Diallo v. Gonzales

• Decision Date: 12 May 2006
• Docket Number: No. 05-9558.,05-9558.
• Citation: 447 F.3d 1274
• Parties: Djiby DIALLO a.k.a. Abdoul Diallo, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

447 F.3d 1274

Djiby DIALLO a.k.a. Abdoul Diallo, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.

No. 05-9558.

United States Court of Appeals, Tenth Circuit.

May 12, 2006.

COPYRIGHT MATERIAL OMITTED

Submitted on the briefs:^* Sharon A. Healey, University of Denver International Human Rights Advocacy Center Asylum Project, Denver, Colorado, for Petitioner.

Peter D. Keisler, Assistant Attorney General, Mark C. Walters, Assistant Director, Melissa Neiman-Kelting, Office of Immigration Litigation, Civil Division, Washington, D.C., for Respondent.

Before TYMKOVICH, McKAY, and BALDOCK, Circuit Judges.

McKAY, Circuit Judge.

Petitioner, Djiby Diallo (a.k.a. Abdoul Diallo), is a native and citizen of Mauritania, a country in northwest Africa. Diallo is a black Fulani, which is a subset of the largest non-Moor ethnic group in Mauritania, the Halpulaar. The government of Mauritania is dominated by white Moors of Arab/Berber descent. Between 1989 and 1990, ethnic conflict in the country culminated in the government's expulsion of approximately 75,000 blacks. Most of those expelled were forced into neighboring Senegal. International human rights organizations charge that the government sought, through the mass expulsion, to rid Mauritania of its black population and to confiscate the vacant property left behind.

Diallo claims that he was a victim of that mass expulsion. Based on his story of persecution, the Board of Immigration Appeals ("BIA") granted Diallo asylum in the United States in 1997. However, his asylum status was terminated in 2004 by an immigration judge ("IJ") who concluded that Diallo had omitted material information on his asylum application. The IJ also denied a renewed asylum application that Diallo submitted, disclosing the previously omitted information. Diallo appealed the IJ's decision unsuccessfully to the BIA and now seeks review of the BIA's decision. We deny the petition for review.

I. Background

As culled from his most recent asylum application and supporting testimony, Diallo's story of persecution and escape is as follows. He was born in 1964 in a Mauritanian village in the Senegal River Valley. He was still living there with his family when one day in 1989 he returned to the village from tending to his livestock to discover three military trucks outside his house. Soldiers arrested him along with others in his village, confiscated his national identification card, and took him to a military prison camp. Although, the soldiers were black, they were not Fulani. Diallo believes that the soldiers were black Moors working for the Mauritanian government. In the prison camp, he was forced to do hard labor every day and was subjected to frequent beatings. During one beating, he lost two teeth after a soldier struck him with the back of his fist.

After being in the prison camp for approximately one month, he was rounded up with other prisoners and taken by truck to the Senegal River. Soldiers ordered him to cross the river into Senegal and never return, which he did. On the Senegal side of the river he was greeted by red cross workers who took him to a refugee camp in Thilogne. At the camp he found his father, siblings, and his father's second wife but not his own mother. When he asked his father what happened to his mother, his father refused to talk about it. He never saw his mother again and assumed that she had been killed. After living in the camp for two years, he made his way to the coastal city of Dakar and from there to the United States as a stowaway on a ship.

He arrived in Miami sometime in 1992 and immediately went to New York City where he located a Fulani community. In New York, he purchased a counterfeit employment authorization document ("EAD"), which bore his picture but not his true name. The name on the EAD was Abdoul Diallo, a man he claims he has never met. In 1995, Diallo moved to Colorado where he used the EAD to work and obtain a drivers license and social security card.

In 1996, he applied for asylum using his true name, Djiby Diallo. He did not disclose on the application that he had an EAD under the name Abdoul Diallo. The IJ denied his application because he did not believe Diallo's story of persecution. However, Diallo successfully appealed the IJ's decision to the BIA and was granted asylum on September 26, 1997. Thereafter, he obtained work authorization in his own name and ceased using the alias. He also obtained refugee travel documents under his own name, which he used to travel to Senegal and Italy. His last entry into the United States was in 2002.

