                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-19-2008

Kalou Drame v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1176




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-1176
                                      ___________

                                    KALOU DRAME,
                                                        Appellant

                                             v.

                  ATTORNEY GENERAL OF THE UNITED STATES


                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                              (Agency No. A79 728 769)
                 Immigration Judge: Honorable Donald Vincent Ferlise


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 17, 2008

           Before: SLOVITER, STAPLETON AND COWEN, Circuit Judges

                           (Opinion filed: November 19, 2008)
                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

       Kalou Drame, a native and citizen of Mali, was charged with removability

pursuant to Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(i) [8 U.S.C.

§ 1182(a)(6)(A)(i)], as an alien present in the United States without admission or parole.
Drame conceded the charge of removability but sought withholding of removal and

protection under the United Nations Convention Against Torture (“CAT”). In support of

his claim for relief, Drame testified that he and his family were farmers and members of

the Soninke tribe. A dispute arose when Fulani tribesmen allowed their animals to go

onto Drame’s land and damage his crops. Ultimately, Fulani shepherds killed Drame’s

father; during the same altercation the shepherds beat Drame with sticks and machetes.

Drame fled to his uncle’s home, where he stayed for three weeks before traveling to

Canada. Following an initial unsuccessful attempt to seek admission to the United States

in 1995,1 Drame entered this country from Canada without inspection in July 1998.

       The Immigration Judge (“IJ”) found that Drame was not credible because of

discrepancies between his testimony and his affidavit concerning the circumstances

surrounding his father’s death and his trip to his uncle’s house. The IJ indicated that,

even assuming that Drame was credible, he would not be entitled to relief because the

incidents he described did not amount to persecution. Accordingly, the IJ denied all

relief. The Board of Immigration Appeals (“BIA”) adopted and affirmed the IJ’s adverse

credibility determinations.2 Drame petitioned for review of the BIA’s decision.

   1
     Drame pled guilty to attempted entry by willfully making a false misrepresentation of
material fact, see Immigration and Nationality Act (“INA”) § 275(a)(3) [8 U.S.C.
§ 1325(a)(3)], after he presented a false Canadian passport to United States border
officials.
   2
    Because Drame had not pursued asylum, the BIA vacated that portion of the IJ’s
decision which found that Drame’s asylum application was frivolous. Furthermore, the
BIA did not specifically adopt the IJ’s conclusion that Drame’s experiences did not rise to

                                             2
       Drame raises two claims on appeal, neither of which directly challenge the adverse

credibility determinations.3 First, Drame alleges that the IJ violated his due process

rights. He concedes that “gross inconsistencies were found between [his] testimony and

the affidavit that was prepared prior to the hearing,” but asserts that the IJ “should have

inquired as to what led to th[ese] discrepancies.” Instead, according to Drame, the IJ

“prevented the record from being properly developed,” failed “to give any weight to Mr.

Drame’s statements concerning his limited educational background,” and “hastily entered

a decision against him.”

       Judicial review of final orders of removal is available only if the alien has

exhausted administrative remedies available “as of right.” 4 INA § 242(d)(1) [8 U.S.C.


the level of persecution.
   3
     At one point, however, Drame asserts that “[o]ther than the inconsistencies between
[his] testimony and the affidavit, all other discrepancies were minor.” Drame is referring
to an inconsistency concerning the timing of his trip to his uncle’s house following his
father’s murder. Drame testified that after his father’s burial he “left the village the next
day.” He later stated that he had already left his home when the Fulani came to destroy it
the same day they killed his father. Drame’s affidavit indicated that he went to his
uncle’s home after being threatened with eviction from his home “a few days after [his
father’s] burial.” To account for these discrepancies, Drame explained that “[t]o travel
between our village to [the town where his uncle lived] is not a one day trip.” It is
possible that Drame left his house the day his father was killed, but did not leave the
village until the next day. Nevertheless, Drame’s explanation does not account for the
statement in his affidavit about leaving a “few days” after the burial. Contrary to
Drame’s belief, the amount of time he waited before leaving is relevant because it reflects
the degree to which he feared for his safety.
   4
     A claim is “available as of right” if “(1) the alien’s claim was within the jurisdiction
of the BIA to consider and implicated agency expertise, and (2) the agency was capable
                                                                                 (continued...)

