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


3-24-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1497




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                                                          NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                                 No. 03-1497


                            YOUSUFF DUKULY,
                                    Petitioner

                                      v.

                        JOHN ASHCROFT,
             ATTORNEY GENERAL OF THE UNITED STATES,
                                          Respondent




                  On Petition for Review of an Order of the
                   Immigration and Naturalization Service
                      Board of Immigration Appeals
                           (BIA No. A75-838-806)


                           Argued February 25, 2004

           Before: RENDELL, BARRY and FISHER, Circuit Judges.

                            (Filed March 24, 2004)




Daniel G. Anna [ARGUED]
Anna & Anna
533-A Darlington Road
Media, PA 19063
  Counsel for Petitioner
John Ashcroft
Richard M. Evans
Michael P. Lindemann
Daniel E. Goldman [ARGUED]
U.S. Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878, Civil Division
Washington, DC 20044

Michael T. Dougherty
U.S. Department of Justice
Office of Immigration Litigation
1331 Pennsylvania Avenue, N.W.
Washington, DC 20530
  Counsel for Respondent




                              OPINION OF THE COURT


RENDELL, Circuit Judge.

      Yousuff Dukuly, a citizen of Liberia, petitions for review of a decision by the

Board of Immigration Appeals (“BIA”) denying Dukuly’s application for asylum and

withholding of deportation. In so ruling, the BIA affirmed without opinion the findings

of the Immigration Judge (“IJ”) that Dukuly lacked credibility because he provided

inconsistent statements and fabricated documents to the Court, and because he failed to

produce sworn testimony from a key witness. Dukuly timely filed this Petition for

Review. We have jurisdiction under 8 U.S.C. § 1252. We will deny the petition for

review.



                                            2
                                              I.

       Dukuly was the sole witness and he provided a narrative of his experiences. In

1997, after receiving training from the Liberian National Security Agency, he was

assigned to the “VIP Security Section” at a compound occupied by a Liberian

councilman. Dukuly subsequently provided ECOMOG, an African supervisory

organization, with an anonymous tip that a large cache of weapons and ammunition was

being stored at the compound. Consequently, ECOMOG troops invaded the facility,

found the arms and ammunition, and arrested the councilman.

       During the invasion of the compound, Dukuly fled with his family to Guinea.

Upon his return to Liberia a few weeks later, Dukuly was interrogated by a national

security official regarding any part he may have played in informing ECOMOG about the

weapons cache. According to Dukuly, during the course of the interrogation he was

severely beaten and urinated upon by guards. Dukuly was later released and taken to a

friend’s house to recuperate. No one was allowed to visit Dukuly for the following two

weeks except his friend, Thompson Swaray. 1

       Soon after Dukuly recovered from the interrogation, he returned to work at the

request of his employers. At some point thereafter, as Dukuly was driving home from

work, five soldiers in a jeep stopped him and tried to force him into their vehicle.


  1
    “Thompson Swaray” is also referred to as “Thompson,” “Mr. Thompson,” and
“Foumba Swaray” throughout the record. According to Dukuly’s counsel, “Thompson”
is Swaray’s “Christian nickname.” Like the IJ, we will refer to him as “Thompson.”

                                              3
Witnesses immediately informed ECOMOG about the situation, and troops rescued him

from the attempted abduction. Dukuly subsequently went into hiding. He learned from

Thompson that two days later, the same five soldiers and a general invaded Dukuly’s

home. The general allegedly raped Dukuly’s wife, who had just given birth to a child,

and the soldiers stole valuables from the home. Two months later, in June 1997, Liberian

soldiers allegedly captured and raped Dukuly’s sister.2 During that incident, the soldiers

told Dukuly’s sister that her entire family would suffer because Dukuly had disgraced the

councilman by informing ECOM OG about the cache of weapons formerly stored at his

compound.

       Meanwhile, as he was in hiding, Dukuly obtained a visa under a false name. He

then traveled to the United States where he was admitted as a nonimmigrant visitor for

business on June 18, 1997. The visa authorized Dukuly to remain in the States no later

than September 6, 1997 – however, he overstayed the visa and thus would have been

removed but for the fact that he completed an application for asylum in late September

1997. The IJ subsequently reviewed Dukuly’s application. After holding three separate

hearings regarding Dukuly’s case, the IJ eventually denied his application and

withholding of removal, but granted his application for voluntary departure. Dukuly

appealed the IJ’s decision to the BIA, and the BIA affirmed the IJ’s decision without




  2
    Dukuly later testified that he learned about both rapes through his friend, Thompson.
He learned about his wife’s rape in early April and his sister’s rape in July.

