                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-17-2009

Bineta Lo v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3500




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"Bineta Lo v. Atty Gen USA" (2009). 2009 Decisions. Paper 1734.
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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 08-3500
                                     ___________

                                BINETA FATIMA LO,
                                         Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                     Respondent
                       __________________________

                         Petition for Review of an Order of the
                          United States Department of Justice
                             Board of Immigration Appeals
                                 (BIA No. A73 643 273)
                           Immigration Judge: Frederic Leed
                            __________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  March 13, 2009

            Before: RENDELL, FUENTES and NYGAARD, Circuit Judges

                                (Filed: March 17, 2009)
                                     ___________

                             OPINION OF THE COURT
                                  ___________

PER CURIAM

      Bineta Fatima Lo petitions for review of an order of the Board of Immigration

Appeals (BIA), which dismissed her appeal from an Immigration Judge’s (IJ’s) final
removal order. We will deny the petition.

       Lo is a native and citizen of Senegal. This case has a long and complex history.

Because the parties are familiar with the history and facts of the case, we will recount the

events in summary fashion. Lo came to the United States in 1993 and applied for asylum

in 1994. That application stated that she was persecuted due to involvement in politics as

a student in Senegal. Lo later disavowed that application, stating she had never read it.

An Asylum Officer declined to grant Lo asylum, based on an adverse credibility finding,

and referred her to an Immigration Judge (IJ). A.R. 630-33. She filed a second asylum

application with the help of counsel in 1998.1 A.R. 730-38. According to that

application, she lived in the Casamance region of Senegal with her uncle, who was an

active member of the Movement of Democratic Forces of Casamance (MFDC), which

was a group rebelling against the government and seeking independence for the region.

A.R. 733. Her parents lived in Dakar, where her father was a minister in the government.

Her uncle asked her to get information from her father to supply to the MFDC . In return,

she was promised a position with the government if MFDC was successful. Id. Lo

surreptitiously copied documents she obtained from her father and provided them to her

uncle on various occasions. On one trip, the group she was traveling with was stopped by




  1
    It appears that what Lo told the Asylum Officer is similar to what she said in her 1998
asylum application, except that she told the Asylum Officer that her father became
Ambassador to Togo at some point. A.R. 632. She later disclaimed that statement and
said that her father never held that position. A.R. 309.

                                             2
police, and she was searched and taken into custody. Id. The police realized the

documents she was carrying must have come from inside the government. Her father was

able to arrange for her release. When she returned to Casamance, she found that her

uncle had been killed and his family was missing. According to the application, she did

not know if the government or the MFDC had killed him. Her father was forced to resign

from his position because of the problems, and Lo fled for the United States. Id.

       After numerous continuances, Lo appeared before IJ Strasser for a hearing on the

merits on January 9, 2004. After she testified, the IJ adjourned the case for a few days to

allow Lo to produce her passport. When the case reconvened on February 3, 2004, Lo

noted that she had just received a letter from her attorney in Senegal, and a letter from her

father. The case was adjourned again to allow her to obtain translations. On March 5,

2004, the IJ marked the letters as evidence, and attempted to call Lo’s attorney in Senegal

to get more information, but the attorney said the connection was not good and he could

not answer. The parties made arrangements to try again, but the record does not reflect

that this ever took place. On March 30, 2004, Lo did not appear at the hearing because

her child was sick. The IJ entered an order of removal, but Lo successfully moved to

reopen. Lo’s attorney did not appear for an August 28, 2005 hearing. IJ Strasser

apparently retired or resigned, and IJ Frederic Leeds took the case and heard testimony on




                                              3
August 21, 2006.2 IJ Leeds indicated that he had reviewed the testimony from the

January 2004 hearing.

       The IJ denied asylum and withholding based on an adverse credibility finding.

The IJ found numerous discrepancies between Lo’s testimony in 2004 and her testimony

in 2006 and also commented on a lack of corroboration for parts of her claim. The IJ also

noted that Lo had failed to present any credible evidence that she would be tortured if

returned to Senegal. The IJ held that the fact that she might face the death penalty for

treason was prosecution rather than persecution. The IJ also noted, without deciding, that

Lo might be found to be a terrorist.

       The BIA adopted and affirmed the IJ’s decision. The BIA found the adverse

credibility finding “supported by specific cogent reasons for which the respondent

provided no reasonable explanations.” The BIA listed numerous page numbers from the

transcripts to support its holding.

       Lo, proceeding pro se, filed a timely petition for review, albeit in the wrong court.

The United States Court of Appeals for the Second Circuit transferred the matter here.

We denied Lo’s motion for a stay of removal.




  2
   Also in 2006, Lo provided a Senegalese warrant for her arrest for treason, with an
English translation. The warrant notes that treason is punishable by death. A.R. 634-38.
This document was apparently not sent to forensics.

