Sandie v. Attorney General of U.S.

• Citation: 562 F.3d 246
• Decision Date: 03 April 2009
• Docket Number: No. 07-1865.,07-1865.
• Parties: Emmanuel Tango SANDIE, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

562 F.3d 246

Emmanuel Tango SANDIE, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 07-1865.

United States Court of Appeals, Third Circuit.

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

Filed: April 3, 2009.

Alexander Maltas, Latham & Watkins, Washington, DC, Michele R. Pistone, Villanova

Law School, Clinic for Asylum Refugee & Emigrant Services, Villanova, PA, Attorneys for Petitioner.

Lindsay B. Glauner, John D. Williams, Michael P. Lindemann, Unites States Department of Justice, Office of Immigration Litigation, Theodore C. Hirt, Department of Labor, Office of Immigration, Washington, DC, Attorneys for Respondent.

Before: SMITH, COWEN, Circuit Judges and THOMPSON, District Judge.^*

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 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 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

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, 432 F.3d 391, 394 (2nd 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, 396 F.3d 272, 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, 376 F.3d 215, 222 (3d Cir.2004) ("Inasmuch as the BIA deferred to the IJ's credibility determinations and adopted the reasons the IJ set forth, we have authority to review both determinations."); Xie v. Ashcroft, 359 F.3d 239, 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, 334 F.3d 231, 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. Ashcroft, 393 F.3d 427, 433 (3d Cir.2005), and that the applicant's professed fear is genuine, Lusingo v. Gonzales, 420 F.3d 193, 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., 443 F.3d 310, 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, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (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." Chen, 376 F.3d at 226 (internal quotation omitted).

We review legal conclusions de novo. Smriko v. Ashcroft, 387 F.3d 279, 282 (3d Cir.2004).

III.

Sandie cites Miah v. Ashcroft, 346 F.3d 434 (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." Id. at 440. 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?

Id. We concluded that the BIA should have conducted an independent analysis of corroboration because the IJ's corroboration ruling was informed by its adverse credibility determination. Id.

Miah does 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...