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


6-11-2009

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Precedential or Non-Precedential: Precedential

Docket No. 07-2691




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                                PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT



            No. 07-2691


          BAYO ISSIAKA,

                  Petitioner

                  v.

    ATTORNEY GENERAL OF
     THE UNITED STATES,

                   Respondent


   Petition for Review of an Order of
   the Board of Immigration Appeals
        Agency No. A98-690-456
 (Immigration Judge Miriam K. Mills)


      Argued: October 29, 2008
           ___________
    Before: MCKEE, NYGAARD, and MICHEL,* Circuit
                      Judges,

                    (Filed: June 11, 2009)

Laetitia B. Creech, Esq. (Argued)
1238 Broad Street, 1st Floor
Philadelphia, PA 19146

       Attorney for Petitioner

Richard M. Evans, Esq.
Nancy E. Friedman, Esq. (Argued)
Joan E. Smiley, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044

       Attorneys for Respondent



                          OPINION




       *
        The Honorable Paul R. Michel, Chief Judge of the
United States Court of Appeals for the Federal Circuit, sitting
by designation.

                                 -2-
MCKEE, Circuit Judge:

       Bayo Issiaka petitions for review of a final decision of
the Board of Immigration Appeals ordering his removal to the
Ivory Coast and denying his applications for asylum,
withholding of removal, and protection under the Convention
Against Torture. We have jurisdiction pursuant to 8 U.S.C. §
1252(a). For the reasons explained below, we will grant the
petition and remand this matter to the Board for further
proceedings.
                       I. Background

        Bayo Issiaka, a native and citizen of Cote d’Ivoire (the
“Ivory Coast”), claims to have traveled to the United States as
a stowaway aboard a cargo ship, and to have arrived in the
United States in December 2003. He filed an asylum
application on December 13, 2004, and was subsequently given
notice of removal because he had not legally entered the United
States. Thereafter, Issiaka conceded removability, but requested
relief in the form of asylum, withholding of removal, and relief
under the Convention Against Torture (the “CAT”).

        At a hearing before an Immigration Judge (Hon. Miriam
Mills), Issiaka testified that his father had worked as a chauffeur
for General Robert Guei, Cote d’Ivoire’s deposed military
leader. On September 19, 2002, Guei and Issiaka’s father were
killed by government troops during an apparent coup attempt.
The next day, soldiers came to Issiaka’s home in Abidjan. The
soldiers shot and killed Issiaka’s mother, and forcibly took
Issiaka and his brother to a military camp. According to Issiaka,
at the camp, he was beaten with sticks and his brother was tied

                                -3-
to a car and dragged to his death.

       While Issiaka was being detained at the camp, a family
friend named “Colonel Bakayioko,” arrived at Issiaka’s home
and discovered that Issiaka’s mother had been killed. The
colonel retrieved some of the family’s identification papers and
drove to the military camp where Issiaka was being held.
According to Issiaka, he was able to leave the camp and flee to
a friend’s house in the village of San Pedro with the Colonel’s
help. There, a doctor treated the wounds inflicted during
Issiaka’s beating.

       Issiaka testified that in November 2003, he snuck aboard
a cargo ship bound for the United States. He also said that,
since arriving in the United States, he has been in touch with his
aforementioned friend in San Pedro, as well as with other
friends in Abidjan, and with his uncle. The uncle sent Issiaka
copies of some identification documents that were in the
possession of Issiaka’s former employer.

        The Immigration Judge rejected the asylum claim as
untimely because Issiaka could not establish that he filed his
asylum petition within one year of his arrival in the United
States. See 8 U.S.C. § 1158(a)(2)(B). The IJ also denied the
application for withholding of removal and CAT relief, because
the IJ concluded that Issiaka was not credible. The IJ based the
adverse credibility determination on inconsistencies in Issiaka’s
testimony, his lack of specificity regarding his head wounds, his
failure to mention any medical treatment for those wounds in his
written asylum application, and the absence of corroboration.