II. The Agency Proceedings

On May 28, 2004, the government issued a Notice to Appear charging Diallo with being removable under section 237(a)(1)(A) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(1)(A). The government alleged that Diallo procured his asylum status through fraud because he did not disclose his use of an alias on his asylum application. Diallo was also charged with filing an unsuccessful asylum application in 1994 under the name Abdoul Diallo. In the removal proceedings, Diallo admitted to using the false EAD but denied that he had ever applied for asylum under the name Abdoul Diallo. On August 30, 2004, he submitted what he titled an Amended Asylum Application, disclosing that he had used the name Abdoul Diallo. At the same time, he applied for restriction on removal and adjustment of status.

The IJ conducted a multi-session hearing from October to December 2004 and took evidence concerning both the removal charges and Diallo's renewed requests for asylum, restriction on removal, and adjustment of status. He issued a written decision on December 30, 2004, sustaining the government's removal charges, terminating Diallo's prior grant of asylum, and denying the pending applications.¹ In his decision, the IJ sua sponte raised the issue of changed country conditions. He held that conditions in Mauritania had improved since Diallo's arrest in 1989, and that Diallo therefore no longer had a well-founded fear of persecution. Based in part on this finding, the IJ terminated Diallo's prior grant of asylum. He also held that termination was proper based on Diallo's fraudulent withholding of his alias on his 1996 asylum application. As to the 2004 application, the IJ again found that Diallo was ineligible for asylum due to changed country conditions, but he also determined that the application was untimely because it was not filed within one year of Diallo's last entry into the United States. Finally, the IJ found Diallo's testimony not credible due to inconsistencies in his story. He cited the adverse credibility finding as an additional reason to deny Diallo's asylum application.

On June 9, 2005, the BIA issued a three-page opinion affirming the IJ's decision and adopting most, but not all, of the IJ's reasoning. The BIA held that Diallo's failure to disclose his use of an alias on his 1996 asylum application warranted termination of his asylum status. The BIA also held that Diallo's August 30, 2004, asylum application was not an amendment, but an untimely new filing barred by statute. Finally, the BIA deferred to the IJ's credibility findings and concluded that Diallo had failed to establish eligibility for asylum. The BIA did not address the IJ's reasoning with respect to changed country conditions.

Diallo challenges both the termination of his prior grant of asylum and the denial of his 2004 application. He argues that there was insufficient evidence to support the IJ's finding that his asylum status was procured by fraud. He also argues that the IJ violated his due process rights by sua sponte considering changed country conditions as a basis for termination, and he challenges the IJ's specific finding that he is no longer a refugee due to improved conditions in Mauritania. With respect to his new application, Diallo argues that the IJ's timeliness determination was error and that his adverse credibility findings were not supported by the evidence.

III. Discussion

A. Principles of Judicial Review

Because this petition follows reasoned opinions from both the IJ and BIA, we will first delineate the scope of our judicial review. As we recently reiterated, "[w]e have general jurisdiction to review only a final order of removal, 8 U.S.C. § 1252(a)(1), and there is no final order until the BIA acts." Uanreroro v. Gonzales, 443 F.3d 1197, 1203 (10th Cir.2006) (quotations omitted). We held in Uanreroro that when the BIA affirms an IJ decision with a brief order pursuant to 8 C.F.R. § 1003.1(e)(5), "in deference to the agency's own procedures, we will not affirm on grounds raised in the IJ decision unless they are relied upon by the BIA in its affirmance." Uanreroro, 443 F.3d at 1204. We clarified that resort to the IJ's decision is appropriate in situations where the BIA incorporates the IJ's rationale or a summary of its reasoning. Id. However, we were careful to note that "[a]s long as the BIA decision contains a discernible substantive discussion . . . our review extends no further, unless it explicitly incorporates or references an expanded version of the same reasoning below." Id.

The BIA decision in this case clearly was issued pursuant to § 1003.1(e)(5), as it does not contain the requisite language for an affirmance without opinion, see § 1003.1(e)(4)(ii), and was drafted by a single Board member as opposed to a three-member panel as contemplated in § 1003.1(e)(6). See Uanreroro, 443 F.3d at 1204; Cruz-Funez v. Gonzales, 406 F.3d 1187, 1190 (10th Cir.2005). Therefore, we review the BIA's decision as the final agency determination and limit our review to issues specifically addressed therein.² We will resort to the IJ's reasoning as necessary pursuant to the guidelines set forth in Uanreroro.

In reviewing a decision of the BIA, [w]e consider any legal questions de novo, and we review the agency's findings of fact under the substantial...