                                             4
       An adverse credibility finding should be upheld to the extent it is supported by

reasonable, substantial and probative evidence on the record considered as a whole, and

should only be reversed if there is evidence so compelling that no reasonable factfinder

could conclude as the IJ did. Caushi v. Attorney General, 436 F.3d 220, 225 (3d Cir.

2006). Any discrepancies must involve the heart of the claim. Id. at 229.3 We hold that

the adverse credibility finding here is supported by substantial evidence.

       One concern is Lo’s inconsistent testimony regarding her passport. In a statement

Lo provided with her 1998 asylum application, A.R. 762-63; she stated that she came to

the U.S. in 1993, then returned to Senegal after 6 months because she thought the trouble

was over. The statement says when she returned her father gave her a letter from the

government telling her she would have to leave the country. Id. In her 2004 testimony,

she reiterated that she left Senegal in 1993, then returned to Senegal for a short time, six

months later, in 1994. She testified that when she was there, she was imprisoned for

about two weeks and beaten. A.R. 130, 139. In her 2006 testimony, however, she

insisted that she never returned to Senegal after leaving in 1993. A.R. 272, 276-77.

Nevertheless, her passport reflected a trip to Senegal and return in 1994. A.R. 273.

      The passport also reflected a stamp showing an entry into Senegal in 1995. Lo had




  3
    The provisions of the Real ID Act of 2005 regarding credibility do not apply to cases
such as this one, where the asylum application was filed long before the enactment of the
Real ID Act. Real ID Act of 2005, Pub. L. No. 109-13, Div. B, § 101, 119 Stat. 231 (May
11, 2005).

                                              5
many different changing explanations for this. First, in 2004, she said her passport had

been stolen, and she had no idea how it got stamped, and that it was mailed back to her.

A.R. 100, 102. The return address was from somewhere inside the United States. A.R.

175. In 2006, Lo first testified that her mother came to the U.S., borrowed her passport,

and mailed it back to her. A.R. 242. Then she changed her testimony to say that her

mother took the passport, but it got lost at the airport when her mother tried to send it

back. A.R. 244-45. Lo said she made a police report, but the report was made in Senegal.

She did not file a police report in the U.S. until 1997. A.R. 245. She testified that the

Senegalese police found the passport and gave it to her parents. A.R. 247.

       The matter of whether Lo used her passport to return to Senegal, and when, goes to

the heart of her claim, because she claims that she feared returning to Senegal. We also

find it troubling that she disclaimed her earlier testimony that she had been imprisoned for

two weeks and beaten in Senegal in 1994.

       A second problem is Lo’s changing testimony about how she learned of her uncle’s

death. Her asylum application stated that when she returned to Casamance, she found that

her uncle had been killed and his family was missing. A.R. 154, 733. She testified in

2004 that her father told her of her uncle’s death. A.R. 128. In 2006, she testified that her

father did not know about her uncle’s death. A.R. 266.

       The BIA also noted the page of testimony which now bears the number A.R. 278.

That page reflects Lo’s testimony in 2006 that she was subjected to electric shock when



                                               6
she was in prison in Senegal. Lo made no mention of having been subjected to electric

shocks in her earlier applications and testimony. Given Lo’s changing stories regarding

her passport, her uncle’s death, and the sudden introduction of testimony regarding the

electric shocks, we hold that the record does not compel a reversal of the adverse

credibility finding.4 Thus, the BIA properly affirmed the IJ’s decision denying asylum and

withholding of removal.

       Lo argues that the IJ failed to separately analyze whether she would be subjected to

torture in Senegal. The record shows that the IJ did do a separate analysis. Further, the

only evidence that she would be “tortured” is the Senegalese warrant, see n.2, supra, which

shows that she might be subjected to the death penalty if convicted of treason. Relief is

not available under the United Nations Convention Against Torture for “‘pain or suffering

arising only from, inherent in or incidental to lawful sanctions,’ defined to ‘include

judicially imposed sanctions and other enforcement actions authorized by law, including

the death penalty’ . . . .” Pierre v. Attorney General, 528 F.3d 180, 195 (3d Cir. 2008)

(quoting 8 C.F.R. 208.18(a)(1) & (3)). Although her mention of electric shocks might be




   4
    Lo argues that some of the reasons the IJ relied on for his adverse credibility finding
were improper. First, she argues that he should have credited her explanation that her
mother had used her passport (as noted above, we disagree, given Lo’s several changing
explanations). She also argues that the IJ improperly relied on his disbelief that the
government of Senegal would assist her in arranging to have her stepson come to the
United States, and that the IJ was improperly concerned that there was no arrest warrant
for her father. Because the BIA did not rely on these latter two reasons, we do not discuss
them here.

                                              7
evidence of past torture, her testimony in that regard is not credible, as she did not mention

the electric shocks in any application, interview or previous testimony.

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




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