                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-9-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2598




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                                                             NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                     NO. 03-2598


                                  SAMBOU SYLLA,

                                                      Petitioner

                                           v.

                                 JOHN ASHCROFT,
                         Attorney General of the United States,

                                                      Respondent


                          On Petition for Review of an order
                         of the Board of Immigration Appeals
                                    (A29-851-683)


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   May 28, 2004

       Before: SCIRICA, Chief Judge, FISHER, and ALARCÓN * , Circuit Judges

                                 (Filed: June 9, 2004)


                             OPINION OF THE COURT

ALARCÓN, Circuit Judge.



   *
      Hon. Arthur L. Alarcón, Senior Judge, United States Court of Appeals for the
Ninth Circuit, sitting by designation.
       Petitioner Sambou Sylla, a native of Mali, appeals from an order of the Board of

Immigration Appeals (“BIA”) denying his application for asylum under 8 U.S.C.

§ 1158(a), withholding of removal under 8 U.S.C. § 1231(b)(3)(A), withholding of

removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, opened for signature Dec. 10, 1984, art. 3, S. Treaty Doc. No.

100- 20 (1988), 1465 U.N.T.S. 85 (entered into force June 26, 1987), and voluntary

departure. We hold that the government presented sufficient evidence of changed country

conditions to rebut any presumption of a well-founded fear of future persecution based on

past persecution. We also conclude that Mr. Sylla has not established that it is more

likely than not that he would be subject to torture if he returned to Mali. We do not have

jurisdiction to consider Mr. Sylla’s claim requesting voluntary departure.

                                             I

       Mr. Sylla is a black Tuareg who was raised in the Tuareg region of Mali. He fled

Mali in 1989 to Niger after allegedly being kidnaped and forced into a labor camp by a

white Tuareg rebel band. He entered the United States from Niger on or about May 12,

1990, pursuant to a non-immigrant B-1 visa. On June 2, 1998, the Immigration and

Naturalization Service (“INS”)1 issued a notice to appear to Mr. Sylla, charging him with



   1
    In March 2003, the Department of Justice transferred the functions of the INS to the
newly created Department of Homeland Security. See Homeland Security Act of 2002.
Pub.L. No. 107-296 § 471, 116 Stat. 2135 (2002). Because Mr. Sylla filed his petition for
review prior to 2003, we refer to the INS, rather than to the Department of Homeland
Security.

                                             2
being removable from the United States after he had remained in this country longer than

permitted by his non-immigrant visa.

        Mr. Sylla appeared before an Immigration Judge (“IJ”) on September 3, 1998 for

removal proceedings. Mr. Sylla admitted the allegations in the notice to appear and

conceded removability. At the hearing, Mr. Sylla applied for asylum, withholding of

removal and relief under the Convention Against Torture, and in the alternative, he

requested voluntary departure. The IJ designated M ali as the country of removal.

        Proceedings on M r. Sylla’s application to remain in the United States were

conducted on August 4, 2000. Mr. Sylla testified that he worked on his family’s land in

Gao as a camel herder until 1988, when violence broke out nearby. In January 1989, a

group of white Tuareg rebels, in revolt against the Malian government, took all of the

Sylla family camels and kidnaped him. The rebel band brought him to a settlement

located 10 kilometers from his home in Gao and forced him to care for the camels in the

camp.

        Four months later, the Malian army raided the Tuareg camp, killing both black and

white Tuaregs. Mr. Sylla testified that during the attack he was brutally beaten and

stabbed by members of the Malian army. Mr. Sylla presented evidence from a 1999

medical exam performed in the United States that confirmed that his injuries were

consistent with knife wounds.

        Shortly after the attack, Mr. Sylla fled from Mali to Niger in 1989. Mr. Sylla’s



                                              3
parents also fled to Niger in 1992, his sisters to Niger and Gabon, and a brother to France.

No member of his family has returned to Mali.

       In response to Mr. Sylla’s testimony, the Government offered the United States

Department of State Country Report on Mali for 1997, 1998, and 1999 to demonstrate

that conditions in Mali have changed since 1989. The Reports indicated a significant

improvement in relations between the Malian Government and the Tuareg ethnic groups

since 1989. The 1997 Report noted that “[t]he UNHCR [United Nations High

Commissioner for Refugees] successfully completed the repatriation of Malian refugees

displaced by the Tuareg rebellions of the early 1990’s.”

       The IJ found that Mr. Sylla’s testimony was not credible, and denied his petition

on that basis. “Assuming arguendo that [Mr. Sylla] had been credible,” the IJ found in

the alternative that Mr. Sylla was not subjected to past persecution on account of any of

the grounds listed in 8 U.S.C. § 1101(a)(42), 2 and that he had not demonstrated a well-

founded fear of future persecution because country conditions have changed in Mali.

