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


12-18-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3216




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                                                        NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                            No. 06-3216




                     SALAME BAGAGNAN,
                                    Petitioner
                              v.

      ATTORNEY GENERAL OF THE UNITED STATES,
                                Respondent




                On Petition for Review of an Order
               of the Board of Immigration Appeals
                        (No. A79-306-936)
             Immigration Judge: Hon. Alberto Riefkohl


             Submitted Under Third Circuit LAR 34.1(a)
                        December 10, 2007

Before: SLOVITER, AMBRO, Circuit Judges, and RESTANI * , Judge


                     (Filed: December 18, 2007)


                             OPINION




         *
           Hon. Jane A. Restani, Chief Judge, United States Court of
  International Trade, sitting by designation.
SLOVITER, Circuit Judge.

       Salame Bagagnan petitions for review of an order of the Board of Immigration

Appeals (“BIA”) supplementing and affirming the decision of the Immigration Judge

(“IJ”), who denied Bagagnan’s requests for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). This court has jurisdiction to review the

final agency order under 8 U.S.C. § 1252. For the reasons stated below, we will deny

Bagagnan’s petition.

                                             I.

       As we write for the parties, we set forth only those facts necessary to our analysis.

Bagagnan, a native and citizen of Burkina Faso, entered the United States on a visitors

visa on or about August 18, 1999. On March 8, 2002, Bagagnan was issued a Notice to

Appear, charging him as removable as an alien who, by fraud or wilfully misrepresenting

a material fact, seeks to procure a visa for admission to the United States. See 8 U.S.C. §

1182(a)(6)(C)(i).

       On October 16, 2002, Bagagnan filed an asylum application with the Immigration

Court. Bagagnan conceded removability before an IJ, but stated his intent to pursue an

application for withholding of removal and protection under the CAT. Bagagnan also

stated his intention to apply for asylum, but withdrew this application following an off-

record consultation with counsel. According to Bagagnan, he had refused to authorize the

circumcision of his two daughters, who live in Burkina Faso, and as a result, his paternal



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uncle had threatened to kill him. Bagagnan also explained that he had not filed for

asylum prior to October 16, 2002, because until that time he had been married to a United

States citizen.

        Between his written statements and his testimony, Bagagnan’s evidence contained

numerous and significant discrepancies. While Bagagnan attributed these to translation

errors, the IJ identified them as inherent contradictions that undermined Bagagnan’s

credibility. Bagagnan’s oral testimony that he was asked to circumcise his daughters in

1998 conflicted with his written statement that he was first asked to circumcise his eldest

daughter in 2002 when she turned seven. Additionally, the IJ determined that Bagagnan’s

fear of persecution was belied by the fact that he lived in the United States for three years

before applying for asylum. Finally, the IJ found that Bagagnan failed to present

corroborating evidence that Burkina Faso grants to fathers the authority to refuse to allow

their daughters to be circumcised, or that fathers would be harmed for such refusal. For

these reasons, the IJ made an adverse credibility determination, finding that Bagagnan

had provided incredible and uncorroborated testimony. Accordingly, the IJ denied

Bagagnan’s requests.

       The BIA dismissed Bagagnan’s appeal, adopting the IJ’s decision and providing

further analysis in support of dismissal. The Board also found that Bagagnan had failed

to establish that he had filed for asylum within one year of arrival in the United States, or

that he qualified for an exception to the filing deadline.



                                              3
                                              II.

       We review the IJ’s determination that Bagagnan’s claims were not credible under

the substantial evidence standard. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).

Under this standard, we uphold the agency’s credibility determinations, “unless any

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

In this case, the Board adopted the IJ’s decision, and supplemented it with further

analysis. Thus we will review the IJ’s decision, as well as the Board’s. See Wang v.

Attorney General, 423 F.3d 260, 267 (3d Cir. 2005).

                                             III.

       Bagagnan contends that the IJ erred in denying his application for withholding of

removal and relief under CAT, and that the Board abused its discretion by affirming that

decision. The record does not support Bagagnan’s challenge. At the heart of Bagagnan’s

story is the alleged request that Bagagnan allow the circumcision of his daughters, and the

alleged threats that followed his refusal to do so. It is therefore significant, as we noted,

that Bagagnan provided inconsistent testimony regarding the date of this request. In his

written statement, Bagagnan stated that this request occurred when his eldest daughter

was seven, but that was in 2002, at which time Bagagnan was living in the United States.

Similarly, although Bagagnan testified that his uncle allegedly threatened to kill him, he

somehow failed to mention this critical issue in his written statement. Bagagnan asserts

that these gaps and discrepancies were caused by his translator, as well as his poor



                                              4
recollection of dates. It strains credibility to attribute a four-year, continent-spanning

discrepancy to communication error, much less the workings of a faulty memory.

Moreover, as Bagagnan’s written statements were prepared with the help of counsel, it is

even less likely that an integral issue–the alleged threats made by Bagagnan’s paternal

uncle–would be omitted from his written statement altogether.

       In any event, even if Bagagnan’s testimony were credible, it does not follow that it

was sufficient to meet his burden of proof. See Obale v. Attorney General, 453 F.3d 151,

163 (3d Cir. 2006); Abdulai v. Ashcroft, 239 F.3d 542, 553 (3d Cir. 2001). Although

persecution may be proven by testimony alone, “the BIA may sometimes require

otherwise-credible applicants to supply corroborating evidence to meet their burden of

proof.” Abdulai, 239 F.3d at 554.

       Bagagnan failed to provide evidence that corroborates his claim that fathers in

Burkino Faso–let alone fathers who are not members of the family circle–can refuse to

allow their daughters to be circumcised, nor did he substantiate his claim that threats are a

consequence of such refusals. These issues are critical to Bagagnan’s claims, and he was

given notice of this fact by the IJ. Nonetheless, in his appeal to the Board, Bagagnan

failed to come forward with such evidence or explain its unavailability. Accordingly, the

record does not compel reversal of the agency’s determinations. Similarly, we also reject

Bagagnan’s argument that the Board failed to evaluate properly his evidence and thus

violated his due process rights. Rather, we are satisfied that the Board’s decision was



                                               5
supported by a constitutionally sufficient analysis, which applied the applicable law to the

proffered facts. Thus, we will deny Bagagnan’s petition for review.




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