                               -4-
       Issiaka appealed to the Board of Immigration Appeals,
but the Board affirmed the IJ’s ruling in a brief per curiam
opinion. The Board agreed that the asylum application was not
timely, and that Issiaka was not credible. This petition followed.

                    II. Standard of Review

       Because the Board implicitly adopted the findings of the
Immigration Judge while discussing the IJ’s conclusions, we
review the decisions of both the Board and the IJ. See Xie v.
Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). Our review is
subject to the familiar “substantial evidence” standard.
Accordingly, we must determine if the conclusions of the IJ and
Board 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)
(quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).
Adverse credibility determinations must be based on “specific,
cogent reasons.” They must not rest on “speculation, conjecture
or . . . otherwise unsupported personal opinion.” Dia v.
Ashcroft, 353 F.3d 228, 250 (3d Cir. 2003) (en banc). Similarly,
adverse credibility findings may not rest upon minor
inconsistencies that do not go to the “heart of the asylum claim.”
 Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002) (quoting
Ceballos-Castillo v. INS 904 F.2d 519, 520 (9th Cir. 1990)).

 III. We Lack Jurisdiction to Review the Asylum Claim.

      Issiaka concedes that we do not have jurisdiction to
review the agency’s determination that his asylum petition was
untimely. See 8 U.S.C. § 1158(a)(3); Sukwanputra v. Gonzales,

                               -5-
434 F.3d 627, 633 (3d Cir. 2006). Thus, we review only the
agency’s denial of withholding of removal and his claim for
protection under the CAT.

           IV. Adverse Credibility Determination

       In its brief per curiam opinion, the Board found no clear
error in the IJ’s adverse credibility determination. The Board
explained:

       [T]he Immigration Judge found the respondent’s
       testimony regarding his head wounds lacks
       credibility because of his inability to reasonably
       describe his injury []. The respondent testified
       that a doctor gave him pain killers for his injuries,
       though he failed to testify that he received stitches
       []. In addition, the respondent failed to mention
       in his Statement that he sought medical treatment
       []. We find that the Immigration Judge’s
       credibility analysis comports with the standards
       applicable in the United States Court of Appeals
       for the Third Circuit . . . .

App. 2 (record citations omitted). That adverse credibility
determination provided the sole ground for denying Issiaka’s
petition for withholding of removal. After reviewing the record,
we conclude that the reasons given to justify rejecting Issiaka’s
testimony are not supported by substantial evidence.

      With regard to his head wounds, Issiaka’s written
statement in support of his application for relief states as

                                -6-
follows:

      They threw my brother and me on the pile of dead
      bodies. They took wood from the trees and began
      beating us with the sticks. I suffered cuts to my
      forehead, the top of my head, and my shin. . . . I
      was taken [by a family friend] to my friend’s
      house in San Pedro, and cleaned up my wounds.
      I had been cut on the forehead, on the top of my
      head, and on my shin when the soldiers were
      beating me at the army camp. . . . I did not try to
      leave from San Pedro at that time, as I feared that
      the army would find me on my way out. It took
      me about a month or two to get better and heal.

App. 207-208.

       At the hearing before the IJ, the following exchange
occurred about Issiaka’s wounds:

       ISSIAKA: Because I have a, I have, because I have
beaten by the military on my head and they have wounded.
That’s why I needed the medication.
       JUDGE: What was wrong with your head?
       ISSIAKA: That’s what you can see it’s --
       JUDGE: Does he have a scar on his head?
       PETITIONER’S COUNSEL: Yes.
       ISSIAKA: Yes, I have the scar you can see that.
       JUDGE: I can kind of see it from here. All right . . . .

