                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-1-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2450




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-2450
                                      ___________

                                   BOUBOU SAKHO,
                                         Petitioner

                                            v.

                  ATTORNEY GENERAL OF THE UNITED STATES
                     ____________________________________

                          Petition for Review of an Order of the
                           United States Department of Justice
                              Board of Immigration Appeals
                                 (BIA No. A78 226 499)
                            Immigration Judge: R. K. Malloy
                             __________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 16, 2008

      Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges

                                   (Filed May 1, 2008)
                                      ___________

                               OPINION OF THE COURT
                                    ___________

PER CURIAM

       Boubou Sakho petitions for review of an order of the Board of Immigration

Appeals (BIA or Board), which dismissed his appeal of an Immigration Judge’s (IJ’s)

final removal order. For the reasons that follow, we will deny the petition.
                                             I.

       Boubou Sakho apparently entered the United States in 1999. He filed an asylum

application in May of 2000, based on a claim that he was persecuted as a Black

Mauritanian. An asylum officer referred the case to the Immigration Court, and Sakho

was charged with removability for being present without having been admitted or

paroled. A.R. 573. The Notice to Appear also stated that Sakho’s nativity and citizenship

was unknown. Id.

       Following some continuances and a change in venue, a merits hearing was

scheduled for June 13, 2001. Sakho submitted a birth certificate and national identity

card (“First ID Card”) a few days before the hearing. The IJ granted a continuance to

allow Sakho to try to have the documents authenticated by the U.S. Consulate in

Mauritania. A.R. 129. The IJ reminded Sakho that it was his burden to establish his

identity, and noted that “if he can show that he is in fact an African Mauritanian, then

very likely there would be a claim for asylum here.” A.R. 129-30.

       The Government sent the documents to the Forensic Document Laboratory. The

Laboratory issued a report on September 10, 2001, stating that the birth certificate did not

“conform to specimens on file in the INS/FDL reference library and is counterfeit.” A.R.

389. The Laboratory stated that the birth certificate was produced with a photocopier or

laser printer and did not match the “high quality offset printing process used in the

production of genuine birth extracts.” Id. The Laboratory was unable to determine the

authenticity of the First ID Card “due to the lack of sophistication with which the

                                             2
Mauritanian National Identity Cards are produced, as well as the ease of unauthorized

duplication.” Id. The Laboratory noted that the issuance date on the card had been

altered to read “1997.” Id.

       The matter was transferred to another IJ, who granted several continuances to

allow Sakho to try and obtain authentic documents. The IJ also suggested that Sakho

could produce an expert who could testify or submit an affidavit that Sakho was of

Soninke ethnicity from Mauritania. At one point, the IJ dismissed Sakho’s asylum claim

without prejudice, because he had informed the IJ that he planned to marry a U.S. citizen

and would seek adjustment of status. A.R. 161. At a hearing on March 16, 2004, Sakho

informed the IJ that he would not be seeking to adjust status based on marriage and he

produced a “certificate of nationality” and a letter from the Mauritanian Embassy in

Washington, D.C., stating that the certificate of nationality and his national identity card

were genuine. A.R. 520. The Government initially agreed to return to Sakho the national

identity card he had submitted earlier (the First ID Card) so that he could apply for a

laissez-passer document (a passport valid for one trip from the United States to

Mauritania); however, the Government later noticed that the identity card referenced in

the letter from the Mauritanian Embassy as genuine had a different document number

than the First ID Card. A.R. 514. The Government refused to release the First ID Card,

because it might allow Sakho to use a fraudulent or altered document to obtain a valid

document. Id.; A.R. 531.

       In August 2004, Sakho’s attorney noted that he had not been able to obtain the

                                              3
laissez-passer document because Sakho did not have the money to purchase a required

airline ticket back to Mauritania. A.R. 181-82. Sakho also produced the identity card

referenced in the Embassy’s letter (“Second ID Card”). A.R. 183. The Second ID Card,

the certificate of nationality, and the Embassy’s letter, were sent to the Federal

Documents Laboratory for analysis. The Laboratory issued its report on April 13, 2005,

stating that it could not definitively authenticate or refute the Certificate of Nationality,

but did note that there were indications that it was not valid, as “[t]he letterhead, form,

entries, stamp impression and signature were prepared using color inkjet printer

technology.” A.R. 504. The Laboratory was unable to determine whether the Embassy

letter and the Second ID Card were authentic due to a lack of comparable genuine

samples on file.1 Id.

       Proceeding with new counsel, Sakho finally had a merits hearing on June 27, 2005.

At the hearing, he testified that on June 15, 1989 around 3:00 a.m., some military men

came and broke into his family’s home. Upon request, his father produced the family’s

identification papers. The soldiers did not return the papers. They beat up Sakho’s

father, breaking his legs. They tied the family together and put them in a military vehicle.

