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


3-27-2008

Sy v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1228




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 07-1228
                                    ____________

                             AMANDOU TIDIANE SY,

                                           Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                          Respondent
                                    ____________

                           On Petition for Review from an
                      Order of the Board of Immigration Appeals
                              (Board No. A79-318-492)
                       Immigration Judge: Rosalind K. Malloy
                                    ____________

                     Submitted Under Third Circuit LAR 34.1(a)
                                  March 6, 2008

             Before: FISHER, GREENBERG and ROTH, Circuit Judges.

                               (Filed: March 27, 2008)
                                    ____________

                             OPINION OF THE COURT
                                  ____________

FISHER, Circuit Judge.

      Amadou Sy petitions for review of the final decision of the Board of Immigration

Appeals (“BIA”) ordering his removal from the United States. He appeals the BIA’s
denial of his applications for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). For the reasons set forth below, we will deny the

petition.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       Sy entered the United States on June 25, 2000, or on November 17, 2000.1 On

May 14, 2001, he applied for asylum, withholding of removal, and relief under the CAT.

The former Immigration and Naturalization Service sent him a Notice to Appear on

August 22, 2001, placing him in removal proceedings. During subsequent hearings, Sy

presented evidence to the IJ. He testified that he was born in the Republic of the Congo

(“Congo”) in 1967, and had primarily lived in the Congo until 1997. He claimed that, in

1997, a rebel group called the Cobras attacked him and threatened him with death

because he was a member of the Lari ethnic group and supported the former president of

the Congo. He further claimed that, after the attacks, he returned to his home to collect

his wife and daughter, and the three of them crossed the border into Gabon. In addition to


       1
         Sy provided the first date in his application for asylum, but provided the second
date during a subsequent interview with the Asylum Office. The asylum officer found
that Sy provided credible testimony as to the date of his arrival, and thus found that his
application was timely as it was filed within one year of his arrival. The IJ did not disturb
that ruling.

                                              2
his testimony, Sy provided country reports describing human rights violations occurring

in the Congo.

       The IJ found that Sy’s testimony was not credible, and he had “failed to establish

his identity as a native and citizen of the Congo.” For this reason, the IJ denied Sy’s

applications for asylum, withholding of removal, and protection under the CAT. The BIA

affirmed, without opinion, the IJ’s denial of Sy’s claims. This timely petition for review

followed.

                                              II.

       We have jurisdiction to review a final order of removal pursuant to 8 U.S.C.

§ 1252(a)(1). Where, as here, the BIA adopted the IJ’s decision, we review the decisions

of both the BIA and the IJ. Shehu v. Att’y Gen., 482 F.3d 652, 657 (3d Cir. 2007). We

review the factual findings of the IJ, including adverse credibility findings, for substantial

evidence. Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir. 2003). Thus, we will

uphold the findings 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). Moreover, “the BIA’s

finding must be upheld unless the evidence not only supports a contrary conclusion, but

compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001).




                                              3
                                            III.

       An alien is eligible to receive a discretionary grant of asylum under the

Immigration and Nationality Act (“INA”) if he demonstrates that he is a refugee. 8

U.S.C. § 1158(b)(1)(A)-(B). Under the INA, a refugee is:

       [A]ny person who is outside any country of such person’s nationality . . . ,
       and who is unable or unwilling to return to, and is unable or unwilling to
       avail himself or herself of the protection of, that country because of
       persecution or a well-founded fear of persecution on account of race,
       religion, nationality, membership in a particular social group, or political
       opinion[.]

Id. § 1101(a)(42). The applicant has the burden of providing credible evidence to

demonstrate his refugee status. Id. § 1158(b)(1)(B). Where the IJ finds that the applicant

has not provided credible evidence to support his claim, the IJ must give specific, cogent

reasons for the finding. Gabuniya v. Att’y Gen., 463 F.3d 316, 321 (3d Cir. 2006). These

reasons must demonstrate that the IJ based the adverse credibility determination on

evidence in the record, not “speculation or conjecture.” Gao v. Ashcroft, 299 F.3d 266,

272 (3d Cir. 2002). “[T]he discrepancies must involve the heart of the asylum claim,” not

merely “minor inconsistencies” in the applicant’s testimony. Id. (internal quotation marks

and citation omitted).

       Substantial evidence supports the IJ’s conclusion that Sy’s testimony was not

credible because there were several inconsistencies in Sy’s testimony. First and foremost,

although Sy alleged that he was persecuted because he was of Lari ethnicity, he

eventually admitted that his ethnicity is Fulani, not Lari. He also omitted a key fact about

                                             4
the extent of his injuries in his written application, and he testified inconsistently as to

whether bullets or rocks had struck his house during the attack.2 These inconsistencies

and discrepancies go to the heart of Sy’s asylum claim, and we cannot find that “any

reasonable adjudicator would be compelled to conclude to the contrary.” Id. Therefore,

we will uphold the IJ’s adverse credibility determination.