                                             4
further opinion.

       In his decision, the IJ stated that he found Dukuly’s testimony “fairly persuasive.”

Nevertheless, he ultimately determined that Dukuly’s credibility was “fatally damaged”

because Dukuly presented the Court with inconsistent statements and fabricated

documents, and because Dukuly failed to produce sworn testimony from Thompson.

       First, the IJ noted that Dukuly never mentioned the rapes of his wife and sister in

his asylum application. Instead, the application merely indicates that Dukuly’s wife had

been threatened with rape – not that she had actually been raped. Furthermore, the

application indicates that Dukuly’s sister had been arrested, detained and interrogated –

but not that she had been raped. When asked about these omissions, Dukuly testified that

they were a result of the fact that he had been hurried and stressed when he filled out the

application.

       Second, the IJ mentioned that at one point, Dukuly testified that when his wife was

raped on April 27th, his newborn child was only a few days old – yet at another point in

his testimony, Dukuly said that the baby was born on April 1st. Dukuly offered no

explanation for this inconsistency.

       Third, the IJ discussed at length two documents which had been entered into

evidence during Dukuly’s hearings. The first is a report from the American Embassy in

Monrovia, wherein it is confirmed that the John F. Kennedy Medical Center in which

Dukuly claims his sister was treated for rape does in fact exist. However, according to



                                             5
the Embassy, the Center has no records of his sister’s admission during the period in

question. The report also indicates that Dukuly’s wife received treatment at a rape clinic,

but that there was a discrepancy with regard to medical records concerning her treatment.

       The second document, a letter from an administrator at the Kennedy Medical

Center, states that Dukuly’s sister was treated for rape at the Japanese Liberian Friendship

Hospital – not at the Kennedy Medical Center. More notably, the letter indicates that

correspondence previously submitted to the IJ by Dukuly as evidence of his sister’s

treatment was completely fabricated.

       Finally, the IJ noted that, at an earlier hearing, the IJ had encouraged Dukuly to

either produce Thompson as a witness at the next hearing, or at least produce a signed and

sworn affidavit from him. Despite this suggestion, Dukuly failed to do so.

       Accordingly, the IJ denied Dukuly’s application for asylum. Dukuly filed this

timely appeal.

                                             II.

       Dukuly makes three main arguments on appeal: 1) the IJ misapplied the law in

determining that Dukuly submitted falsified documents to the Court; 2) the IJ erred in

finding Dukuly not credible; and 3) the IJ erred in denying asylum to Dukuly.3 In light of


  3
    Dukuly makes four additional arguments, all of which lack sufficient merit to warrant
detailed discussion. First, he contends that the IJ erred in finding that Dukuly made
insufficient efforts to obtain evidence in support of his case. However, nowhere in his
decision did the IJ conclude that Dukuly made such insufficient efforts. Rather, the IJ
found that the evidence which Dukuly did produce lacked credibility.

                                             6
the standard we must apply to an IJ’s decision regarding the evidence before him in an

asylum proceeding, after reviewing the relevant portions of the record, we conclude that

these arguments lack merit.

       Where the BIA affirms without opinion an IJ’s decision, “the IJ’s opinion

effectively becomes the BIA’s, and, accordingly, [we] must review the IJ’s decision.”

Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001). In the context of asylum

cases, adverse credibility determinations are reviewed under a substantial evidence

standard. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002) (citing Balasubramanrim v.

INS, 143 F.3d 157, 161 (3d Cir. 1998)). In other words, a reviewing court must sustain

an adverse credibility determination if there is substantial evidence in the record to




        Second, Dukuly argues that the BIA erred by not considering additional documents
that Dukuly submitted to the BIA in August and October 1999. Yet nothing in the record
suggests that these documents were accompanied by a motion to reopen or to remand in
conformity with the BIA’s regulations, currently codified at 8 C.F.R. §§ 1003.2(a)-(c)
(2003). Because we are not at liberty to consider additional evidence on appeal, see 8
U.S.C.A. § 1252(a)(1), this argument must fail.
        Third, Dukuly contends that the IJ violated his due process rights in failing to grant
Dukuly additional time to present evidence. However, at oral argument, Dukuly’s
counsel conceded that Dukuly’s attorney never requested any additional time from the IJ.
We do not see how Dukuly’s due process rights were implicated when he did not even
seek the time he says he was deprived of.
        Finally, Dukuly argues that this Court should adjust his status to “legal permanent
resident” based on Dukuly’s recent marriage to a United States citizen. Again, this issue
is raised for the first time on appeal. Dukuly has not indicated that he submitted the
necessary documents in support of this argument to the BIA in conformity with its
regulations. Thus, he has failed to exhaust his available remedies, leaving us without
jurisdiction to consider this argument. Xie v. Aschroft, 357 F.3d 239, 246 n.8 (3d Cir.
2004).

