mills


   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                  October 20, 2008

       Before: SMITH, COWEN, Circuit Judges




                           1
             and THOMPSON, District Judge *

                    (Filed: April 3, 2009)
Alexander Maltas
Latham & Watkins
555 11th Street, N.W.
Suite 1000
Washington, DC 20004

Michele R. Pistone
Villanova Law School
Clinic for Asylum Refugee & Emigrant Services
299 North Spring Mill Road
Room 4
Villanova, PA 19085
       Attorneys for Petitioner

Lindsay B. Glauner
Unites States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

Theodore C. Hirt
United States Department of Labor


      *
        The Honorable Anne E. Thompson, Senior United States
District Judge for the District of New Jersey, sitting by
designation.

                              2
Office of Immigration Litigation
Room 5312
450 5th Street, N.W.
Washington, DC 20001

Michael P. Lindemann
John D. Williams
Unites States Department of Justice
Office of Immigration Litigation
Suite 700S
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
       Attorneys for Respondent




                           OPINION


SMITH, Circuit Judge.

        Emmanuel Tango Sandie petitions for review of a Board
of Immigration Appeals (BIA) decision denying him asylum.
Sandie claims he has a well-founded fear of persecution. He
alleges that a secret group, the Wonde & Poro Society, will kill
him, if he returns to his native Sierra Leone, because he refuses
to become their Supreme Leader. Alternatively, if he were to
acquiesce and become Supreme Leader of this group, he claims
that he would be tortured and forced to commit murder as part

                               3
of its leadership initiation ritual. The BIA affirmed the
Immigration Judge’s (IJ) determination that Sandie failed to
corroborate his story and so failed to carry his burden of proof.
Because the BIA committed no error in reviewing the IJ’s
corroboration determination, we will deny Sandie’s petition.

        Sandie successfully moved to stay his removal while his
petition for review was pending. Subsequently, Sandie sought
clarification that his motion to stay removal implicitly included
a request to stay the voluntary departure period. Because
removal and voluntary departure are different measures
implicating different equities, we hold that a request to stay a
voluntary departure period is not implicit in a motion to stay
removal. Accordingly, we will deny Sandie the relief he seeks.

                                I.

        Sandie is a citizen and native of Sierra Leone. He arrived
in the United States in December 2003 to attend high school for
one semester, entering as a non-immigrant J-1 visitor with
authorization to remain until June 9, 2004. Sandie remained in
the United States beyond that date. On March 5, 2005, he
applied for asylum, withholding of removal, and protection
pursuant to the Convention Against Torture (CAT).

        In April 2005, the Department of Homeland Security
initiated removal proceedings against Sandie. Before the
Immigration Court, Sandie conceded removability and renewed

                                4
his application for asylum, withholding of removal, and
protection under CAT.

        The IJ heard Sandie testify in support of his application
on November 22, 2005. She denied Sandie’s application on
March 24, 2006, finding that Sandie’s testimony was not
credible and that, even if his testimony were viewed as “weak”
instead of not credible, he failed to meet his burden of proof due
to a lack of reliable evidence to corroborate his testimony. At the
same time, the IJ granted Sandie’s request to depart voluntarily
from the United States.

        Sandie appealed the IJ’s decision denying his application
for asylum. On February 23, 2007, the BIA affirmed the IJ’s
determination that Sandie failed to corroborate his story so that
even if Sandie’s testimony were presumed credible, he did not
meet his burden of proof. The BIA also concluded that Sandie
had not established that his refusal to become the Supreme
Leader of the Wonde & Poro Society was cognizable as a
political opinion under the Immigration and Nationality Act,
which requires fear of persecution based on race, religion,
nationality, membership in a particular social group, or political
opinion. 8 U.S.C. § 1101(a)(42)(A). This petition for review
followed.1


       1
        Sandie also argues that he fears persecution based on
kinship and family ties, rather than political opinion. He makes
this argument for the first time on appeal, however, so that there