                            ***

       JUDGE: Describe the head wound that you said you
suffered?
       ISSIAKA: I did not understand the question.
       JUDGE: You said you, you showed me a head scar first

                              -7-
of all. It might be eight inches long, I’m not real clear from
here. Why don’t you come up here and let me look at your
head.
        ISSIAKA: Yeah, not a problem.
        JUDGE: Okay, show me where the scar is. Are you
talking about this here? Oh, well, let me see. Okay, now not
eight inches but yeah, there are scars on his head.
        JUDGE: (To counsel for the government) You want to
look at it? Maybe about two inches here and there. Okay, yeah.
        JUDGE: (To Issiaka) Okay, I want you to tell me then,
what did the original wound look like that you have scars like
that? What did your original wounds look like?
        ISSIAKA: You mean, you, you, you like to know how
I was wounded? I did not understand the question.
        JUDGE: Right. What did it look like after they beat you
in the head with a stick? What did your head look like?
        ISSIAKA: I was bleeding all over the body I was
covered.
        JUDGE: So were they open gashes in your head? Open
wounds or what? Or was it just a bump. You must know what
your wounds looked like, okay, and this is important.
        ISSIAKA: Yes, they were really open wounded.
Anybody could see and see that it was wounded.
        JUDGE: How many open wounds did you have on your
head from the stick that they beat you with?
        ISSIAKA: I had three wound on my head and I have one
on my foot.
        JUDGE: And how deep were they do you know, about?
        ISSIAKA: Deep?
        JUDGE: Did you look in the mirror when you got to your
friend’s house to see what your head looked like at any time? Or
while the colonel was driving you to San Pedro.
        ISSIAKA: Yes. Oh, they were serious, very serious.
        JUDGE: So tell me what the wound looked like, what
these head wounds looked like?
        ISSIAKA: It was very serious, very, very deep wounded

                              -8-
and my brother helped me clean up the wounded. I don’t know
how I can explain it but it was very serious.
       JUDGE: You can’t describe what you saw in the mirror.
Did you look in the mirror at the head wounds at any time?
       ISSIAKA: No, that I look myself at the mirror after I had
been treated.
       JUDGE: Oh, okay. So what kind of you said you got
pain killer from the doctor. Anything else from the doctor for
these head wounds?
       ISSIAKA: Yes.
       JUDGE: What else?
       ISSIAKA: He gave me an injection or two.
       JUDGE: Okay, and how did you know you even had
these h[e]ad wounds if you didn’t look in the mirror?
       ISSIAKA: I don’t understand the question.
       JUDGE: You were beaten badly by military with sticks
and you got h[e]ad wounds. How do you know the wounds
were bad enough that you needed treatment?
       ISSIAKA: When I touched it I could tell that there was
wounded.
       JUDGE: What did it feel like when you touched it?
       ISSIAKA: When you touched the wounded if it’s serious
you can tell it, if it’s not serious you can tell it too.

App. 91-95.

       Issiaka explained how he was injured, how many cuts he
believed were on his head, and that the wounds were “serious,”
“deep” and “open.” Moreover, he repeatedly said that he did not
understand the IJ’s questions. That is certainly understandable;
we have difficulty understanding them too. The IJ kept pressing

                              -9-
Issiaka to provide more detail about his wounds, and the Board
cited Issiaka’s failure to be more specific as support for
affirming the IJ’s denial of relief. However, it is not the least bit
apparent what additional explanation or description the IJ or the
Board thought Issiaka could provide. The adverse credibility
determination is especially puzzling because the IJ examined
Issiaka’s head and acknowledged that he had scars. From the
testimony quoted above, it certainly appears that the scars were
significant and consistent with serious injuries, not a “bump” as
the IJ’s questioning suggested.

        Issiaka also provided photographs of himself with
bandages on his head. The IJ accepted that evidence although
she questioned why Issiaka was bald in some of the pictures and
had hair in others. Issiaka explained at the hearing that the
pictures were taken approximately two months apart. App. 112-
13. That not only explains why he would have hair in some of
the pictures and be bald in others, it is absolutely consistent with
the supporting statement in his application that it took “about a
month or two to get better and heal.” App. 208. Moreover, if
he was examined by someone after the beating, it is reasonable
to assume that the person examining him would have had to
shave his head. It is therefore troubling that the IJ concluded
that the fact that Issiaka had hair in some pictures and was bald
in others somehow undermined Issiaka’s credibility. We can
not help but think that a neutral assessment of that evidence
would have corroborated his testimony, not weakened it.