                                              3
§ 1252(d)(1)]. “To exhaust a claim before the agency, an applicant must first raise the

issue before the BIA or IJ . . . so as to give it ‘the opportunity to resolve a controversy or

correct its own errors before judicial intervention.’” Bonhometre v. Gonzales, 414 F.3d

442, 447 (3d Cir. 2005) (citing Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir. 2004)).

“[S]o long as an immigrant petitioner makes some effort, however insufficient, to place

the Board on notice of a straightforward issue being raised on appeal, a petitioner is

deemed to have exhausted her administrative remedies.” Yan Lan Wu v. Ashcroft, 393

F.3d 418, 422 (3d Cir. 2005) (citing Bhiski v. Ashcroft, 373 F.3d 363, 367-68 (3d Cir.

2004)).

       The government contends that Drame failed to exhaust his due process claim. It is

clear that Drame did not raise this claim in his Notice of Appeal to the BIA or in his brief

filed in support of the Notice of Appeal. See Yan Lan Wu, 393 F.3d at 422. When a

petitioner advances a due process claim, however, exhaustion of administrative remedies

may not be required because the BIA generally lacks jurisdiction to hear constitutional

challenges. See Sewak v. INS, 900 F.2d 667, 670 (3d Cir. 1990). But a due process

claim alleging an error that is correctable through the administrative process is subject to

the exhaustion requirement. See Khan v. Attorney General, 448 F.3d 226, 236 n.8 (3d

Cir. 2006) (“[B]ecause this claim, stripped of its ‘due process’ label, is a claim of


   4
    (...continued)
of granting the remedy sought by the alien.” Bonhometre v. Gonzales, 414 F.3d 442, 447
(3d Cir. 2005).

                                               4
procedural error that could have been addressed by the BIA on appeal, the requirement

that [the petitioner] exhaust remedies applies.”). Drame’s complaint about the manner in

which the IJ conducted the hearing is essentially a procedural due process claim. It is

clear the BIA had the ability to hear, adjudicate, and remand this claim. See Bonhometre,

414 F.3d at 448 (holding that “it is beyond debate that, had the BIA concluded that the

IJ’s conduct during the immigration hearing did not fulfill his obligation to completely

develop the record under the immigration regulations, it could have remanded for a new

trial.”). Thus, Drame’s failure to present his procedural due process claims to the Board

renders them unexhausted.

       In his second claim, Drame asserts that the IJ and the BIA erred in denying his

application for relief under the CAT. The CAT prevents the United States government

from removing an alien to a country where torture will occur. See 8 C.F.R.

§ 208.16(d)(1). The torture must be “inflicted by or at the instigation of or with the

consent or acquiescence of” an official person. 8 C.F.R. § 208.18(a)(1). It is the

applicant’s burden to establish “that it is more likely than not” that he will be tortured if

removed. 8 C.F.R. § 208.16(c)(2). The applicant must meet this burden with objective

evidence. See Sevoian v. Ashcroft, 290 F. 3d 166, 175 (3d Cir. 2002). The denial of

relief under the CAT is reviewed under the substantial evidence test. See Zubeda v.

Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003).

       While Drame is correct that an adverse credibility finding does not necessarily



                                               5
preclude relief under the CAT, id. at 476-77, he has failed to demonstrate that he is more

likely than not to be tortured if returned to Mali. His contention that Fulani shepherds

will “continue to pursue him and kill him without any intervention from the government”

is purely speculative. The record contains no evidence that anyone in the Malian

government, or acting with its acquiescence, seeks to torture Drame. Therefore, the BIA

properly denied Drame’s CAT claim. See Tarrawally v. Ashcroft, 338 F.3d 180, 187-88

(3d Cir. 2003); 8 C.F.R. § 208.16(c)(2).

       For the foregoing reasons, we will deny the petition for review.




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