                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-15-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4237




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                                                            NOT PRECEDENTIAL


                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT




                         Nos. 04-4237 and 05-2121




                           LEA VIVIANE GAIE
                                         Petitioner
                                  v.

               ATTORNEY GENERAL OF THE UNITED STATES
                                      Respondent




                      Petition for Review of an Order
                   of the Board of Immigration Appeals
                               (A96-248-534)
                  Immigration Judge: Henry S. Dogin


                         Argued February 28, 2006

Before: SLOVITER, FUENTES, Circuit Judges, and BRODY,* District Judge

                            (Filed: May 15, 2006)




           *
               Hon. Anita B. Brody, United States District Court for the
               Eastern District of Pennsylvania, sitting by designation.
Joseph C. Hohenstein (Argued)
Orlow & Orlow
620 Chestnut Street
Suite 656
Philadelphia, PA l9l06

       Attorney for Petitioner

James B. Clark, III (Argued)
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102

Jonathan Potter
United States Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878, Civil Division
Washington, DC 20044

       Attorneys for Respondent

                                        OPINION

SLOVITER, Circuit Judge.

                                             I.

       Petitioner, Lea Viviane Gaie, is a native and citizen of Côte d’Ivoire. On April 27,

2002, she entered the United States on a non-immigrant business visa with permission to

remain for three months. Although trained as a nurse, Gaie entered this country seeking

to purchase electronic equipment for re-sale in Côte d’Ivoire. Gaie applied for an

extension of her visa but later chose not to pursue that application and overstayed without

authorization. She conceded removability before an Immigration Judge (IJ), and applied

                                             2
for asylum, withholding of removal, and relief under the Convention Against Torture

(CAT).

      Gaie’s claims for relief from removal arise out of the recent political turmoil in

Côte d’Ivoire. This court has summarized the pertinent country conditions as follows:

             In December 1999, a group of “army mutineers” loyal to
             General Robert Guéi led a coup that overthrew President
             Konan Bédié. In a presidential election held the following
             year, the Ivorian Supreme Court disqualified all of the leading
             candidates except for Guéi and Gbagbo. Although Gbagbo
             won 51.9 percent of the vote, compared to Guéi's 28.7
             percent, Guéi claimed victory. Guéi’s attempted power grab
             triggered a popular uprising. Gbagbo was then declared the
             winner of the election, but that result was contested by
             followers of Alassane Dramane Ouattara, a former prime
             minister. Armed clashes began in which the government
             army and supporters of Gbagbo's party, the Front Populaire
             Ivoirien, were allied against Ouattara supporters. In 2001 and
             2002, the various factions appeared to make progress toward
             reconciliation. Local elections were held without incident,
             and Bédié, Ouattara, and Guéi took part in a forum of national
             reconciliation. The economy seemed to be recovering, and a
             government of national unity was formed.

                     The situation changed suddenly on September 19,
             2002, when junior officers who had once been affiliated with
             Guéi mutinied in three Ivorian cities: Abidjan, Korhogo, and
             Bouake. . . . During the violence in Abidjan, Guéi was killed,
             allegedly by government assassins. There were also killings
             or attempted killings of other political leaders. The
             government suppressed the mutiny in Abidjan, but the rebels
             soon seized the northern half of the country. According to the
             State Department’s 2003 Country Report on Côte d'Ivoire,
             “[t]he failed coup attempt and ongoing rebellion quickly
             escalated into the country's worst crisis since independence in
             1960.” Both the rebels and the government, including the
             gendarmes, committed rampant human rights abuses.

                                             3
Konan v. Att’y Gen., 432 F.3d 497, 499 (3d Cir. 2005) (footnote omitted).

       Gaie makes no claim of past persecution, but she fears returning to Côte d’Ivoire

due to the violence of September 2002 and its aftermath. Gaie asserts that General Robert

Guéi, the one-time military ruler of Côte d’Ivoire who was murdered in September 2002,

was her “uncle.” 1 General Guéi allegedly had helped Gaie by recommending her

admission to nursing school. On September 28, 2002, Gaie also learned that the father of

her two children, Jean Tise, was murdered, allegedly by “rebels” who believed that Tise

was related to General Guéi. Gaie’s mother fled to Guinea with Gaie’s two children

following the violence of September 2002 but has since returned with the children to Côte

d’Ivoire. Gaie’s father, Mathias, who is not married to Gaie’s mother, is allegedly in

hiding in the city of Abidjan. Mathias’s house was ransacked as a result of the death of

General Guéi. Gaie’s cousin, Antoinette Roberts, appeared as a witness in the hearing

before the IJ and testified to the alleged family tie to General Guéi. Gaie claims that she

fears future persecution, either by government forces or by the rebels, on account of her

familial relationship to General Guéi and because of the murder of Jean Tise.

