Dedji v. Mukasey

• Decision Date: 08 May 2008
• Docket Number: Docket No. 05-5414-ag.
• Citation: 525 F.3d 187
• Parties: Koffi Sognide DEDJI, Petitioner, v. Michael B. MUKASEY, United States Attorney General<SMALL><SUP>*</SUP></SMALL>, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

525 F.3d 187 Koffi Sognide DEDJI, Petitioner,
v.
Michael B. MUKASEY, United States Attorney General^*, Respondent. Docket No. 05-5414-ag. United States Court of Appeals, Second Circuit. Argued: February 25, 2008. Decided: May 8, 2008.

[525 F.3d 188]

William H. Berger, Berger & Berger, Buffalo, NY, for Petitioner.

Gail Y. Mitchell, Assistant United States Attorney (Terrance P. Flynn, United States Attorney, of Counsel), Office of the United States Attorney for the Western District of New York, Buffalo, NY, for Respondent.

Before: CABRANES, POOLER, and SACK, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

Petitioner Koffi Sognide Dedji, a native and citizen of the People's Republic of Togo, requests review of an order of the Board of Immigration Appeals ("BIA") affirming without opinion the decision of the immigration judge ("IJ"). In re Dedji, A95 418 869 (B.I.A. Sept. 12, 2005), aff'g A95 418 869 (Imm. Ct. Buffalo May 13, 2005). Dedji concedes that he is removable but contends that he is eligible for asylum, pursuant to 8 U.S.C. §§ 1101(a)(42) (defining "refugee") and 1158(b) (giving Attorney General discretion to grant certain refugees asylum); withholding of removal, pursuant to 8 U.S.C. § 1231(b); relief under the Convention Against Torture ("CAT"), Dec. 10, 1984, 1465 U.N.T.S. 85; see 8 C.F.R. § 208.18; or alternatively, voluntary departure. He maintains that the IJ erred in finding that he was not credible and declining to consider, on grounds of timeliness, the additional documentation Dedji submitted in support of his claims. We conclude that an IJ's broad discretion to adopt and enforce deadlines includes the authority to deviate from the deadlines set out in the local rules where a petitioner has demonstrated good cause for the delay and substantial prejudice would likely result from the enforcement of the deadlines.

BACKGROUND

Dedji entered the United States on October 20, 2001 on a non-immigrant visa and was authorized to stay in the United States for three months. On May 9, 2002, the Immigration and Naturalization Service

525 F.3d 189

served Dedji with a Notice to Appear that charged him with being subject to removal pursuant to 8 U.S.C. § 1227(a)(1)(B)¹ for having remained in the United States beyond the expiration of the three-month period.

A.

Dedji's claims for relief are based on his allegations that he was persecuted by the Government of Togo on the basis of his political beliefs and activities. In his testimony before the IJ, he described the following relevant events.

In 1990, while he was still in high school, he was arrested, detained, and beaten after participating in a student protest against the government. Dedji claims that he was released only after promising not to participate in any further protests. He alleges that, as a result of the beatings, he suffered permanent damage to his eyes as well as ongoing headaches.

In 1997, while he was in law school, he was detained and severely mistreated based on his participation in meetings and demonstrations organized by the Union for the Force of Change ("UFC"), an opposition political party. After his release, he was treated for headaches and other injuries. Dedji further testified that shortly after his arrest one of the other students with whom he was arrested was found dead. In response to this news, he contends, he left Togo to stay in Ghana for two months, and thereafter returned to Togo to finish his studies at law school. He maintains that after he graduated from law school he was offered a job with the government but turned it down as a matter of principle.

Dedji obtained employment with a private company involved in radio and telecommunications, in connection with which he obtained a temporary visa to enter the United States. He claims that in September 2001, before he left Togo, he made a speech on his company's radio station that included negative comments about the government's failure to adequately fund youth sports. He asserts that the Minister of Communications gave a "threatening" speech in response and that employees of the radio station were arrested a few days later. After the arrests of the radio station employees, he maintains, he narrowly escaped arrest.

After this incident, Dedji asserts, he went to Ghana and returned to Togo after a few weeks in order to prepare for his business trip to the United States. He claims that, while he was in Ghana, his house was ransacked, and "officers and military people" hit his wife and kidnapped his ten-month-old son. He arrived in the United States on October 20, 2001. He also alleges that since he arrived in the United States his family in Togo has been continually harassed. For instance, he alleges that his father was arrested because of Dedji's own work with an organization called Transparency International. According to Dedji, his father was told that Togo officials intended to issue an international warrant for Dedji's arrest because of Dedji's activities with Transparency International.

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B.

In advance of a May 13, 2005 hearing before the IJ, Dedji submitted various documents in support of his application for relief. The documents included a purported notice of judicial inquiry into Dedji's activities; a copy of an arrest warrant; a letter from the UFC attesting to Dedji's involvement in the party; Dedji's registration as a representative of the UFC; copies of purported doctors' reports specifically mentioning that he had been shot, as well as imprisoned, and prescribing hospitalization; letters from his wife and his father recounting visits they received from the authorities regarding Dedji's whereabouts; a copy of his law diploma; an attestation of his employment signed by the General Director of his company; and various country reports on Togo. The documents were accompanied by a letter from Dedji's counsel acknowledging that, under the applicable local rules, the submissions were almost one week late.² The letter explained that Dedji had timely provided the documents to counsel and that the delay in submitting the documents was attributable to a fire in the attorney's office.

At the hearing, Dedji testified in support of his claims. In the course of his testimony, Dedji's counsel moved to admit the documents. The IJ acknowledged receiving the documents but refused to admit them on the basis that the submissions were untimely under the local rules, relying on Somlyo v. J. Lu-Rob Enterprises, Inc., 932 F.2d 1043, 1048 (2d Cir.1991) (observing, inter alia, that "[t]he boundaries of the Local Rules are drawn by federal statutory and constitutional law, not by whether the Local Rules impact on the claims and rights of the litigants").

At the conclusion of the hearing, the IJ determined that Dedji had not provided evidence of any events that rose to the level of persecution. The IJ concluded that Dedji had not established that he had a well-founded fear of persecution because...