Having denied Mr. Sylla’s application for asylum, the IJ also denied relief under the more

stringent standards for withholding of removal and the Convention Against Torture. The

IJ also found that Mr. Sylla was not entitled to voluntary departure.




   2
    8 U.S.C. § 1101(a)(42) provides, in relevant part, that a “ refugee” is defined as:
“any person . . . unable or unwilling to return to . . . [his or her] country because
of persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion. . . .”
                                             4
       Mr. Sylla filed a timely notice of appeal of the IJ’s decision with the BIA. The

BIA affirmed the decision of the IJ without opinion pursuant to 8 C.F.R. § 3.1(a)(7)

(redesignated as 8 C.F.R. § 1003.1(a)(7) (2003)). We have jurisdiction over this timely-

filed petition for review.

                                             II

                                             A.

       Mr. Sylla first contends that the BIA’s practice of affirmance without opinion and

use of streamlining regulations violates the fundamental rules of administrative law by

failing to provide him with a reasoned explanation of the agency’s final decision. This

court reviews de novo pure questions of law. Patel v. Ashcroft, 294 F.3d 465, 467 (3d

Cir. 2002).

       This court recently rejected a similar argument in Dia v. Ashcroft, 353 F.3d 228

(3d Cir. 2003) (en banc). In Dia, the petitioner also challenged the BIA’s administrative

practice of affirming the decisions of IJ’s without opinion. Id. at 234. This court stated

in Dia that the INA “left all procedural aspects of the BIA, especially how it hears cases,

entirely to the Attorney General’s discretion.” Id. at 237. This court concluded in Dia

that “in promulgating the streamlining regulations, the Attorney General did not run afoul

of the INA.” Id. at 238. Accordingly, under the law of this circuit, Mr. Sylla’s

administrative challenge is without merit. Id.

                                             B.



                                             5
       Mr. Sylla also contends that the affirmance of the IJ’s order without opinion was

an abuse of discretion, and violated his right to due process, by failing to provide this

court with an explanation of the reasoning behind the BIA’s decision so that we can

conduct an individualized and meaningful review of the agency’s actions. This court

reviews de novo whether the BIA violated a petitioner’s due process rights. Chong v.

District Director, INS, 264 F.3d 378, (3d Cir. 2001). This question was resolved in Dia.

In that matter, this court stated “[a]ll that is required for our meaningful review is that the

agency–as represented by an opinion of the BIA or IJ–put forth a sufficiently reasoned

opinion.” Dia, 353 F.3d at 243. In denying Mr. Sylla’s application, the IJ set forth a

sufficiently reasoned opinion. “While in many instances knowing the BIA’s reasoning

might prove helpful to our review, the BIA’s failure to express it does not amount to a

constitutional violation.” Id.

                                              III

       Mr. Sylla also challenges the IJ’s decision on the merits, contending that his

petition for review should be granted because substantial evidence does not support the

IJ’s finding that his testimony was not credible. Mr. Sylla alleges that he was subject to

past persecution in Mali because of his membership in the black Tuareg group. Pet’r Op.

Brief at 22. M r. Sylla also contends that he fears persecution if he is returned to M ali

based on the severity of his past persecution. We review the BIA’s decision that an alien

has not established eligibility for asylum to determine whether it is supported by



                                               6
substantial evidence. Xie v. Ashcroft, 359 F.3d 239, 246 (3d Cir. 2004). Where the BIA

has adopted the IJ’s reasoning without opinion, this court also reviews the IJ’s decision

under the same standard. Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003). The

substantial evidence standard requires this court to grant a petition only if the evidence in

the record is so strong that it compels a contrary conclusion. Ahmed v. Ashcroft, 341

F.3d 214, 216 (3d Cir. 2003).

       After reviewing the record, we conclude that the IJ’s adverse credibility

determinations were not supported by substantial evidence. The IJ based his adverse

credibility determination on speculation, personal belief, and impermissible inferences.

For example, the IJ commented that Mr. Sylla’s testimony that his father did not resist his

kidnappers in the face of their guns “is not particularly plausible to the Court insofar as

the Court would at least expect a father to protest in some fashion, not withstanding [sic]

the fact that the kidnapers had guns, the fact that they were taking his son.” “Adverse

credibility determinations based on speculation or conjecture, rather than on evidence in

the record, are reversible.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).

       In addition, the IJ emphasized inconsistencies in M r. Sylla’s testimony that were

minor and likely based on misunderstanding, as opposed to any genuine inconsistency in

Mr. Sylla’s testimony. For example, the IJ made much of the fact that Mr. Sylla first

testified that he worked as a camel herder and then later spoke of his work on a farm.

The IJ commented that “the respondent’s affidavit reflects that his (sic) spent most of



                                              7
time as a camel herder which does not comport with him telling me that he was a farmer.”