        Thus, there is no basis for the Board’s conclusion that
Issiaka “lack[s] credibility because of his inability to describe
his injury.” It is hard for us to imagine how one would describe

                                -10-
a bleeding head wound (or wounds) other than to say that he
was bleeding from the head after being hit on the head with
sticks. That is what Issiaka said. The IJ’s insistence that Issiaka
testify about how “deep” his wounds were is not only illogical,
it is more consistent with an effort to undermine his credibility
than to fairly assess it.1 Not surprisingly, (and to its credit), at
oral argument before us, even counsel for the government had
to concede that this ground for disbelieving Issiaka was
troubling.

         We are also at a loss to understand the Board’s concern
that “[Issiaka] failed to testify that he received stitches.” His
petition does not say he received stitches, nor did he testify that
he received stitches. He did testify that his friend helped him
clean his wounds, and that a doctor gave him some pills for pain
and an “injection or two.” Issiaka’s failure to testify that he
received stitches is neither puzzling nor suspicious. We doubt
that stitches are always appropriate for all head wounds, and not
everyone who needs stitches is fortunate enough to have access
to that level of treatment. Moreover, even “if best practices”
would require that Issiaka receive stitches, there is nothing here
to suggest that he had access to that kind of medical care. He
was, after all, in rural West Africa, and it appears that the IJ
never even considered that circumstance or context before
drawing a negative inference from Issiaka’s failure to say that he
received stitches.2 Neither the Board nor the IJ should expect

       1
         A head wound is not, after all, a wound to a fleshy
part of the anatomy.
       2
         Furthermore, it is unclear from the record how much
time elapsed between the beating and Issiaka’s meeting with a
doctor. If a significant time passed, it may be that stitches
would have been inappropriate even if they were otherwise
indicated. Yet, the IJ never considered that when attaching
significance to the absence of testimony about stitches.

                               -11-
Issiaka to have access to the kind of medical attention that is
taken for granted in the United States.3

        We realize that Issiaka did not mention that he received
any treatment in his asylum petition. However, that is an
exceedingly minor omission given the nature of the beatings that
he did describe, and the minimal medical attention he received
sometime later. Moreover, the statements in his petition are
internally consistent. Had Issiaka failed to mention a long stay
in a hospital or a major surgical procedure in his petition,
skepticism would have been justified. However, failing to
mention that a wound was cleaned and that he received pain
killers doesn’t strike us as an “inconsistency.” See Senathirajah
v. I.N.S. 157 F.3d 210, 221 (3d Cir. 1998) (“The procedures for
requesting asylum and withholding of deportation are not a
search for a justification to deport.”)

       V. Issues on Remand - Quality of Translation

        The Board’s affirmance rested primarily on the adverse
credibility determination that we have just discussed and found
wanting. Nevertheless, the IJ enumerated some additional
grounds for disbelieving Issiaka’s testimony we must determine
if the record as a whole contains substantial evidence to support
the denial of relief. However, it is difficult for us to review the
remainder of the record because of the poor quality of the
translation and transcription. The portion of the transcript
reproduced above demonstrates some of the less serious
difficulties the judge, translator and petitioner were having


       3
         This is particularly true when we consider that
nothing in Issiaka’s testimony suggests that the environment
in which he finally received medical attention may well not
have been the kind of sterile field that would have allowed
sutures.

