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


1-16-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3130




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                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                                  No. 06-3130


                         ARMSTRONG AGBORTABI
                            a/k/a James Lester,
                                           Petitioner

                                        v.

              ATTORNEY GENERAL OF THE UNITED STATES,
                                                 Respondent


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals
                              BIA No. A71-031-696
             (U.S. Immigration Judge: Honorable Alberto J. Riefkohl)


                          Argued September 10, 2007

     Before: SCIRICA, Chief Judge, RENDELL and FUENTES, Circuit Judges.

                            (Filed: January 16, 2008 )

RAYMOND P. D'UVA, ESQUIRE (ARGUED)
Law Offices of Raymond P. D'Uva
17 Academy Street, Suite 1000
Newark, New Jersey 07102
      Attorney for Petitioner

BRYAN S. BEIER, ESQUIRE (ARGUED)
RICHARD M. EVANS, ESQUIRE
DONALD E. KEENER, ESQUIRE
DAVID E. DAUENHEIMER, ESQUIRE
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
       Attorneys for Respondent


                               OPINION OF THE COURT


SCIRICA, Chief Judge.

       Petitioner Armstrong Agbortabi seeks review of the Board of Immigration

Appeals’s order reversing the decision of the Immigration Judge to grant his application

for political asylum and withholding of removal and ordering him removed. We have

jurisdiction to review the Board’s order under 8 U.S.C. § 1252. We will vacate and

remand.

                                             I.

       On May 23, 2002, the IJ granted Agbortabi withholding of removal but denied his

asylum request. The IJ based his decision in part on an article about Agbortabi in the

Watchman, a newspaper from Agbortabi’s homeland of Cameroon. Subsequently, a

report by a consular investigative assistant (“CIA”) with the U.S. Consulate in Cameroon

questioned the authenticity of the article as well as other documents submitted by

Agbortabi, including two documents (titled “Convocation” and “Warrant of Arrest”)

purported to be from the Ministry of Justice in Douala, Cameroon, and the affidavit of a

barrister in Cameroon. On remand from the BIA with instruction to consider the CIA

report, the IJ, following a hearing, examined the report at length but again granted


                                             2
withholding of removal. Deciding the IJ’s analysis was insufficient and failed to

explicitly include a credibility determination, the BIA again remanded the case to the IJ.

       Following the second remand, the IJ reconsidered the case with both parties

declining to offer further evidence. On March 11, 2004, the IJ issued a lengthy decision

granting Agbortabi withholding of removal as well as asylum. Although considering the

CIA report at length, the IJ explicitly found Agbortabi credible. The IJ’s decision was

again reviewed by the BIA, which found the IJ’s credibility determination clearly

erroneous. The BIA then independently made an adverse credibility determination and

ordered Agbortabi removed. Agbortabi appealed, and we remanded to the BIA to clarify

whether it had inappropriately enagaged in de novo review and whether it was required to

remand to the IJ on these facts. In a decision dated May 22, 2006, the BIA confirmed its

application of a clear error, as opposed to de novo, standard of review and also stated it

found no statutory or regulatory requirement for remand. This petition for review

followed.

                                             II.

       Where, as here, the BIA issues a decision on the merits, we review the BIA’s,

rather than the IJ’s, order. Li v. Attorney General, 400 F.3d 157, 162 (3d Cir. 2005). We

review factual findings, including credibility determinations, under a substantial evidence

standard. See 8 U.S.C. § 1252(b)(4)(B) (codifying INS v. Elias-Zacarias, 502 U.S. 478,

483-84 (1992)); Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003). Under this

deferential standard, we will reverse the BIA’s decision only “if the evidence is such that

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a reasonable factfinder would be compelled to conclude otherwise.” Chavarria v.

Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006) (citation omitted). “So long as the BIA’s

decision is supported by ‘reasonable, substantial, and probative evidence on the record

considered as a whole, we will not disturb the BIA’s disposition of the case.’” Id.

(quoting Elias-Zacarias, 502 U.S. at 481).

                                             III.

       The BIA found the IJ’s credibility determination clearly erroneous, because the

BIA found the IJ erred in its evaluation of the CIA report. The BIA found the report,

when properly evaluated, should have been afforded significant weight in determining

Agbortabi’s credibility.

       In its review of the IJ’s credibility determination, the BIA examined the

significance of the CIA report in potentially discrediting the documents submitted by

Agbortabi. With respect to the Watchman newspaper article, the BIA found the IJ erred

in criticizing the consular investigation into the article and finding that the probative

value of the article had not been rebutted. The BIA’s finding on the article was based on

evidence that additional copies of the article had not been located during a six-month

period after the article “appeared” and that several interviewees in the location of the

paper’s origin were unfamiliar with it. But as the IJ identified, the CIA investigation

found an independent newspaper manager who, although unfamiliar with the particular

article, confirmed the newspaper was a legitimate publication and detailed the region of

its circulation. In light of this fact, substantial evidence does not support the conclusion

                                              4
that the newspaper article did not exist. Accordingly, the IJ appropriately considered the

newspaper article as relevant to his credibility determination.

       But the CIA report also spoke to the apparently fraudulent nature of Agbortabi’s

other documents. While the IJ expressly credited the report in his decision and stated he

had carefully considered it, he discounted its significance based on his uncertainty as to

the veracity of the report’s source.1 The BIA found this rationale behind the IJ’s

evaluation of the report was based on speculation and therefore improper. Primarily for

this reason, the BIA found the IJ’s credibility determination clearly erroneous.