                                5
                                II.

        We have jurisdiction to review final orders of the BIA
under 8 U.S.C. § 1252. The BIA focused its review on the IJ’s
determination that Sandie failed to meet his burden of proof
with evidence corroborating his testimony. Because the IJ’s
corroboration discussion and determinations are affirmed and
partially reiterated in the BIA’s decision, we review them along
with the BIA decision. See Guan v. Gonzales, 

, 394
(3d Cir. 2005) (“Where . . . the BIA agrees with the IJ’s
conclusion that a petitioner is not credible and, without rejecting
any of the IJ’s grounds for decision, emphasizes particular
aspects of that decision, we will review both the BIA’s and IJ’s
opinions—or more precisely, we review the IJ’s decision
including the portions not explicitly discussed by the BIA.”)
(internal citations omitted); see also Korytnyuk v. Ashcroft, 

, 287 (3d Cir. 2005) (“[W]hile the ‘final order’ we
review is that of the BIA . . . [t]here are some situations in
which a court of appeals effectively reviews an IJ’s decision . .
. .”) (internal quotation marks and citation omitted); Chen v.
Ashcroft, 

, 222 (3d Cir. 2004) (“Inasmuch as the
BIA deferred to the IJ’s credibility determinations and adopted


is no record to review on this issue. As we explained in Xie v.
Ashcroft, 

(3d Cir. 2004), we are without
jurisdiction, see 28 U.S.C. § 1252(d)(1), to decide issues where
the alien has failed to exhaust all available remedies. 

n.8.

                                6
the reasons the IJ set forth, we have authority to review both
determinations.”); Xie v. Ashcroft, 

, 242 (3d Cir.
2004) (“[T]he BIA also appears to have substantially relied upon
the adverse credibility finding of the IJ. Accordingly, we have
jurisdiction to review both the BIA’s and IJ’s opinions.”). The
BIA expressly stated, however, that it would not address the IJ’s
finding that Sandie’s testimony was not credible. Consequently,
we have no credibility determination to review and we will
assume that Sandie’s testimony is credible. Kayembe v.
Ashcroft, 

, 235 (3d Cir. 2003).

          Under 8 U.S.C. § 1158(b)(1)(A), the Secretary of
Homeland Security and the Attorney General have the
discretionary power to grant asylum to a person who qualifies as
a refugee. A refugee is “any person who is . . . unable or
unwilling to return to, and is unable or unwilling to avail himself
. . . of the protection of, [his] country because of persecution or
a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion . . . .” 8 U.S.C. § 1101(a)(42)(A). Sandie contends he
qualifies for refugee status because he has a well-founded fear
of persecution on account of a political opinion. He alleges a
secret Wonde & Poro Society will kill him in Sierra Leone
because he refuses to become their Supreme Leader.

       To establish the existence of a well-founded fear of
persecution, an applicant must prove an objectively reasonable
possibility of statutorily cognizable persecution, Leia v.

                                7
Ashcroft, 

, 433 (3d Cir. 2005), and that the
applicant’s professed fear is genuine, Lusingo v. Gonzales, 

, 199 (3d Cir. 2005). That means he must demonstrate
his professed fear is objectively reasonable and not merely
subjective, and that this fear is rooted in persecution recognized
by 8 U.S.C. § 1101(a)(42)(A).

       We review factual findings, including findings of
persecution and fear of persecution, under the substantial
evidence standard. Toure v. Att’y Gen., 

, 316 (3d
Cir. 2006). Under this deferential standard, “findings of fact are
conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B); see also INS v. Elias-Zacarias, 

,
481 n.1 (1992) (“To reverse the BIA finding we must find that
the evidence not only supports that conclusion, but compels
it—and also compels the further conclusion that Elias-Zacarias
had a well-founded fear that the guerrillas would persecute him
because of that political opinion.”). “[T]he overriding
consideration here must be the extraordinarily deferential
standard mandated by Elias-Zacarias.” 

(internal quotation omitted).

      We review legal conclusions de novo. Smriko v Ashcroft,

, 282 (3d Cir. 2004).




