Tandia v. Gonzales

• Decision Date: 07 February 2006
• Docket Number: Docket No. 03-4942.
• Citation: 437 F.3d 245
• Parties: Elhadj Amadou TANDIA, Petitioner, v. Alberto GONZALES, Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

Page 245

437 F.3d 245

Elhadj Amadou TANDIA, Petitioner, v. Alberto GONZALES, Attorney General,^* Respondent.

Docket No. 03-4942.

United States Court of Appeals, Second Circuit.

Argued: January 30, 2006.

Decided: February 7, 2006.

Alexander Kaplan (Steven C. Krane, on the brief), Proskauer Rose LLP, New York, NY, for Petitioner.

Barbara S. Sale, Assistant United States Attorney (Rod J. Rosenstein, United States Attorney for the District of Maryland, William P. Jauquet, Law Clerk, on the brief), United States Attorney's Office for the District of Maryland, Baltimore, MD, for Respondent.

Before: WINTER, CABRANES, and B.D. PARKER, Circuit Judges.

PER CURIAM.

We consider here the proper standards for reviewing a decision by an immigration judge ("IJ") denying asylum to an otherwise qualified applicant on the ground that the applicant has found a "safe haven" in a third country before applying for asylum in the United States. Such authority of the Attorney General was conferred by statute, and exercised for some years under two separate regulations (each now repealed) promulgated by the Attorney General. See 8 U.S.C. §§ 1158(b)(2)(C), 1158(d)(5)(B).¹ The regulation more recently in force, 8 C.F.R. § 208.13(d), provided that "an asylum application may be denied in the discretion of the Attorney General if the alien can be removed to a third country which has offered resettlement and in which the alien would not face harm or persecution." See 62 Fed.Reg. 10312, 10342 (Mar. 6, 1997) (announcing regulation); see also Asylum Procedures, 65 Fed.Reg. 76121, 76126 (Dec. 6, 2000) (repealing regulation).² According to the Attorney General's statements in the Federal Register, the former 8 C.F.R. § 208.13(d) was promulgated under the authority of 8 U.S.C. §§ 1158(b)(2)(C) and 1158(d)(5)(B), neither of which refer to the presence of a bilateral agreement with a third country.³ See 65 Fed.Reg. at 76126. Accordingly, when evaluating an IJ's exercise of discretion under the former 8 C.F.R. § 208.13(d), we need not consider whether the "third country which has offered resettlement" is party to a treaty with the United States concerning refugees.⁴

I.

Petitioner Elhadj Amadou Tandia seeks review of an April 18, 2003 order of the BIA affirming without opinion a January 8, 2001 decision of IJ Gabriel C. Videla denying Tandia's requests for asylum and withholding of deportation under the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. § 1101 et seq.⁵

According to Tandia's affidavit in support of his application and his testimony before the IJ, Tandia was born in Senegal in 1958 and later moved to Mauritania, becoming a national of Mauritania in 1974 or 1975. Asserting that he is a member of a prominent African-Mauritanian family with connections to the country's previous government, Tandia claimed that he received advanced academic degrees in France and then worked at a bank in Mauritania as a computer technician. Tandia asserted that he suffered persecution on the basis of race at the hands of the "white Moor" regime governing Mauritania.

Specifically, Tandia recounted being interrogated by police who ordered him "to report to them on African-Mauritanian opposition activities" on a daily basis. He alleged also that he was arbitrarily arrested and detained for "a day and a night" with no explanation and that he was forced to promote the ruling regime while "distribut[ing] food and other necessaries to [his] community." Tandia maintains that although he reported to the police station and distributed goods among members of his ethnic group as ordered, he did not cooperate fully, refusing to share information about dissidents with the police or to speak well of the government to others. Fearing government reprisals, he fled to France, where he visited his sister and acquired more money for his journey. After about a month, he traveled to the United States. He stated that he fears future persecution should he return to Mauritania, having heard from family and friends that authorities there continue to search for him. As another basis for his fear, he claimed to participate in a United States-based group, the African Liberation Forces of Mauritania (abbreviated "FLAM" from the French), that opposes the current government.

The IJ stated in her decision that the "white Moors" largely in charge of Mauritania⁶ have persecuted some of their "black African" countrymen, some of whom were "deported solely because they were black Africans." Nonetheless, the IJ found that Tandia failed to establish either that he personally was persecuted in Mauritania or that he had a well-founded fear of persecution upon return. She based her conclusion on a finding that Tandia's testimony was not credible. The primary reasons the IJ articulated in support of her adverse credibility finding were (1) that Tandia could not remember whether certain statements he made before the IJ contradicted statements he made at his asylum interview and (2) that he failed to offer certain evidence to bolster his claims, such as offering his sister as a witness or documentation of his activities with FLAM in the United States. The IJ added that, even if Tandia's testimony were credible, she would exercise her discretion to deny him asylum because (1) he committed some low-level crimes⁷ while in the United States and (2) he found a "safe haven" in France before arriving the United States.