       After finding the IJ’s credibility determination clearly erroneous, the BIA found

Agbortabi not credible and ordered his removal. In this regard, the Board independently

weighed and balanced the underlying facts relevant to Agbortabi’s credibility. We do not

hold the BIA may not make an independent credibility determination where it finds the

IJ’s determination clearly erroneous. But in this case the BIA should have remanded to

the IJ for a new credibility determination properly considering and weighing all of the

relevant factors. See Gao v. Ashcroft, 299 F.3d 266, 279 (3d Cir. 2002) (upon vacating a

credibility determination, remanding for the IJ to make a new credibility determination

and to decide the petitioner’s asylum and withholding of removal claims without reliance



   1
      The IJ questioned the report’s revelations as to the fraudulent nature of Agbortabi’s
convocation and arrest warrant documents, because the source of the information was an
official of the government allegedly persecuting Agbortabi. Because he perceived the
source would have a motive to lie in this situation, the IJ discounted the weight of the
CIA report as part of his credibility determination.

                                             5
on the credibility determination previously made). Our approach in Dia v. Aschroft, 353

F.3d 228 (3d Cir. 2003), is instructive:

       Dia asks that we reverse the BIA and grant the relief he seeks. But we are
       not finding Dia credible. Rather, we are concluding, as we have repeatedly
       before, that because of the lack of substantial evidence to support the
       adverse credibility determination, we will remand in order for the agency to
       further explain or supplement the record. Moreover, as we have recently
       said: “We will not assess [Dia's] entitlement to relief based on the record as
       we have required it to be modified by this opinion because the agency
       should have the opportunity to do so.” Ezeagwuna v. Ashcroft, 325 F.3d
       396, 411 (3d Cir. 2003) (citing INS v. Orlando Ventura, 537 U.S. 12, 17-18
       (2002)); see also Secaida-Rosales v. INS, 331 F.3d 297, 313 (2d Cir. 2003)
       (stating, under similar circumstances, that “[t]he IJ should then reach the
       questions of asylum and withholding of deportation in light of such
       evidence, but without regard to its prior adverse credibility determination”);
       Senathirajah v. INS, 157 F.3d 210, 222 (3d Cir. 1998) (remanding to BIA
       with instructions to remand to IJ for decision on asylum and withholding
       application, but without consideration of erroneous adverse credibility
       finding reversed on appeal).

Id. at 260-61.

       The government contends the BIA acted properly because its reversal of the IJ

based on its assessment of the CIA report is conclusive as to Agbortabi’s credibility.

Specifically, the government asserts that the CIA report shows Agbortabi submitted

fraudulent documents as part of his application for asylum, and that this fact–when

appropriately considered by the IJ–renders Agbortabi per se not credible. The

government relies on In re O-D-, 21 I&N Dec. 1079, 1998 WL 24904 (BIA 1998)

[hereinafter O-D-]. But O-D- did not hold that the submission of fraudulent documents

necessitates a per se adverse credibility determination. The Board in O-D- explained that



                                             6
such facts were indicative of a lack of credibility, and a “critical factor” of the analysis,

but not dispositive in determining credibility. See id. at *1083. The Board further wrote:

       [I]n the context of an asylum adjudication, there may be instances in which
       a respondent voluntarily and intentionally submits a document into
       evidence, intending to establish his eligibility for asylum, that is later shown
       to be counterfeit. The adjudicator may consider whether that document
       points to a respondent’s lack of credibility regarding the asylum claim.
       Ordinarily, it is reasonable to infer that a respondent with a legitimate claim
       does not usually find it necessary to invent or fabricate documents in order
       to establish asylum eligibility. On the other hand, there may be reasons,
       fully consistent with the claim of asylum, that will cause a person to possess
       false documents, . . . .

       We find that this respondent’s presentation of at least one counterfeit
       document, and probably two, submitted to prove a central element of the
       claim in an asylum adjudication, indicates his lack of credibility. We also
       find that the presentation of such questionable documents, in the absence of
       an explanation regarding such presentation, creates serious doubts
       regarding the respondent’s overall credibility.

Id. (emphases added).

       Moreover, the O-D- opinion contained extensive discussion of “other

considerations” that, taken together with the fraudulent documents submitted there,

properly supported an adverse credibility finding in that case. See id. at *1083-1084.

One of those considerations given great weight was the adverse credibility finding of the

IJ in that case, id. at *1084, a determination to which the Board in O-D- recognized it was

required to afford great deference, see id. (citations omitted).

       Here, the IJ found Agbortabi wholly credible and suggested he would reach the

same conclusions irrespective of the “fraudulent” nature of the documents based on

Agbortabi’s testimony and several other factors such as State Department reports about

                                               7
the conditions in Cameroon. See In re Agbortabi, A71-031-696, Decision of the

Immigration Judge, April 21, 2004, at 10-11. Although the BIA found the IJ’s credibility

determination clearly erroneous, the IJ’s error in evaluating the CIA report is not

necessarily conclusive as to Agbortabi’s credibility. As in O-D-, a proper determination

of Agbortabi’s credibility will evaluate “other considerations” in addition to the CIA

report. Consequentially, the IJ must make a new credibility determination on remand

appropriately weighing the CIA report. But in making this determination, the IJ will also

be entitled to consider the Watchman article, to the extent he finds it authentic, as well as

State Department country reports, and all other appropriate factors.

                                             IV.

       For the foregoing reasons, we will vacate the decision of the BIA and remand with

instructions that the matter be remanded to the IJ for further proceedings consistent with

this opinion.




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