                                8
                              III.

       Sandie cites Miah v. Ashcroft, 

(3d Cir.
2003), to argue that, as a matter of law, the BIA must review the
IJ’s credibility determination before affirming the IJ’s
conclusion that Sandie did not meet his burden of proof.
According to Sandie, the credibility determination is a necessary
predicate to the corroboration determination. He claims that a
credibility assessment controls the quality and quantity of
additional evidence needed to meet the burden of proof.

       In Miah, the BIA had expressly repudiated the IJ’s
adverse credibility determination, yet “essentially adopted the
IJ’s corroboration findings.” 

We explained:

       [T]estimony found to be incredible by the IJ was
       transformed into credible testimony by the BIA.
       However, the BIA does not explain how the
       transformation affects the degree of corroboration
       now required for Miah to sustain his burden of
       proof. In other words, now that Miah is deemed to
       be a credible asylum applicant, which of the
       events on which he bases his claim must he now
       corroborate and to what degree? Is the level of
       corroboration the same as when his testimony was
       deemed incredible?

that the BIA should have conducted an
independent analysis of corroboration because the IJ’s

                               9
corroboration ruling was informed by its adverse credibility
determination. 

not apply here. First, the BIA has not
transformed Sandie’s incredible testimony into credible
testimony. The BIA simply did not reach the IJ’s credibility
finding. Second, unlike in Miah, the IJ’s determination that
Sandie failed to meet his burden of proof with evidence
corroborating his story does not depend on her adverse
credibility finding; the IJ’s corroboration determination was
separate and independent from that finding.

        The IJ denied Sandie’s application for two alternative
reasons. On one hand, the IJ held that even if Sandie’s testimony
were deemed credible, Sandie would have to corroborate his
story and he failed to do so. On the other hand, the IJ explained,
Sandie’s testimony was not credible. Because the IJ’s
corroboration determination did not depend on her finding that
Sandie’s testimony was not credible, we hold that the BIA did
not err in reviewing the IJ’s corroboration determination without
reviewing the finding on credibility.

       Sandie further argues, however, that, because the BIA did
not review credibility, we must assume his testimony is credible,
in which case he has met his burden of proof. We agree that we
must assume Sandie’s testimony is credible because we have no
credibility determination to review from the BIA. See 

. But the assumption that his testimony is

                               10
credible does not imply that that testimony is sufficient to meet
his burden of proof. In fact, credible testimony alone is not
always sufficient to meet the burden of proof. See, e.g., Chukwu
v. Att’y Gen., 

, 192 (3d Cir. 2007) (“Where the trier
of fact determines that the applicant should provide evidence
that corroborates otherwise credible testimony, such evidence
must be provided unless the applicant does not have the
evidence and cannot reasonably obtain the evidence.”); Chen v.
Gonzales, 

, 221 (3d Cir. 2005) (“[E]ven a credible
asylum applicant may be required to supply corroborating
evidence in order to meet [her] burden of proof.”) (internal
quotation marks omitted); 

(“If the
BIA’s decision can be found to be supported by substantial
evidence, even if Kayembe’s testimony is credible, then the
absence of a finding on credibility is not significant to the
disposition of the case.”); Abdulai v. Ashcroft, 

,
554 (“We . . . hold that the BIA may sometimes require
otherwise-credible applicants to supply corroborating evidence
in order to meet their burden of proof.”). Even assuming
Sandie’s testimony was credible, he may still be required to
corroborate aspects of his testimony in order to meet his burden
of proof.2


       2
      The REAL ID Act of 2005 provides further guidance on
when corroboration is required:
       The testimony of the applicant may be sufficient
       to sustain the applicant’s burden without
       corroboration, but only if the applicant satisfies

                               11
       Moreover, an applicant for asylum must provide reliable
evidence to corroborate testimony when it is reasonable to
expect corroborating evidence and there is no satisfactory
explanation for its absence. 

. It is
reasonable to expect corroboration for testimony that is central
to an applicant’s claim and easily subject to verification.

