Wane v. Attorney General of United States, 041712 FED3, 07-2489

Docket Nº:07-2489, 07-4212, 08-1463
Opinion Judge:HARDIMAN, Circuit Judge.
Judge Panel:Before: McKEE, Chief Judge and HARDIMAN, Circuit Judges and JONES, II, District Judge.
Case Date:April 17, 2012
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit




Nos. 07-2489, 07-4212, 08-1463

United States Court of Appeals, Third Circuit

April 17, 2012


          Submitted Under Third Circuit LAR 34.1(a) April 13, 2012

         On Petition for Review from an Order of the Board of Immigration Appeals (Board No. A98-582-862) Immigration Judge: Rosalind K. Malloy

          Before: McKEE, Chief Judge and HARDIMAN, Circuit Judges and JONES, II, [*]District Judge.


          HARDIMAN, Circuit Judge.

         Seydou Nourou Wane petitions for review of the Board of Immigration Appeal's final order of removal, denial of his motion to reopen proceedings, and denial of his motion for reconsideration. For the reasons that follow, we will deny his petitions.


         Because we write for the parties, who are well acquainted with the case, we recount only the essential facts and procedural history.

         Wane is a Mauritanian citizen who entered the United States in May 2003 on a student visa. After Wane stopped attending school in August 2003, the Government charged him as removable for failing to maintain status. Wane ultimately conceded removability but applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Wane's application alleged persecution in Mauritania on the basis of his race, political opinion, and membership in a political organization known as the Young Blacks.

         The immigration judge (IJ) ruled that Wane's asylum application was untimely because he did not file it within a reasonable time after falling out of status. The IJ also denied Wane's applications for withholding of removal and CAT protection, finding that Wane was not likely to be persecuted or tortured if he returned to Mauritania. In doing so, the IJ explained that critical parts of Wane's testimony were uncorroborated and not credible.

         The Board of Immigration Appeals (BIA) affirmed, agreeing that Wane's asylum application was untimely. With respect to the remaining claims, the BIA concluded that the IJ's credibility finding "appear[ed] somewhat unclear, as [the IJ] observed that the respondent testified consistently with his asylum application and affidavit, yet note[d] several significant contradictions and implausibilities." Nevertheless, the BIA reasoned that it did not have to "definitively decide this credibility issue, since even if [Wane was] credible, his claim [would fail] based on a failure of a burden of proof, for the reasons set forth by the [IJ] in [her] decision, particularly in light of the almost complete lack of reasonably available corroborating evidence in this case." The BIA also noted that Wane had presented no arguments that would convince it to reverse the IJ's determination regarding CAT protection. Finally, the BIA found "no merit to [Wane's] allegation of bias by the [IJ] because . . . [Wane's] arguments essentially amount[ed] to a disagreement with the way in which the [IJ] weighed and evaluated the evidence before [her]." Wane filed a timely petition for review.

         In May 2007, approximately one month after the BIA's ruling, Wane married a United States citizen who filed an I-130 visa petition on his behalf. In June 2007, Wane filed a motion to reopen his proceedings, requesting that his case be remanded pending approval of his I-130 petition. The BIA denied Wane's motion, and he filed a timely petition for review. Wane subsequently sought reconsideration of the BIA's decision in a "request to accept evidence by certification or sua sponte." The BIA denied Wane's motion on the basis that he had shown no factual or legal defect in its earlier decision denying his motion to reopen. Moreover, to the extent Wane sought to reopen yet again by presenting new evidence, the BIA denied his motion as both time- and number-barred. Finally, the BIA declined to reopen proceedings sua sponte. Wane filed a third timely petition for review, and we consolidated his three petitions.


         We consider only the BIA's rulings, but we review the IJ's reasoning to the extent it was adopted by the BIA. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). We review legal conclusions de novo, Huaw Wu v. Att'y Gen. of U.S., 571 F.3d 314, 317 (3d Cir. 2009), but we review factual findings, including conclusions regarding past persecution, under the "substantial evidence" standard, Chavarria, 446 F.3d at 515,...

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