                                              7
support it. Gao, 299 F.3d at 272 (citing Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir.

1998)). Under this standard, such a determination must be upheld unless “‘any

reasonable adjudicator would be compelled to conclude to the contrary.’” Gao, 299 F.3d

at 272 (quoting 8 U.S.C. § 1252(b)(4)(B)).

       Under 8 U.S.C. § 1101(a)(42), an otherwise removable alien may be granted

asylum if he demonstrates that he is a “refugee,” 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 . . . .” An applicant for asylum can demonstrate that he

has a well-founded fear of future persecution by showing that he has “a genuine fear, and

that a reasonable person in [his] circumstances would fear persecution if returned to [his]

native country.” Gao, 299 F.3d at 272 (citing Elnager v. INS, 930 F.2d 784, 786 (9th Cir.

1991)). An applicant claiming to be a refugee has the burden of supporting his asylum

claim with credible evidence. Gao, 299 F.3d at 272 (citing Abdille v. Ashcroft, 242 F.3d

477, 482 (3d Cir. 2001)). Indeed, a persecution claim that lacks credibility “cannot satisfy

the burdens of proof and persuasion necessary to establish eligibility for asylum or

withholding of deportation.’” Xie , 359 F.3d at 241 (citing Matter of M-S-, 21 I. & N.

Dec. 125 (BIA 1995)).

              An asylum applicant’s “consistent and detailed testimony can be sufficient

to meet the burden of establishing persecution.” In Re O-D-, 21 I. & N. Dec. 1079, 1081



                                              8
(BIA 1998) (citations omitted). On the other hand, the production of counterfeit

documents, in the absence of an explanation concerning such production, “creates serious

doubts regarding the [applicant’s] overall credibility.” Id. at 1083 (citations omitted).

       First, Dukuly argues that the IJ misapplied the law in determining that he

submitted falsified documents to the Court. He asserts that, in In Re O-D-, a case that the

IJ relied upon, forensic experts made the determination that the documents at issue were

counterfeit. Id. at 1079. Thus, Dukuly argues, the IJ in this case should not have relied

on the correspondence from the American Embassy and the John F. Kennedy Medical

Center, because the authors of these communications (who reviewed Dukuly’s allegedly

counterfeit documents) were not forensic experts. However, because the Federal Rules of

Evidence do not apply in asylum proceedings, the IJ was not obligated to establish the

documents’ authenticity through the testimony of forensic experts. See Ezeagwuna v.

Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003). Indeed, in an asylum proceeding, the “‘test

for admissibility of evidence . . . is whether the evidence is probative and whether its use

is fundamentally fair . . . .’” Id. (quoting Bustos-Torres v. INS, 898 F.2d 1053, 1055 (5th

Cir. 1990)); see also 8 C.F.R. § 1240.7(a) (2003) (noting that an IJ may receive in

evidence “any oral or written statement that is material and relevant to any issue in the

case . . . .”). Because there is no evidence that admission of the correspondence was

unfair or that the documents lacked probative value, we find that the IJ properly




                                              9
considered them in making his determination.4

              Second, Dukuly argues that the IJ erred in finding him not credible.

Although the IJ did indicate that he found Dukuly’s testimony about the events at the

compound “fairly persuasive,” the IJ ultimately based his adverse credibility finding on

the entirety of the record. In particular, the IJ focused on Dukuly’s inconsistent and at

times incoherent statements, the falsified documents he presented to the Court, and the

fact that sworn testimony from a key witness was never provided. Because the

combination of these elements constitutes the “substantial evidence” necessary to support

an adverse credibility determination, and because we find that no reasonable adjudicator

would be compelled to conclude to the contrary, we will uphold the IJ’s determination.

       Finally, Dukuly contends that the IJ erred in denying his application for asylum

and withholding of deportation. However, in light of the IJ’s adverse credibility

determination, we find no error in the IJ’s denial of Dukuly’s application for asylum and

withholding of deportation.

                                             III.

       Accordingly, we will deny the petition for review.




  4
    Dukuly also argues that, because he was not aware that the documents he presented
were fraudulent, the IJ should not have relied on the fact that they were when he made his
credibility determination. However, it is clear that Dukuly bore the burden of proving his
claim with credible evidence. Gao, 299 F.3d at 272 (citation omitted). Because there was
some evidence that the counterfeit documents Dukuly produced were incredible, this
contention is without merit.

                                             10