. And “no court shall reverse a
determination made by a trier of fact with respect to availability
of corroborating evidence . . . unless the court finds . . . that a
reasonable trier of fact is compelled to conclude that such




       the trier of fact that the applicant’s testimony is
       credible, is persuasive, and refers to the specific
       facts sufficient to demonstrate that the applicant
       is a refugee. In determining whether the
       applicant has met the applicant’s burden, the trier
       of fact may weigh the credible testimony along
       with other evidence of record. Where the trier of
       fact determines that the applicant should provide
       evidence that corroborates otherwise credible
       testimony, such evidence must be provided
       unless the applicant does not have the evidence
       and cannot reasonably obtain the evidence.”
8 U.S.C. § 1158(b)(1)(B). This provision does not apply to
asylum applications filed before May 11, 2005, see Chukwu, 

at 192 n.2, and does not apply to this case.

                                12
corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4).3

        Nevertheless, before concluding that an applicant did not
meet the burden of proof for lack of corroboration, the IJ must
conduct the following three-part “Abdulai” inquiry: (1) identify
the testimony for which it is reasonable to expect the applicant
to produce corroboration; (2) examine whether the applicant
corroborated that testimony; and (3) analyze whether the
applicant has adequately explained any failure to provide
corroboration. 

(citing 

(3d Cir. 2001)). Additionally, the IJ must give the
applicant notice of what aspects of the applicant’s testimony
need corroboration. If the applicant cannot produce
corroborating evidence, the IJ must also afford the applicant an
opportunity to explain why. 

score, Sandie argues that finding insufficient
evidence to corroborate his testimony is not consistent with the
record, which includes statements from multiple witnesses and
two experts. He also argues that he was not afforded notice and
opportunity to explain the dearth of evidence about the Wonde
& Poro Society. Indeed, Sandie contends that he has a good
reason for not proffering more evidence to corroborate his


       3
        This provision, added by the REAL ID Act of 2005, was
made applicable to all cases upon enactment on May 11, 2005,
Chukwu v. Att’y Gen., 

, 192 n.3 (3d Cir. 2007), and
applies in this case.

                               13
testimony about the Wonde & Poro Society: it is a secret
society.4

       Based on our review of the record and of the IJ’s
decision, we conclude the IJ was reasonable in requiring
corroboration. The IJ was clear that she sought reliable evidence
to corroborate Sandie’s allegations about the existence, nature,
and activities of a secret Wonde & Poro Society that Sandie
alleged would kill him or force him to commit murder. She also


       4
        Sandie also argues that the IJ and BIA determined he did
not meet his burden of proof simply on the basis that they
thought the precise name of the Wonde & Poro Society was not
corroborated. This misrepresents the IJ and BIA determinations.
Sandie sought asylum in the United States alleging that he had
a well-founded fear that the Wonde & Poro Society would kill
him if he returned to Sierra Leone because he refused to become
their Supreme Leader. Consequently, the existence and nature
of the Wonde & Poro Society are central to Sandie’s claim. The
BIA and IJ referred to the Wonde & Poro Society’s name simply
to underscore the paucity of reliable evidence Sandie provided
to corroborate his testimony. They noted that Sandie’s testimony
was so poorly corroborated that uncertainty remained even as to
the name of the group. This does not mean that the IJ and the
BIA believed corroboration was lacking only as to the name of
the Wonde & Poro Society; rather, inconsistent testimony about
the name was symptomatic of the lack of corroboration of
Sandie’s testimony on the nature and the existence of the group
Sandie described.

                               14
sought evidence to corroborate Sandie’s allegations about the
origin and significance of the ritualistic back scar Sandie
claimed he received during a two-week vacation with his
grandfather in the summer of 1999, and which, according to
Sandie, marked him as a successor Supreme Leader. These
allegations are central to Sandie’s claim that he fears persecution
in Sierra Leone.

