Tarrawally v. Ashcroft

• Citation: 338 F.3d 180
• Decision Date: 29 July 2003
• Docket Number: No. 02-2951.,02-2951.
• Parties: Sulaiman TARRAWALLY, Petitioner v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 180

338 F.3d 180

Sulaiman TARRAWALLY, Petitioner v. John ASHCROFT, Attorney General of the United States, Respondent.

No. 02-2951.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) July 10, 2003.

Filed July 29, 2003.

Steven A. Morley, Bagia & Morley, Philadelphia, PA, for Petitioner.

Robert D. McCallum, Jr., Assistant Attorney General, Civil Division, Terri J. Scadron, Assistant Director, Efthimia S. Pilitsis, Michael P. Lindemann, John D. Williams, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for Respondent.

Before NYGAARD, SMITH, Circuit Judges and IRENAS,^* District Judge.

OPINION OF THE COURT

SMITH, Circuit Judge.

I. INTRODUCTION

Petitioner Sulaiman Tarawally¹ appeals the denial of his application for asylum and for withholding of removal under the Immigration and Nationality Act, and his request for relief under the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment ("Convention Against Torture" or "Convention"). We now add our voice to the chorus of other circuits which have held that a court of appeals lacks jurisdiction to review an asylum petition that an Immigration Judge ("IJ") or Board of Immigration Appeals ("BIA") deems untimely. In reaching the merits of the petitioner's requests for withholding of removal and relief under the Convention Against Torture, we conclude that the Immigration Judge's finding that Tarawally was not likely to be persecuted or tortured was supported by substantial evidence.

II. FACTS

Sulaiman Tarawally is a citizen of Sierra Leone who entered the United States in January 1998 as a visitor for pleasure with authorization to remain until February 10, 1998. Tarawally filed an application for Temporary Protected Status, which was eventually denied. Sometime after October 12, 1999, he filed an application for asylum, withholding of removal and relief under the Convention Against Torture.

During the asylum hearing that followed, Tarawally testified to his personal history in Sierra Leone. Tarawally's father was chairman of the All People's Congress ("APC") for the Kono district of Sierra Leone. The APC was the ruling party until a 1992 coup, during which the National Provisional Ruling Council, also known as the Armed Forces Revolutionary Council ("AFRC"), took power. In early 1992, the AFRC arrested Tarawally's father for his political activities and detained him for about a month. At that time, Tarawally was living in the town of Bamakonta, some nine to twelve miles away from his family. Sometime after his father's detention, in March of 1992, Tarawally was visiting his family's home and awoke one night to the sound of gunfire. When he discovered that the rest of his family was missing, he immediately left Kono. He spent three days walking to the town of Bo, Sierra Leone, where he lived and attended secondary school from 1992 to 1993.²

In 1993, the school was closed due to civil unrest, so Tarawally traveled first to Guinea for three months, then to Gambia for a year, returning to Sierra Leone in 1994. Although Tarawally's application for admission to Injala University in Bo was accepted, he did not attend because of financial constraints.

Tarawally regularly traveled back and forth between Sierra Leone and Gambia from 1994 until 1996. Sometime in 1996 or 1997, Tarawally was sleeping in a school in Gambia when other Sierra Leone citizens, also in Gambia, threw a Molotov cocktail into the building. When Tarawally attended a soccer game in Gambia, he was physically attacked by the same individuals who had thrown the Molotov cocktail.³

Between 1993 and 1997, Tarawally advocated in support of the APC and assisted new members to register to vote. He also was active in the Student Mobilization For Democracy ("SMFD"), and the Youth Defense Army vigilante group in Sierra Leone. All of these groups opposed the Revolutionary United Front ("RUF") and AFRC.

In 1996, Tarawally discovered that his family was living in the town of Makeni in Sierra Leone and visited them for a week. He then went to Freetown, Sierra Leone, where he lived for a year. Around this time, he became uneasy about his participation in the SMFD and therefore decreased his involvement in its activities.