       Additionally, substantial evidence supports the IJ’s conclusion that Sy was not a

national of the Congo. First, Sy lied about being of Lari ethnicity, and he could only

speak Fulani, not Lari or Lingala, which are the languages typically spoken in the area of

the Congo in which he claimed to have lived for thirty years. Additionally, Sy could not

provide any details about the Congo, including the street on which he lived, the name of

his store in the marketplace, the political parties of the current and former presidents for

whom he supposedly voted, the colors of the flag, and the weather.3 The IJ provided

       2
       Sy also testified inconsistently as to the number of years that he studied in
Senegal, and the city in which he stopped on his way to the United States.
       3
         To the extent that Sy argues that the IJ should not have concluded that he was not
from the Congo because of his birth certificate, his argument is unavailing. As we have
previously acknowledged, the IJ may require corroborating documentation even where an
applicant is credible, and such corroboration is required “where it is reasonable to expect
such proof from a witness and there is no satisfactory explanation for its absence.” Obale
v. Att’y Gen., 453 F.3d 151, 163 (3d Cir. 2006). Here, the IJ properly determined that
Sy’s testimony that he was a native of the Congo was not credible, thus making
corroborating documentation of his nationality of greater importance. Upon reviewing
Sy’s birth certificate, the Forensic Document Laboratory found that it was unable to
authenticate it, and stated that it “may not be what it purports to be.” As a result, the IJ
reasonably requested that Sy attempt to obtain a passport from the Congolese embassy in
an effort to provide proof of his status as a national of the Congo. Sy had eighteen
months to request a passport, yet he did not do so.

                                               5
specific, cogent reasons for her reasoning, which was “supported by reasonable,

substantial, and probative evidence” in the record. See Balasubramanrim, 143 F.3d at

161.

       Based on the foregoing, substantial evidence supports the IJ’s conclusion that Sy

did not demonstrate that he is a refugee qualifying for a discretionary grant of asylum.

Sy’s testimony as to any past persecution was not credible. Moreover, as Sy did not

demonstrate that he is a native of the Congo, he has not demonstrated that the Congo is

the “country of [his] nationality” to which he is “unable or willing to return.” 8 U.S.C.

§ 1101(a)(42). As a result, he did not demonstrate that he has been persecuted, or has a

well-founded fear of persecution, in his country of nationality, and thus, he is not a

refugee.

       Sy also petitions for review of the BIA’s denial of his application for withholding

of removal. The Attorney General may not remove an alien to his country of origin if his

“life or freedom would be threatened in that country because of [his] race, religion,

nationality, membership in a particular social group, or political opinion.” Id.

§ 1231(b)(3)(A). In order to qualify for withholding of removal under § 1231, an alien

must demonstrate either past persecution, in which case a rebuttable presumption exists

that the alien will suffer future persecution, or future persecution. 8 C.F.R.

§ 1208.16(b)(1), (2). However, the IJ found that Sy should be removed to Gabon or

Senegal, and Sy has not offered any evidence demonstrating that his life or freedom



                                              6
would be threatened in Gabon or Senegal.4 Thus, substantial evidence also supports the

IJ’s decision that Sy does not qualify for withholding of removal.

       Finally, Sy petitions for review of the BIA’s denial of his application for protection

under the CAT. In order to meet the requirements for protection under the CAT, an

applicant must prove “that it is more likely than not that he or she would be tortured if

removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). “Torture is an

extreme form of cruel and inhuman treatment and does not include lesser forms of cruel,

inhuman or degrading treatment or punishment that do not amount to torture.” Id.

§ 1208.18(a)(2). Sy has not provided evidence that it is more likely than not that he

would be tortured if removed to Gabon, Senegal, or the Congo. Thus, substantial

evidence supports the IJ’s decision that Sy does not qualify for protection under the CAT.

                                             IV.

       For the reasons set forth above, we will deny Sy’s petition for review.




       4
        The IJ found that Sy should be removed, in the alternative, to the Congo. Sy
argues that he has demonstrated that it is more likely than not that his life or freedom
would be threatened in the Congo based on his political opinion. However, Sy did not
provide credible evidence supporting this claim, and as a result, substantial evidence
supported the IJ’s conclusion that he does not qualify for withholding of removal even as
to the Congo.

                                              7