       The IJ denied Gaie’s applications for relief, noting primarily that Gaie failed to



                    1
                    Although Gaie testified that General Guéi was her “uncle,”
            she explained the family relationship by noting that General Guéi
            and her father were “cousins.” App. at 125, 144-45. In her asylum
            application, Gaie stated, “I believe my father and Gen. Gu[é]i are
            actually cousins, as relations are counted in America, but in Africa,
            they would be counted as brothers, and I would be counted as his
            niece.” App. at 239.

                                              4
corroborate the testimony regarding her alleged relationship to General Guéi. Among

other things, the IJ observed that Gaie’s last name is spelled G-A-I-E while the General’s

name was spelled G-U-E-I and her father Mathias’s name is spelled both G-A-I-E and G-

U-E-Y-E. With no documentation linking Mathias to General Guéi, the IJ was

unconvinced that the claimed relationship existed. Even assuming a relationship, the IJ

was unconvinced that Gaie would be persecuted as a result, or that Gaie’s testimony was

credible. The IJ found “inexplicable” Gaie’s failure to mention Jean Tise’s murder in her

asylum application. Gaie also failed to mention her mother’s exodus to Guinea or that her

father was in hiding. The IJ observed that Gaie has relatives in Côte d’Ivoire who remain

unharmed, and that Gaie failed to establish how and why General Guéi was killed,

thereby undermining her claim that she would be at risk.

       On October 5, 2004, the BIA summarily affirmed the IJ’s decision. Gaie filed a

timely petition for review, which this court docketed as C.A. No. 04-4237. Gaie also

filed a motion to reconsider with the BIA in which she argued that the IJ failed to

consider her explanations for the omissions in her application, expected corroboration that

would have been difficult to obtain, and ignored problems in translation at the hearing.

On March 9, 2005, the BIA rejected the motion to reconsider, concluding that Gaie

sought to reiterate arguments made on her appeal. Gaie’s timely petition for review from

that order was docketed as C.A. No. 05-2121. We have consolidated the petitions for

review for disposition.



                                             5
                                             II.

       This court has jurisdiction under 8 U.S.C. § 1252(a)(1). Because the BIA affirmed

the final order of removal without any independent analysis, we review the IJ’s decision.

Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). Our review is conducted under the

deferential substantial evidence standard. Caushi v. Att’y Gen., 436 F.3d 220, 225 (3d

Cir. 2006). We must accept the IJ’s findings as conclusive “unless any reasonable

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B);

see Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc) (“If a reasonable fact

finder could make a particular finding on the administrative record, then the finding is

supported by substantial evidence.”).

       The Attorney General may grant asylum to a “refugee,” 8 U.S.C. § 1158(b)(1), a

term defined in relevant part as a person unable or unwilling to return to the country of

that person’s nationality or habitual residence because of “a well-founded fear of

persecution on account of . . . membership in a particular social group.” 8 U.S.C.

§ 1101(a)(42)(A). The IJ held that Gaie can be considered for asylum as a member of a

“particular social group” based on kinship to General Guéi, but denied relief because

Gaie failed to establish her membership in that social group given the absence of any

evidence to corroborate her testimony regarding the familial relationship.2



                   2
                    The BIA has interpreted “particular social group” as
            including kinship ties. See Fatin v. INS, 12 F.3d 1233, 1239-40
            (3d Cir. 1993).

                                             6
       In Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001), we held that an IJ may

require an otherwise credible alien to supply corroborating evidence, but only if it would

be reasonable to expect corroboration. An alien who fails to introduce such evidence, or

to offer a satisfactory explanation for the failure, can be held to have failed to meet the

burden of proof. Id. at 551. It is reasonable, for example, to expect the alien to

corroborate facts central to the claim and easily subject to verification. Id. at 554. Under

the REAL ID Act of 2005, “[n]o court shall reverse a determination made by a trier of

fact with respect to the availability of corroborating evidence . . . unless the court finds . .

. that a reasonable trier of fact is compelled to conclude that such corroborating evidence

is unavailable.” 8 U.S.C. § 1252(b)(4).