                               -12-
communicating with each other. The difficulties are better
illustrated by the following exchange:

        JUDGE: All right, and Jabadi Kaulfa knew Colonel Bata
Yoko (phonetic sp.)?
        ISSIAKA: Huh?
        JUDGE: A colonel drove you to Jabadi’s house, is that
correct? Can you understand the interpreter?
        GOVERNMENT COUNSEL4: I think that question was
misstated.
        JUDGE: Yeah, and I don’t even speak French.
        INTERPRETER: (To Judge) Yes. Can you repeat that
question.
        JUDGE: Yes.
        JUDGE: (To Issiaka) You stated in your application that
a Colonel Bata Yoko drove you to San Pedro?
        GOVERNMENT COUNSEL: Judge, may I clarify for
the interpreter?
        JUDGE:Yes.
        ISSIAKA: Yes.
        JUDGE: Okay, so did Jabadi see the colonel when he
dropped you off?
        ISSIAKA: Yes.
        JUDGE: Okay. And why didn’t you put in your
application anything about you were treated by a doctor for your
wounds?

        GOVERNMENT COUNSEL: That question needs to be
clarified.
        ISSIAKA: I did not understand that question.


       4
        Although counsel for the government, Ms. Dussek,
speaks some French, there is nothing to establish her degree
of fluency or whether she is familiar with any unique or
accent that may have been involved.

                              -13-
       JUDGE: Okay. How well are you understanding our
interpreter?
       ISSIAKA: I don’t have any problems.
       JUDGE: (To Interpreter) Okay, how well do you
understand him?
       INTERPRETER: I don’t have any problem either.
       JUDGE: Okay. But he keeps not understanding me but
I don’t know. If you’re translating my English okay I don’t
understand why he doesn’t, you know, understand my question.
I’m talking to you. Is French your first language?
       INTERPRETER: Yes.
       JUDGE: What country are you from?
       INTERPRETER: Rwanda. The only problem is accent,
no offense, but we do understand each other.
       JUDGE: (To Counsel for Issiaka) Okay, you don’t have
any objections to our interpreter here?
       COUNSEL FOR ISSIAKA: For the time being, no.

App. 95-97.

        Issiaka’s attorney failed to object to the problems with
translation during the hearing, and also failed to raise any issue
about the quality and accuracy of the translation before the
Board. Nevertheless, it is readily apparent from reading the
transcript that there were translation problems somewhere
between Issiaka, the translator and the questioner. For example,
more often than not, Issiaka’s answers were not responsive to
the question asked as it appears in the transcript. Although this
could be evidence of evasiveness, given the number of times
that Issiaka answered “I don’t understand,” the IJ should have
been alerted to the very real possibility of a communication
problem between Issiaka and the translator.5 Here, the IJ was


       5
       Towards the end of the hearing, the translation
problem was brought up again:

                              -14-
clearly aware of this problem and elected to continue with the
hearing anyway.

      Because of the apparent problems with translation and



               GOVERNMENT COUNSEL: (To
       Issiaka) So why did you leave your documents
       with your employer for more than four years,
       your former employer? Why would he have
       your ID documents for work for four years? Do
       you know?
               ISSIAKA: I didn’t meant that because I
       left and I left my bag on the table. I didn’t
       thought it was a problem.
              GOVERNMENT COUNSEL: But you said you
      needed these documents in case anything happened to your
      parents. Isn’t that true?
              ISSIAKA: Yes, but I was always in a Abidjan.
              GOVERNMENT COUNSEL: Well, you, you returned
      to your former employer after 1998 exactly?
              GOVERNMENT COUNSEL: (To the Judge) The only
      problem with the translation is the numbers is that the, the
      interpreter uses the Swiss numbers for 90 –
              JUDGE: Uh-huh.
              GOVERNMENT COUNSEL: And that’s why he has
      trouble understanding the, the 90 numbers. But he’s corrected
      himself several times, which is good.
              JUDGE: Okay.
              INTERPRETER: (To Counsel for the government)
      Yeah, I’m sorry. He, he has French. I just cannot get French.
              GOVERNMENT COUNSEL:                 Right.
              INTERPRETER: Could you please repeat the
                                   question?

App. 123-124.