Although the Sierra Leone People's Party had been elected to power in 1996, a coup d'etat occurred in May of 1997, and the RUF, with support from the AFRC, overthrew the government.⁴ After the coup, the AFRC and the SMFD met in Freetown, and the AFRC threatened Tarawally and other SMFD members with amputation of their limbs if they did not cooperate and support the AFRC regime. Three days later, Tarawally was arrested⁵ in Freetown and then taken to the Pademba detention facility where he was held for several weeks and beaten. Around the same time, on June 18, 1997, Tarawally's father and sister were killed for their political activities and their opposition to the RUF.⁶ Tarawally was able to escape from prison with the assistance of a former school friend who was working there. Tarawally fled through the jungle to Guinea, a journey of approximately 75 miles, which he said he made in two days. He then went from Guinea to Gambia. He subsequently fled to the United States.

III. PROCEDURAL POSTURE

Following a removal hearing, the IJ issued an opinion in which he determined that because Tarawally did not file his asylum application within one year of his entry into the United States, his request for asylum should not be considered. The IJ then denied Tarawally's application for withholding of removal and relief under the Convention Against Torture, finding that Tarawally was not credible because of: 1) his initial uncertainty as to how long his father was detained following arrest; 2) his lack of knowledge regarding how his father was treated in prison; 3) his initial uncertainty as to what night he heard gunfire and fled Kono; 4) the implausibility that he would walk 97 kilometers from Kono to Bo and "instead of trying to locate his missing family, decide[] to enroll in a school in that city;" 5) the inconsistency between his 1998 affidavit, in which he stated that he started a new chapter of the SMFD in Bo in 1997 and that he was chairman of the chapter at the school, and his later testimony that he stopped actively participating in the SMFD organization in 1996, and that he never attended the University; 6) the conflicting dates he provided of his arrest, both early 1997 and June of 1997; 7) contradictions between petitioner's affidavit and his testimony as to the dates he attended high school; 8) contradictions as to whether he attended the University and whether he applied in 1993 or in 1997 after his father's death; 9) contradictions between his affidavit and his testimony as to whether threats of amputation occurred at the meeting between the AFRC and SMFD or three days later; 10) his failure to testify, consistent with his affidavit, that he was cut with razor blades and beaten senseless when arrested; 11) the inconsistency between his statement that he left prison in June 1997 and his affidavit that he arrived in Guinea in September, and that the trip took him only two days; 12) the implausibility that, between 1993 and 1997, he would have traveled back and forth between Sierra Leone and Gambia (a three to four day trip each way) with regularity to participate in student groups; and 13) contradictions as to whether he ever returned to Bo after 1993.

The BIA affirmed without opinion pursuant to 8 C.F.R. § 3.1(a)(7).⁷

IV. JURISDICTION

The IJ had subject matter jurisdiction under Sections 208(a) and 241(b)(3) of the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1158, 1231(b). The BIA exercised jurisdiction pursuant to 8 C.F.R. §§ 3.1 and 240.15. We have jurisdiction under Section 242(a) of the INA, 8 U.S.C. § 1252(a).

V. STANDARD OF REVIEW

Although we normally review only the decisions of the BIA, where the BIA summarily affirms the IJ's decision, we "must then review the decision of the IJ." Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002).⁸

We review de novo the issue of whether we have jurisdiction to determine what constitutes extraordinary circumstances for a late filed asylum petition. See Valansi v. Ashcroft, 278 F.3d 203, 207 (3d Cir.2002).

The IJ's adverse credibility determination and findings of fact with respect to his withholding and Convention claims must be reviewed under the substantial evidence standard. We will not disturb the IJ's credibility determination and findings of fact if they are "supported by reasonable, substantial and probative evidence on the record considered as a whole." Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir.1998) (internal quotation marks and citation omitted). Although we generally defer to the IJ's inferences, "deference is not due where findings and conclusions are based on inferences or presumptions that are not reasonably grounded in the record, viewed as a whole." Id. at 162 (internal quotation marks and citation omitted).

VI. LEGAL ANALYSIS

A. Eligibility for Asylum

An alien must prove by clear and convincing evidence that he filed his asylum application within one year of arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). However, if the alien can establish that there are "extraordinary circumstances relating to the delay in filing the application," failure to file the application within the one year period may be excused. 8 U.S.C. § 1158(a)(2)(D).

The relevant regulation lists as one possible extraordinary circumstance that "the applicant maintained Temporary Protected Status ... until a reasonable period before the filing of the asylum application." 8 C.F.R. § 208.4(a)(5)(iv). Tarawally argues that although he submitted his application for asylum more than a year after his arrival and although he was never granted Temporary Protected Status, the application for such...