This court stated in Gao that “minor inconsistencies and minor admissions that reveal

nothing about an asylum applicant’s fear for his safety are not an adequate basis for an

adverse credibility finding. The discrepancies must involve the heart of the asylum

claim.” Gao, 299 F. 3d at 272 (internal citations omitted). Whether Mr. Sylla worked as a

camel herder or a farmer does not go to the heart of his claim of persecution at the hands

of white Tuaregs. It is also plausible that a camel herder would refer to his job site as a

camel “farm.” In either case, the IJ’s adverse credibility finding is not supported by

substantial evidence.

                                              IV

                                              A.

       Because the IJ made findings in the alternative, we review those findings for

substantial evidence. See Guo v. Ashcroft, 361 F.3d 1194, (9th Cir. 2004) (holding that

where an appellate court determines that an adverse credibility finding is not supported by

substantial evidence, and the IJ or BIA has made a finding in the alternative as to the

petitioner’s eligibility for asylum, the appellate court is not required to remand the case to

the agency, but may properly review the factual findings in the first instance). We need

not, however, determine whether Mr. Sylla presented substantial evidence that he was

subjected to past persecution in M ali on account of his ethnic group because the IJ

determined that the Government established by a preponderance of the evidence that



                                              8
conditions in Mali have changed since Mr. Sylla left in 1989. The IJ found that his fear

of future persecution is no longer reasonable. See 8 C.F.R. § 208.13(b)(1) (a showing of

past persecution gives rise to a rebuttable presumption of a well-founded fear of future

persecution); see also Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003) (“That

presumption can be rebutted if the INS establishes by a preponderance of the evidence

that the applicant could reasonably avoid persecution by relocating to another part of his

or her country or that conditions in the applicant’s country have changed so as to make his

or her fear no longer reasonable.”).

       The Country Reports from 1997, 1998, and 1999 indicate that conditions in M ali

have improved following various peace agreements in 1995, including an integration of

Tuareg rebel forces into the Malian army. Dr. Smith testified that “[a]s of 1995, there has

been a treaty [between the Tuaregs and the Malian government] in place that has large[ly]

been respected.” The IJ’s determination that the Government had established by a

preponderance of the evidence that country conditions have changed in Mali such that

Mr. Sylla’s fear of future persecution is no longer reasonable is supported by substantial

evidence. The IJ also correctly noted that because Mr. Sylla failed to demonstrate a

reasonable probability of future persecution, he does not meet the more stringent standard

required for withholding of deportation. See Mulanga, 349 F.3d at 132 (“[I]f an alien

fails to establish the well-founded fear of persecution required for a grant of asylum, he or

she will, by definition, have failed to establish the clear probability of persecution



                                              9
standard for withholding of removal”).

                                             B.

       With respect to Mr. Sylla’s claim under the Convention Against Torture, the IJ

found that “based on the respondent’s testimony and evidence in the record . . .

respondent has not shown that he is more likely than not to be tortured if he is removed to

Mali.” “In order to obtain relief under the Convention Against Torture, an applicant must

establish that it is more likely than not that he or she would be tortured if removed to the

proposed country of removal.” Mulanga, 349 F.3d at 132-33 (internal citations omitted).

Because conditions have changed in M ail since 1989, Mr. Sylla has failed to demonstrate

that he is more likely that not to be tortured if he is removed to that country. The IJ’s

determination that Mr. Sylla had not established eligibility for relief under the Convention

Against Torture is supported by substantial evidence. See Tarrawally v. Ashcroft, 338

F.3d 180, 182 (3d Cir. 2003) (holding that the IJ’s finding that petitioner was not likely to

be tortured was supported by substantial evidence where petitioner introduced no

evidence to support either the fact that the government of Sierra Leone detains individuals

re-entering the country, or the fact that the country presumes such individuals to be its

opponents).

                                             C.

       With respect to Mr. Sylla’s request for voluntary departure pursuant to § 1229c(b),

this court lacks jurisdiction to consider his claim. In IIRIRA, Congress provided that



                                             10
“[n]o court shall have jurisdiction over an appeal from denial of a request for an order of

voluntary departure under subsection (b) of this section, nor shall any court order a stay of

an alien’s removal pending consideration of any claim with respect to voluntary

departure.” 8 U.S.C. § 1229c(f); see also 8 U.S.C. §§ 1252(a)(2)(B)(i) (“Notwithstanding

any other provision of law, no court shall have jurisdiction to review . . . any judgment

regarding the granting of relief under section . . . 1229c . . .of this title”); Tovar-Landin v.

Ashcroft, 361 F.3d 1164, 1166 (9th Cir. 2004) (holding that the court of appeals lacked

jurisdiction to review denials of voluntary departure, including statutory eligibility for

voluntary departure pursuant to §§ 1252(a)(2)(B)(i) and 1229c(f)).

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