II.

When the BIA affirms an IJ's decision without opinion pursuant to the "streamlining" provision codified at 8 C.F.R. § 1003.1(e)(4), we review the IJ's decision as the final agency decision. See, e.g., Damko v. INS, 430 F.3d 626, 628 (2d Cir.2005).

We examine first the IJ's finding that Tandia found a "safe haven" in France. The IJ's decision is dated January 8, 2001, three days after the repeal of the regulation giving IJs discretion to deny asylum to applicants staying in a "safe third country" before arrival in the United States. See Asylum Procedures, 65 Fed.Reg. 76121, 76126 (Dec. 6, 2000) (listing effective date of January 5, 2001). We now hold explicitly, as in Dhoumo we did implicitly, that an IJ finding concerning a "safe third country" or "safe haven" cannot rely upon 8 C.F.R. § 208.13(d) if contained in a decision dated on or after January 5, 2001.⁸ In such cases, sojourns in third countries will be evaluated under the standards governing our review of an IJ decision based upon a finding that an applicant was "firmly resettled" in a third country before arriving in the United States.⁹ See 8 C.F.R. § 208.15 (defining aliens who have "firmly resettled"); 8 U.S.C. § 1158(b)(2)(a)(vii) (barring such aliens from receiving asylum). In Sall v. Gonzales, ___ F.3d ___, 2006 WL 258281 (2d Cir.2006), which was argued in tandem with this case, we set forth the standards governing our review of IJ decisions based upon findings of firm resettlement.

Tandia's stay in France would therefore be relevant only to a finding that he had "firmly resettled" in a third country before arriving in the United States. Because the IJ found explicitly that Tandia was not firmly resettled, the portion of the IJ's decision relying on Tandia's stay in a third country before arriving in the United States cannot support a denial of Tandia's asylum claim.

III.

We now turn to the merits of Tandia's asylum claim. We review the factual findings of an IJ for "substantial evidence," see, e.g., Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir.2005), and the administrative "findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." Borovikova v. DOJ, 435 F.3d 151, 2006 WL 120148, at *1 (2d Cir. Jan.18, 2006) (quoting 8 U.S.C. § 1252(b)(4)(B)). When, as in this case, an IJ denies asylum upon an adverse credibility finding, our review is especially deferential. See Zhou Yun Zhang, 386 F.3d 66, 74 (2d Cir. 2004).¹⁰ Nonetheless, we require that an IJ's reasons for such a finding be "specific" and "cogent," Majidi, 430 F.3d at 80 (quoting Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003)), and that a "legitimate nexus" exist between these reasons and a "petitioner's claim of persecution," Xu Duan Dong v. Ashcroft, 406 F.3d 110, 112 (2d Cir.2005) (quoting Secaida-Rosales, 331 F.3d at 307).

We conclude that the evidence relied upon by the IJ to find that Tandia did not suffer or fear persecution does not constitute "substantial evidence." The asylum interview about which the IJ questioned Tandia closely was apparently not recorded anywhere in the record before the IJ, nor is it available to us on review. Based on our review of Tandia's responses to the IJ's questions about his asylum interview, we conclude that the IJ's reliance upon that testimony to find Tandia not credible involved impermissible speculation and conjecture. Specifically, the IJ stated that Tandia's testimony to the effect that he could not remember whether he had made certain statements at his asylum interview implied that the potential statements might in fact be true.¹¹ From our review of the record in this case, we cannot conclude that Tandia's inability to remember whether he made certain statements to the asylum officer—during a conversation of which there is apparently no available record—allows an inference that he made such statements and that, because such statements would undercut his asylum claim, Tandia's testimony before the IJ lacked credibility.

The IJ devoted a significant portion of her discussion of the merits of Tandia's asylum claim to a review of Tandia's inability to recall portions of his asylum interview. Having found that evidence unpersuasive, we cannot state with confidence that the IJ would deny Tandia's application were we to remand the cause to the BIA.¹² See Xiao Ji Chen v. DOJ, 434 F.3d 144, 148 (2d Cir.2006) (denying petition for review after concluding upon substantial evidence review that "despite errors—considered in the context of the...