        The IJ also adequately worked through the three-part
Abdulai inquiry, put Sandie on notice of the allegations he
needed to corroborate, and afforded him an opportunity to
explain the deficiencies in corroboration. After his November
22, 2005 hearing before the IJ, but prior to the IJ’s March 24,
2006 ruling, Sandie submitted reports from Drs. Kamara and
Sanchez in an attempt to bolster his testimony about the
existence and nature of the Wonde & Poro Society, and the
ritual scar mark on his back. In submitting these reports, Sandie
demonstrated that he knew the IJ expected evidence to
corroborate his testimony on the Wonde & Poro Society and his
back scar. The time lapse between Sandie’s hearing and the IJ’s
ruling also shows that Sandie had ample opportunity to produce
such evidence or explain why he could not do so. The IJ
determined that the Kamara and Sanchez reports did not assist
Sandie in meeting his burden of proof, and no other objective
evidence in the record confirms the contentions central to
Sandie’s claims. There is thus nothing in the record that would
compel a reasonable adjudicator to reach a conclusion contrary
to the IJ’s. We conclude that the BIA committed no error in its

                                15
review of the IJ’s corroboration determination, and, accordingly,
we will deny Sandie’s petition.

                               IV.

        We now turn to Sandie’s motion to clarify. Although
Sandie’s appeal to the BIA was unsuccessful, the BIA granted
Sandie’s request to depart voluntarily from the United States
and accorded him 60 days—until April 24, 2007—to do so.
Sandie filed a petition for review of the BIA’s decision on
March 23, 2007. One month later, Sandie filed a motion to stay
removal, which we granted on August 2, 2007. The motion for
a stay of removal did not separately request a stay of voluntary
departure, however. On December 4, 2007, never having
explicitly moved to stay the running of the voluntary departure
period, Sandie filed the instant motion to clarify that his motion
to stay removal implicitly included a request to stay the 60-day
voluntary departure period.

       Sandie argues that recognizing a stay of the period for
voluntary departure based on his motion to stay removal is
appropriate because voluntary departure became an issue for
him only in September 2007. He explains that, on September 21,
2007, he married a United States citizen and that a failure to
comply with the voluntary departure order will preclude him
from obtaining adjustment of status to legal permanent resident
under 8 U.S.C. § 1255(a). See 8 U.S.C. § 1229c(d); 8 C.F.R.
1240.26(a). According to Sandie, he could not have reasonably

                               16
foreseen this emergent need to stay the period of voluntary
departure when he filed his motion to stay removal. Citing
Obale v. Att’y Gen., 

(3d Cir. 2006), Sandie points
out that we previously asserted jurisdiction to stay a voluntary
departure period where the stay was expressly requested before
the voluntary departure period had expired.

        In Obale, we also noted that the courts of appeals were
divided “on the issue of whether courts should read a petition
for a stay of removal as implicitly including a petition for stay
of voluntary departure.” 

n.10. At the time, the Sixth,
Eighth, and Ninth Circuits incorporated a request for a stay of
the voluntary departure period into requests for stay of removal,
see Macotaj v. Gonzales, 

, 467 (6th Cir. 2005); Rife
v. Ashcroft, 

, 616 (8th Cir. 2004); Desta v.
Ashcroft, 

, 745-56 (9th Cir. 2004), whereas the
First and Seventh Circuits rejected that view and required an
explicit and particularized request for a stay of voluntary
departure, see Bocova v. Gonzales, 

, 268 (1st Cir.
2005); Alimi v. Ashcroft, 

, 892–93 (7th Cir. 2004).
At the time, we expressed no view on the question. 

n.10. Since Obale, the Second Circuit has held that
an alien seeking to stay the voluntary departure period must
explicitly ask for such a stay. Iouri v. Ashcroft, 

, 85
(2d Cir. 2007) (“[W]e join the First and Seventh Circuits, both
of which have held that an alien who wishes to stay the period
for voluntary departure must explicitly ask for such a stay.”).



                               17
       The relief Sandie requests would require us to disregard
the nature of voluntary departure and the differences between
voluntary departure and removal. As to the former, the Supreme
Court recently observed that:

       Voluntary departure is an agreed-upon exchange
       of benefits, much like a settlement agreement. In
       return for anticipated benefits, including the
       possibility of readmission, an alien who requests
       voluntary departure represents that he or she “has
       the means to depart the United States and intends
       to do so” promptly. Included among the
       substantive burdens imposed upon the alien when
       selecting voluntary departure is the obligation to
       arrange for departure, and actually depart, within
       the 60-day period.