A.R. 196. They took the family to a jail about 18 kilometers away, where the family was

abused and mistreated. After about a week, they took the family to a river bank and told

them to cross into Senegal. The family had no papers or possessions. They went to a


  1
     The Government attempted to have the Mauritanian Embassy acknowledge that the
letter was authentic, but it failed to respond. A.R. 215-16, 270.

                                               4
refugee camp in Senegal. A.R. 196-97. Sakho left the camp in September 1994 and went

to Dakar to find work. A.R. 197. He worked at the port, and eventually a friend arranged

his passage on a boat to the United States on June 10, 1999. Id. The boat arrived in the

United States, at Baltimore, on July 4, 1999. A friend gave Sakho a bus ticket to New

York, and told him to find someone African to help him there. Sakho located an African

taxi driver who took him to a mosque. A.R. 198-99. Sakho remained in New York until

he moved to Philadelphia in 2001 or 2002. Id.

       The Government pointed out that the affidavit Sakho submitted with his asylum

application stated “we were coming from our farm and just happened on this ugly scene”

of his father being beaten by the military men, A.R. 220-21, 487; but that his testimony

indicated that the incident occurred at 3:00 a.m., when he was home. A.R. 220. Sakho

explained that perhaps the person who helped him fill out the asylum application did not

understand what he was saying. A.R. 221.

       As to the identity documents he submitted, Sakho testified that he got the birth

extract in Senegal from a white man from Mauritania, and that he did not know it was

fake. A.R. 203. Sakho testified that he obtained it to get out of the refugee camp. A.R.

204. The refugee camp did not give Sakho any identity documents, and he made no

attempt to get proof that he lived at the refugee camp. A.R. 203, 217. Sakho testified that

he got the First ID Card in Dakar in order to work, but that he did not know it was fake or

altered. A.R. 207. Sakho testified that when the U.S. Government said the First ID Card

was not real, he asked his mother to send him good documents. The man who had helped

                                             5
him get the birth certificate gave his mother the Second ID Card and she sent it to Sakho.

A.R. 205. Sakho was asked why the Second ID Card said it was issued in 1997. Sakho

replied that he sent a photocopy of the First ID Card to his mother, and they used the

same date. A.R. 208.

       Sakho produced a witness at the merits hearing, Daouda Camara. Camara’s

affidavit stated that he “first met Boubou Sakho in Kaedi, Mauritania in 1988,” in the

summertime. A.R. 526. The affidavit stated that Boubou disappeared in 1989 and that he

did not see him again until he came to the United States in January 2000. Id. However,

when he testified, Camara stated that Boubou’s last name was “Diavira,” and that it was

the only name that he knew him by. A.R. 247-48. Although the affidavit stated that

Camara first met Petitioner in 1988, Camara testified that he first met Boubou at a student

meeting in Mauritania in 1998. He was asked if he was sure of the date, and he noted that

his family was deported in 1989 and he met Boubou around 1998. A.R. 254. Camara

testified that he later met Boubou in Philadelphia in 1999, at an apartment complex on

Walnut Street. A.R. 255-56. However, Sakho had testified that he did not move to

Philadelphia until 2001 or 2002. After Camara testified, Sakho stated that perhaps

Camara had been nervous and he had confused Sakho’s last name with that of Sakho’s

mother. A.R. 260-61. When the IJ asked how Camara would know Sakho’s mother’s last

name, he stated that perhaps Camara had “panicked or forgotten.” A.R. 260-61.

       The IJ denied Sakho’s asylum application, finding that he had “failed to convince

the Court that he is a native and citizen of Mauritania.” A.R. 76. The IJ noted that the

                                             6
First ID Card had been altered, and the birth certificate had been found to be counterfeit.

A.R. 68. The IJ noted that Sakho had failed to get any type of identity document from the

Mauritanian Embassy and that he had not produced any expert to testify that he was from

Mauritania. A.R. 74. The IJ noted the differences between Sakho’s affidavit and his

testimony, and also stated that Sakho’s witness (Camara) was “totally or largely

incredible.” A.R. 72. The IJ also drew an adverse credibility inference from the fact that

Sakho submitted a fraudulent document, based on Matter of O-D-, 21 I&N Dec. 1079

(BIA 1998). A.R. 73-74. The IJ also denied withholding of removal and protection

under the Convention Against Torture, and found that Sakho was ineligible for voluntary

departure. A.R. 76-77.

