                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-2-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5432




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                                                                     NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                         No. 05-5432

                                      JUDY DORLEY,

                                                       Petitioner

                                              v.

                  ATTORNEY GENERAL OF THE UNITED STATES

                   On Petition for Review of an Order of Removal from
                            the Board of Immigration Appeals
                                U.S. Department of Justice
                        Executive Office for Immigration Review
                                 (BIA No. A94-006-929)

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     April 23, 2007

                    Before: McKEE and AMBRO, Circuit Judges, and
                             ACKERMAN, District Judge*

                               (Opinion filed August 2, 2007)

                                          OPINION

McKEE, Circuit Judge.

       Judy Dorley petitions for review of the decision of the Board of Immigration

Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of her claim for asylum,

withholding of removal, relief under the Convention Against Torture (“CAT”), and



       *
         The Hon. Harold A. Ackerman, Senior District Judge of the United States District Court
for the District of New Jersey, sitting by designation.
voluntary departure.1 For the reasons that follow, the petition will be denied.

                                              I.

       Since we write only for the parties, it is not necessary to recite the facts or

procedural history of this case except insofar as may be helpful to our brief discussion.

The IJ denied Dorley’s application after finding her not credible. The BIA conducted an

independent review of the record and upheld the IJ’s adverse credibility determination

based on contradictions between Dorley’s hearing testimony and her asylum application

as well as internal inconsistencies in her testimony. In addition, the BIA affirmed the IJ’s

conclusion that, even if Dorley had established past persecution, she was ineligible for

relief based on a fundamental change in country conditions in Liberia namely President

Charles Taylor having been deposed in 2003.

       We review factual determinations relevant to an alien’s eligibility for asylum for

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

Substantial evidence is that quantity of evidence that a reasonable mind might accept as

adequate to support a conclusion. Ezeagwuna v. Ashcroft, 301 F.3d 116, 126 (3d Cir.

2002). We defer to the agency’s credibility determination unless it is not reasonably

grounded in the record. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003). Because the

BIA conducted an independent analysis of the record, our review is limited to the BIA’s



       1
       Dorley does not seek appellate review of the BIA’s decision on her claim under the
CAT; thus we will not address it. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 316 n.2 (3d Cir.
2001).

                                               2
final order. Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001).

       The BIA concluded that Dorley’s lack of credibility precluded her from meeting

her burden to establish a claim for asylum. The BIA’s conclusion was based on

inconsistencies that included: Dorley’s inconsistent accounts of the date she became

special assistant to the superintendent of the Liberian Marketing Association, (“LMA”),

the manner in which soldiers allegedly tried to throw her from taxicabs, the implausibility

of her assertion that three LMA members were killed by the Liberian government because

only soldiers carried guns, and her questionable explanation of why she returned to

Liberia despite the past persecution she was alleging.

       The BIA also affirmed the IJ’s conclusion that Dorley fabricated her allegation that

Liberian soldiers raped her. The IJ reached this conclusion, in part, because she first

mentioned the assault at her hearing. Significantly, she failed to mention this allegation

in her affidavit in support of her asylum application, nor did she mention the allegation to

her attorney. We agree that, based on the foregoing, a reasonable factfinder would not be

compelled to conclude that Dorley was credible. See INS v. Elias-Zacarias, 502 U.S.

478, 481 (1992).

       Dorley argues that these inconsistencies should be dismissed as minor or

immaterial. But, they are not so easily ignored. Some of them, though not all, bear

directly on her claim that she was persecuted by the Liberian government based on her

membership in the LMA. The failure to mention the alleged rape is particularly probative

of credibility. We will concede that she may have been reluctant to mention this to a

                                             3
strange immigration official during her initial interview, and that she may have failed to

include it in her affidavit for the same reason. However, we can not so readily ignore the

failure to mention this to her attorney. The omission raises doubts about her credibility.

       Moreover, to the extent that the IJ’s doubt about Dorley’s ability to identify

government actors because they were armed influenced the BIA’s decision, we will

ignore it. Although Liberian society was generally in a state of turmoil, the record is not

adequate to allow a finding that only government agents had guns. Rather, that appears to

be based, at least in part, on the availability of guns in Liberian society. That is not a

reason to doubt Dorley’s testimony about Liberia.

       Nevertheless, the record still supports the BIA’s adverse credibility determination

based upon the numerous inconsistencies in Dorley’s testimony. Even though confusion

or nervousness may have accounted for some of the inconsistencies in her testimony, the

BIA’s skepticism is supported by substantial evidence in the record. See A.R. 158-60.

Moreover, even if Dorley’s testimony is accepted at face value, we would still affirm the

BIA’s ruling because, as the BIA reasoned, the civil upheaval and “persecution” she

refers to clearly stemmed from the administration of Charles Taylor, and he was deposed

in 2003. Accordingly, based on changed country conditions alone, there is substantial

evidence to affirm the BIA and deny the petition for review.

                                              II.

       Dorley also argues that her due process rights were violated by the BIA’s denial of

her request to remand to clarify crucial portions of her testimony that the record denotes

                                               4
are indiscernible, or to further develop the record with evidence in support of her

allegation of that she had been raped. Although there is no constitutional right to asylum,

aliens facing removal are entitled to due process. See Sewak v. INS, 900 F.2d 667, 671

(3d Cir. 1990). In immigration cases, the Due Process Clause entitles an alien (1) “to

factfinding based on a record produced before the decisionmaker and disclosed to him or

her; (2) to be allowed to make arguments on his or her own behalf; and (3) to the right to

an individualized determination of his or her interests.” Abdulai v. Ashcroft, 239 F.3d

542, 549 (3d Cir. 2001) (internal quotations omitted). However, “‘due process challenges

to deportation proceedings require an initial showing of substantial prejudice.’” Khan v.

Attorney Gen., 448 F.3d 226, 236 (3d Cir. 2006) (quoting Anwar v. INS, 116 F.3d 140,

144 (5th Cir. 1997)).

       Here, the fact that several portions of the record denote Dorley’s testimony as

“indiscernible” does not rise to the level of a violation of due process because she can not

demonstrate prejudice. See Ortiz-Salas v. INS, 992 F.2d 105, 106 (7th Cir.1993) (hearing

transcript with hundreds of “inaudible” or “indiscernible” notations did not violate

petitioner’s due process rights). Nor would supplementing the record with evidence in

support of the alleged rape establish prejudice. However, nothing that Dorley could add

would alter the finding of changed conditions because Taylor—the progenitor of her

alleged persecution—has been deposed.

       Accordingly, for the reasons set forth above, we will deny the petition for review.



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