Dada v. Mukasey, 

, 2319 (2008).5 Strict limits on


       5
         Effective January 20, 2009, a new regulation provides
that “[t]he filing of a petition for review has the effect of
automatically terminating the grant of voluntary departure, and
accordingly also does not toll, stay, or extend the period allowed
for voluntary departure.” 8 C.F.R. § 1240.26(f). Although
inapplicable to Sandie’s case, this new regulation moots the
issue as of the regulation’s effective date by clarifying that the
filing of a petition for review automatically terminates the grant
of voluntary departure. The new regulation thus reinforces the
nature of voluntary departure as an “agreed-upon exchange of

                               18
the time allowed for voluntary departure confirm that the alien’s
prompt departure is a key attribute of the privilege of voluntary
departure. See, e.g., 8 C.F.R. § 1240.26(e) (“If voluntary
departure is granted at the conclusion of proceedings, the
immigration judge may grant a period not to exceed 60 days.”)
(emphasis added). Moreover,

       Authority to extend the time within which to
       depart voluntarily specified initially by an
       immigration judge or the Board is only within the
       jurisdiction of the district director, the Deputy
       Executive Associate Commissioner for Detention
       and Removal, or the Director of the Office of
       Juvenile Affairs . . . . In no event can the total
       period of time, including any extension, exceed
       120 days or 60 days as set forth in section 240B
       of the Act.

1240.26(f).

        The voluntary departure option seeks to encourage
prompt departure of the alien with various privileges accruing
to an alien who departs within the specified period, as well as
the threat of penalties that apply where the alien does not do so.


benefits,” and stresses the choice an alien must make between
the benefits of voluntary departure, with its concomitant
obligation to depart promptly, on one hand, or pursuing
litigation without agreeing to depart promptly, on the other.

                               19
If an alien fails to depart within the time allotted by the agency,
the alien may be fined up to $5,000 and may become ineligible
for benefits, such as adjustment of status, for a period of ten
years. See 8 U.S.C. § 1229c(d); 

(“Congress has specified that aliens who go back on their word
[that they will promptly depart] not only must pay a financial
penalty . . . but also lose access to some potential benefits.”).

        An order of removal, in contrast, is not an agreed-upon
exchange between the alien and the Government. It does not
implicate a choice in view of incentives and penalties like those
which are part of the voluntary departure bargain. In short, an
order of removal and a grant of voluntary departure are different
decrees implicating different equities. See, e.g., 

(concluding that “there may be cases in which an
alien is entitled to a stay of removal but not a stay of voluntary
departure”); 

(“Voluntary departure
confers substantial benefits compared with involuntary removal,
and this difference provides an incentive to depart [promptly].”).

         Moreover, the particular issues attendant to the voluntary
departure agreement warrant consideration that they would not
receive if a motion to stay voluntary departure were merely
implicit in a motion to stay removal. For this reason, an alien
seeking to stay voluntary departure must explain why such a stay
is justified notwithstanding the alien’s prior agreement to depart
voluntarily and the strict time limits for departure imposed by
regulation. See 

(“[S]ubstantive

                                20
differences between a stay of removal and an extension of the
time for voluntary departure have a procedural consequence: the
entitlement to extra time for voluntary departure must be
demonstrated rather than assumed, which implies a separate
application . . . .”). Moreover, the Government is entitled to
notice of the relief an alien seeks and the reasons why the alien
believes that relief is justified. Yet the Government would be
deprived of such notice, and the opportunity to respond, if a
motion to stay the voluntary departure period were implicit in a
motion to stay removal.

       Thus, we will not simply assume that a request for
staying removal implicitly includes a request to stay the
voluntary departure period. Having pursued voluntary departure,
an alien accorded that privilege must expressly ask for a stay of
the voluntary departure period before its expiration, or request
withdrawal of the order of voluntary departure. Further, we do
not have the authority to reinstate or extend a period of
voluntary departure. See Reynoso-Lopez v. Ashcroft, 

, 284 (3d Cir. 2004). Accordingly, we will deny Sandie’s
motion.




                               21