       The Board of Immigration Appeals dismissed the appeal, finding that the IJ’s

adverse credibility finding was not clearly erroneous. The Board agreed that Sakho’s

submission of an altered identity card and a suspect birth certificate undermined the

credibility of his entire claim. A.R. 2. The Board noted that Sakho submitted a letter

from the Embassy stating that the Second ID Card was genuine, but that the Embassy

failed to respond to the Department of Homeland Security’s requests that they

authenticate the letter. A.R. 2, 214-16, 237-38. The Board also noted the discrepancies

between his asylum application and his testimony, and the discrepancies between Sakho’s

testimony and his witnesses’s testimony. A.R. 3. The Board held that the IJ’s “adverse

credibility ruling provides a sound basis for denying each of the respondent’s applications

for relief from removal . . . .” A.R. 3. The Board noted that Sakho claimed that his due

                                             7
process rights were violated because he was unable to cross-examine the Forensic

Document Examiner who prepared the reports regarding his identity documents, but

found there was “no evidence that he requested that the examiner be subpoenaed or

otherwise called as a witness in this case.” A.R. 3.

         Sakho filed a timely, counseled petition for review of the Board’s decision.2

                                              II.

         In his brief on appeal, Sakho raises two issues. First, he claims that the BIA erred

in affirming the IJ’s adverse credibility finding based on his “inadvertent submission of a

counterfeit document.” Petitioner’s Brief at 11. Second, he claims that his right to due

process was violated because he was not allowed to cross-examine the forensics

document laboratory examiner. Petitioner’s Brief at 20.

         We have jurisdiction to review final orders of removal under section 242(a)(1) of

the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(1), as amended by the REAL ID

Act of 2005. When the Board issues a decision on the merits, we generally review only

the Board’s order. See Li v. U.S. Attorney General, 400 F.3d 157, 162 (3d Cir. 2005);

Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir. 2001). Where the Board adopts the

reasoning of the IJ with some discussion of the bases for the IJ’s decision, we also review

the order of the IJ. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). We review an

adverse credibility determination under the substantial evidence standard. Xie v.



  2
      This Court denied his motion for a stay of removal on June 20, 2007.

                                               8
Ashcroft, 359 F.3d 239, 243 (3d Cir. 2004). We must uphold the credibility

determination of the BIA unless “any reasonable adjudicator would be compelled to

conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Adverse credibility determinations

based on speculation or conjecture, rather than on record evidence, are reversible. Gao v.

Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).3

       Sakho argues that the BIA should not have applied a negative inference regarding

his credibility based on his submission of a fraudulent document. In Matter of O-D-, the

Board held that an IJ was allowed to make a negative inference regarding the credibility

of a Mauritanian who submitted a counterfeit identity card and a “probably counterfeit”

birth certificate to establish his identity and nationality for purposes of an asylum claim.

21 I&N Dec. at 1082-83. In Kourski v. Ashcroft, 355 F.3d 1038, 1039-40 (7th Cir. 2004),

the Court distinguished Matter of O-D-, and held that the Board erred in making an

adverse credibility finding based solely on the alien’s submission of a fraudulent birth

certificate, where the alien testified that he got the document from his mother and that he

did not know it was fraudulent. This argument is similar to one made by Sakho. See

Petitioner’s Brief at 14. However, we find this case is closer to Diallo v. Mukasey, 508

F.3d 451, 454-55 (8th Cir. 2007). In Diallo, the Court noted that “With or without

knowledge of the falsity of a counterfeit identification document, the applicant must still

confront the basic burden of establishing her identity and nationality, which are


  3
   Our review of the IJ’s credibility determinations are not governed by the REAL ID
Act of 2005, as the asylum application was filed before its effective date.

                                               9
legitimately in question.” Id. at 454. As is the case here, the alien in Diallo produced an

identity card that appeared to have been altered, and a forged birth certificate. The Court

distinguished Kourski, noting that the IJ’s adverse credibility finding in the case before it

did not rest solely on the presentation of the questionable documents, but was also based

on disparities between the alien’s testimony and documentary evidence. The Court held

that the adverse credibility finding was supported by substantial evidence. Diallo, 508

F.3d at 455.

       Similarly here, although the BIA held that submission of questionable documents

undermined the credibility of Sakho’s entire claim, it also found that the IJ’s adverse

credibility finding was supported by the conflicting statements provided by Sakho

regarding the mistreatment he experienced in Mauritania, and by the striking

inconsistencies between the testimony of Sakho and that of his witness. A.R. 2-3. We do

not believe that any reasonable adjudicator would be compelled to conclude that Sakho

was credible, and we must therefore uphold the adverse credibility finding.

       As to Sakho’s claim that his right to due process was violated because he was not

allowed to cross-examine the forensics document laboratory examiner, we have reviewed

the record and agree with the BIA’s finding that Sakho never requested that the examiner

be subpoenaed or otherwise called as a witness. In fact, rather than arguing that the

examiner’s findings must be mistaken, Sakho acknowledged that he learned that the birth

certificate and First ID Card were not authentic. A.R. 208, 237. Sakho has thus waived

any right to claim at this point that the examiner’s report was not valid.

                                             10
For the foregoing reasons, we will deny the petition for review.




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