       Gaie’s alleged familial relationship to General Guéi is the cornerstone of her

asylum claim, and we see no error in the IJ having sought reasonably available

corroboration to support Gaie’s testimony on the subject. Gaie contends that because of

the civil strife, it was unreasonable to expect family members to gather birth records or

other official documentation in Côte d’Ivoire. However, even if we assume the

impossibility of procuring government-issued documents, it was not unreasonable for the

IJ to expect corroboration in the form of affidavits from family members. The record is

clear that Gaie has remained in contact with her mother since the violence of September

2002; that she has been in contact with her father; and that she has relatives, including

two of her father’s brothers, whom she could attempt to contact in France. None of those



                                               7
individuals produced an affidavit regarding Gaie’s alleged relationship to General Guéi.

When asked at the asylum hearing whether she had documentation to establish that her

father was related to General Guéi, Gaie responded, “No, because when I came to the

United States I did not – I was not thinking in terms of that I would be asked that.” App.

at 156. Gaie further testified that she had made no effort to get documentation from her

relatives in France. Moreover, although Gaie presented the testimony of her alleged

cousin, Antoinette Roberts, the IJ reasonably discounted that testimony because Roberts

failed to produce any documentation to establish her own identity much less the existence

of a kinship tie between Gaie and General Guéi. We find substantial evidence to support

the IJ’s finding that Gaie could have and should have produced corroborating evidence of

her alleged relationship to General Guéi.

       Additionally, the IJ questioned the truthfulness of Gaie’s testimony given the

various omissions of relevant evidence from her asylum application. The IJ noted, inter

alia, that Gaie failed to mention in her application the murder of Jean Tise – an event

upon which Gaie expressly relied at the hearing to support her claim that she fears a

return to Côte d’Ivoire. Gaie contends, as she did before the IJ, that she honestly believed

that Tise was not a “family member” and that information about his death was non-

responsive to the question posed in the asylum application. She also claims that she did

not learn that Tise was killed (as opposed to merely kidnapped) until just prior to the

asylum hearing.



                                             8
       Gaie completed her asylum application with the assistance of counsel, and the

application question at issue is broadly worded: “Have you, your family, or close friends

or colleagues ever experienced harm or mistreatment or threats in the past by anyone?”

App. at 239. Tise, as the father of Gaie’s two children, certainly fits within the class of

people contemplated by the question. In addition, Gaie testified that she learned that Tise

had “disappeared” in September 2002, which was prior to her completion of the

application in December 2002. Thus, while she had not yet received confirmation that

Tise was dead (a fact she allegedly learned in June 2003), Gaie certainly could have

included information about Tise’s disappearance in her asylum application, particularly

because she claimed that the alleged mistreatment of Tise based on his perceived

relationship to General Guéi was a factor behind her fear of returning to Côte d’Ivoire.

       Gaie suggests that “translation and interpretation issues” at the asylum hearing

may have limited the extent to which she was able to explain herself to the IJ. Gaie notes

that her native language is Krahn and that her interpreter for the proceedings spoke

French. Gaie seems to suggest that problems with interpretation should have compelled

the IJ, sua sponte, to postpone the proceedings until a Krahn interpreter could be

provided. This argument lacks merit. Gaie told the IJ at the outset of the hearing that she

spoke French, and when asked if she understood the French interpreter, she replied, “Yes,

we understand each other real good.” App. at 117. Gaie’s counsel raised no objection to

use of a French interpreter, and the IJ expressed no difficulty in understanding Gaie’s



                                              9
testimony. Moreover, Gaie has failed to identify where in the record there is evidence to

show that she was misunderstood or misinterpreted, and she has not explained how her

testimony would have been different were it interpreted from Krahn as opposed to

French.

       In sum, we conclude that substantial evidence supports the IJ’s denial of asylum.

Gaie’s claim for withholding of removal was also properly rejected, as it required an even

greater showing to warrant relief. See Senathirajah v. INS, 157 F.3d 210, 215 (3d

Cir.1998). Gaie’s CAT claim, which required a showing that it is more likely than not

that she would be tortured upon return to Côte d’Ivoire, 8 C.F.R. § 1208.16(c)(4), was

properly rejected, as Gaie predicated the claim upon her unsubstantiated relationship to

General Guéi. Moreover, Gaie has waived her CAT claim by failing to argue it in her

appellate brief. See Lie v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005). Finally, we

note that Gaie makes no express argument to challenge the BIA’s denial of her motion to

reconsider, and thus we deem that issue waived, as well.

                                            III.

       For the reasons stated, we will deny the petitions for review.
