Toure v. Holder

• Decision Date: 08 October 2010
• Docket Number: No. 08-3478.,08-3478.
• Citation: 624 F.3d 422
• Parties: Ndeye F. TOURE, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

624 F.3d 422

Ndeye F. TOURE, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 08-3478.

United States Court of Appeals,Seventh Circuit.

Argued Sept. 9, 2009.

Decided Oct. 8, 2010.

Ndeye T. Samb, Attorney (argued), Samb & Associates, LLC, Minneapolis, MN, for Petitioner.

OIL, Attorney, Ann M. Welhaf, Attorney (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before FLAUM, EVANS, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Ndeye F. Toure, a citizen of the Republic of the Congo, maintains that she arrived in the United States on June 13, 2004 after being transported here by a smuggler. In October 2004, Toure applied for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). The immigration judge (“IJ”) denied Toure's application, in part based on an adverse credibility determination and Toure's failure to prove that she applied for asylum within a year of arriving in the United States. Toure appealed the IJ's denial to the Board of Immigration Appeals (“BIA”) and filed a motion to reopen based on ineffective assistance of counsel. The BIA affirmed the IJ's decision and also denied Toure's motion to reopen. Toure now petitions this court for review. Finding that substantial evidence supported the BIA's findings and that the BIA did not abuse its discretion in denying Toure's motion to reopen, we deny the petition for review.

I. BACKGROUND

Ndeye F. Toure is a native and citizen of the Republic of the Congo (“ROC”). Toure is a member of the Lari tribe and lived most of her life in Pointe Noire, where she shared a farmhouse with her husband, children, mother, father, and two brothers. The ROC has been plagued by civil unrest since the 1960s, and in 2002, the ROC experienced an increased number of violent outbreaks between warring political factions after a series of rigged elections. Toure states that her family fell victim to this violence in 2002, when armed men entered the family home, ransacked it, killed the family dog, and stole the family's belongings. Fortunately for Toure's family, however, they had received a warning from neighbors moments earlier that armed individuals were approaching the neighborhood, allowing them enough time to hide in the back yard and evade the intruders. Toure looked on from her hiding place as the intruders destroyed the family's home and shot the dog. She states that she did not recognize any of the intruders and could not determine what tribe or political group they were from.

Toure reports that a similar incident occurred in March 2004, when another group of unknown intruders entered Toure's residence. On this occasion, only Toure and her mother were at home. Toure's father was apparently out working in the fields, her brothers had gone out, and Toure's husband had taken the children to the store where he worked in the town market. At some point, Toure heard noises coming from outside her mother's bedroom and went outside to investigate. The next thing Toure says she remembered was waking up inside a sparsely furnished room that appeared to be a store. Toure states that she did not know exactly what happened at the family's house, but surmised that one of the intruders hit her in the back of the head, knocking her unconscious, and then brought her to this unknown location. Toure never actually saw any of her captors and does not know why she was targeted, but she believes that they were civilians who were members of an opposing political group or a different ethnic group.

Shortly after regaining consciousness, Toure realized that there were also two men in the room where she was being held. They told Toure that they had been kidnaped that day during another attack at the town market. Toure states that she asked the two men why she was being held, to which they responded that they had been asking themselves the same question. According to Toure, she did not know the two men, but they claimed to recognize her from the market where her husband worked. The two men told Toure that a fight between two ethnic groups had broken out at the market and that everyone began to flee. Toure states that the two men also told her that they believed that some of Toure's relatives had been killed in the attack. This belief was based on them having allegedly seen Toure's husband trying to flee the market with their children during the melee. Toure maintains that the two men told her that the fight began in the fields and then spread to the market, which led Toure to believe that her father had also been killed. Toure alleges that at some point during the conversation, the men told her that her family home had been ransacked by the same attackers who started the fight in the fields and market. When asked by the IJ how the two men would know anything about her house in particular being ransacked, Toure testified that she was unsure but that it was possible that they saw the home being ransacked as they were being transported to the location where they were held captive.

According to Toure, the two men next told her that they had hatched an escape plan, which involved breaking down the door to the room where they were being held. The men asked Toure if she wished to join them, which she did. Toure states that the men were able to break down the door that night, and they all ran into the forest. After walking for most of the night, they came upon a hut in the woods. Inside was an old woman, whom they begged for food and something to drink. The woman obliged, but told them that they needed to move on. They continued walking and eventually met a truck driver. Toure convinced him to take them to Gabon, a small country to the immediate west of the ROC. Toure states that she and her fellow captives stayed in Gabon for two months. She left after meeting a smuggler who transported her to the United States.

Toure claims that she arrived at John F. Kennedy International Airport on June 13, 2004. In October 2004, Toure began the affirmative application process for asylum, withholding of removal, and CAT relief. The affirmative application process allows aliens not already involved in immigration proceedings to apply for asylum within one year of arrival and to be interviewed in a non-adversarial manner by an agent from the United States Citizenship and Immigration Service. If the application is not approved, as occurred with Toure's application, the case is referred to an IJ for de novo consideration. Toure first appeared before the IJ in December 2004 and conceded removability. Alexandra Branick, Toure's attorney at the time, informed the IJ that they planned to submit proof of the date Toure had arrived in the United States in the form of “affidavits from individuals.” Branick agreed to submit the proof by December 15, 2005, and the IJ scheduled the removal hearing for January 6, 2006. The hearing was later rescheduled for March 20, 2007. ¹

At the removal hearing, Toure's testimony was rife with inconsistencies between her statements on the record and her first and second asylum applications. Among these discrepancies were the length of time she had been held captive (her first asylum application stated that she was held for weeks, but she testified on direct examination that she was only held for one day); whether she had been pregnant at the time of her capture and miscarried while being held captive (information that she revealed for the first time during cross-examination); whether her father had been shot during the 2002 incident (in the February 2006 asylum application, she stated that her father was shot by rebels, but on cross-examination she testified that he was not and that the statement on the application must have been a mistake); and whether her children and brothers were alive (on direct examination she said that she did not know where they were or if they were alive, but on her asylum application she said that they were in Senegal).

Questions about Toure's identity also arose when she presented a card she claimed was her ROC national identification card. One problem with the card was that it contained an inaccurate birth date-the card stated that Toure was born on March 26, 1965, which contradicted her testimony on direct examination that she was born on March 23, 1965 and her testimony on cross-examination that she was born on March 28, 1965. More troubling was the baffling story of how Toure obtained the card. She claimed that she received the card the previous week and that someone had dropped it off at her house, although she did not know who had done so. Toure explained that the card was sent to her from the ROC by a man she did not know, but who was willing to help her based on a reference from a mutual friend. Toure said that she had simply sent the man a picture of herself and that he obtained the identification card by going to city hall and presenting the picture, which they used to confirm Toure's identity.

One of the only assertions Toure consistently made during her testimony was that she did not know who had attacked the family or who might attempt to do so upon her return. Toure stated repeatedly that she has “enemies that I didn't know.” She was similarly unable to offer any non-conjectural reason for why the unknown attackers had targeted her family. She testified, “I didn't know the people who attacked me. I didn't know their reasons for the attack.” At one point, Toure speculated that the attacks were committed by members of a political party. Although she herself had never been interested or involved in politics, Toure theorized that her father's political activities might have been the reason for the attacks. Toure could not explain the extent of her father's involvement in politics aside from his being a “supporter” of a former president, nor could she identify the political party of which...