                             -15-
transcription we are reluctant to rule on the IJ’s remaining
justifications for doubting Issiaka’s credibilty.        The IJ
concluded that Issiaka “failed to reliably and reasonably prove
his identity” or provide an adequate explanation of how he
obtained copies of his family’s identification cards or why he
could not produce the originals. The IJ was also concerned at
Issiaka’s failure to provide written corroboration of his story
from the friend he stayed with after fleeing Abidjan.6 Yet, we
cannot conclude that these findings are adequately supported by
substantial evidence because the written record is too muddled
to allow intelligent review.7 The Court of Appeals for the Ninth


       6
         The IJ found that Issiaka’s asylum petition was not
timely filed because port records showed that the ship that
arrived on the date Issiaka claimed his ship arrived embarked
from a different city than Issiaka had reported. The IJ
therefore found that Issiaka had not proved that his petition
was filed within one year of his arrival in the United States.
Neither the IJ nor the Board cited this discrepancy as a reason
for disbelieving any other part of Issiaka’s story. Issiaka did
provide medical records and affidavits from persons he met
upon his arrival in Philadelphia that support his story of
arriving as a stowaway.
       7
           Other examples of the garbled nature of the transcript
include:

        ISSIAKA: My father was a driver and my mother was
alone in the house and she has been killed because of the
politics.
        JUDGE: Well, what happened?
        ISSIAKA: It’s because my father was (indiscernible)
driver and December 10th when left the (indiscernible) to
come to Abidjan and then, 19th December, 2002 they were
careful, very, very careful in the city President (indiscernible)
was (indiscernible) in the city.


                                -16-
Circuit has held that even where no due process violation has
been raised, “faulty or unreliable translations can undermine the
evidence on which an adverse credibility finding is based.” He
v. Ashcroft, 328 F.3d 593, 598 (9th Cir. 2003) (citing
Balasubramanrim v. INS, 143 F.3d 157, 162-64 (3d Cir. 1998).
We agree, and we think this is such a case. See also Kaita v.
Att’y Gen., 522 F.3d 288 (3d Cir. 2008) (vacating adverse
credibility determination where record showed obvious
translation problems and portions of the record were essentially
unintelligible).



App. 100. And:

        JUDGE: And when the colonel found [the bag], what
did it contain, if you knew?
        ISSIAKA: All my IDs.
        JUDGE: Including your family’s IDs, your brother’s
ID, your mother’s ID and your father’s ID?
        ISSIAKA: Yes. I had none, only my brother I had no
sister.
        JUDGE: Well, all you provided are copies. So were
there original identification cards in that bag when you
received it?
        ISSIAKA: Yes.
        JUDGE: And so what did you do with the original
identification cards?
        INTERPRETER: He did not understand the question.
        ISSIAKA: I lost one of the originals. I lost many of
the old, even the photo I was looking for I couldn’t find it.
        JUDGE: Which one did you lose? Who’s [sic]
identification card did you lose?
        ISSIAKA: When I, when I lost my ID in 1992, when I
lost my ID in 1998 and that’s the document they had to
renew. The original from this copy I lost it.

App. 106.

                              -17-
        On remand, we strongly encourage the government to
ensure that an interpreter who is familiar with Issiaka’s native
language, dialect of French and any accent. We are all
sufficiently familiar with how strong accents can interfere with
understanding one’s own language. We do not know if that is
what happened here, but it is clear that the record does not lend
itself to the kind of review to which both Issiaka and the
government deserve.

                          VI. Remedy

        Because the adverse credibility finding is not supported
by the record, we will grant the petition for review. However,
we are not able to determine if Issiaka is entitled to relief from
removal because of the problems we have identified with the
transcript. Accordingly, we will remand to the Board for further
proceedings consistent with this opinion. If further development
of the record is required, we strongly encourage that the Board
remand the matter to a different IJ. See Sukwanputra, 434 F.3d
at 638. The prosecutorial manner of this IJ during Issiaka’s
hearing and the inquisitorial inquiry that underpins some of the
IJ’s reasons for rejecting Issiaka’s credibility cause us to
conclude that everyone is better served by having another “pair
of eyes” evaluate Issiaka’s credibility if the Board concludes
that the record must be developed further.




                              -18-
