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


2-1-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3008




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 05-3008
                                    ___________


                                  LAO DAO HER,
                                          Petitioner

                                          v.

                            ATTORNEY GENERAL OF
                             THE UNITED STATES,

                                               Respondent

                            ________________________

                          On Petition for Review of an Order
                         of the Board of Immigration Appeals
                                (BIA No. A 73 344 909)

                      Immigration Judge: Donald Vincent Ferlise


                                    ___________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                September 12, 2006

            BEFORE: FUENTES, FISHER, and BRIGHT,* Circuit Judges.

                              (Filed: February 1, 2007)




      *
         The Honorable Myron H. Bright, Senior Judge, United States Court of Appeals
for the Eighth Circuit, sitting by designation.
                                       ___________

                               OPINION OF THE COURT
                                    ____________

FUENTES, Circuit Judge.

       Petitioner challenges the Board of Immigration Appeals’ denial of his application

for relief under the Convention Against Torture. For the reasons that follow, we will

deny the petition.

                                             I.

       Petitioner is a native and citizen of Laos.1 He was born in 1964 and is a member

of the Hmong ethnic group. He is married and has seven children, two of whom were

born in the United States.

       According to petitioner, his father worked for the CIA in a guerilla unit against

communist forces from 1960 to 1975. In 1975, petitioner’s family fled to the jungle to

hide from the communist government, which sought to murder Laotians who had assisted

the United States. At some point in the next few years, petitioner’s mother and younger

siblings were killed by a bomb explosion. Petitioner’s father was killed in 1979 during a

battle in the jungle. Petitioner then hid in the jungle with other family for four years. He

was shot in the leg by government forces before managing to escape to Thailand where he

lived in refugee camps for about fourteen years.


       1
        The case docket and caption state that petitioner’s name is “Lao Dao Her,”
although according to petitioner’s brief the correct name is “Lao Pao Her.”

                                             2
       Petitioner entered the United States legally from Thailand in June 1994, and his

status was adjusted to permanent resident in April 1996. In 1997, he pled guilty to the

importation of opium, a felony, and was sentenced to five months at a community

treatment facility, followed by three years of supervised release. The INS initiated

removal proceedings based on petitioner’s conviction for an aggravated felony and a

controlled substance offense. Petitioner applied for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”).

       In October 1999, following a hearing, the immigration judge (“IJ”) issued an

interlocutory order finding that petitioner had committed an aggravated felony and a

“particularly serious crime,” and that he therefore could not apply for asylum or

withholding of removal. Because of that decision, petitioner requested that the IJ recuse

himself from determining petitioner’s remaining claim under the CAT. The IJ denied the

recusal motion and held a hearing on the CAT claim in March 2000. On April 14, the IJ

ruled that petitioner’s testimony was not credible, and that he had not shown that it was

“more likely than not” that he would be tortured if returned to Laos.

       Petitioner appealed the IJ’s decisions to the Board of Immigration Appeals

(“BIA”), which denied him relief on March 22, 2004. The BIA concluded that the IJ

applied the correct standards to the recusal motion and properly denied it, and that the

opium conviction was for a “particularly serious crime.” In addition, the BIA upheld the

IJ’s denial of CAT relief because it agreed with the IJ that petitioner’s testimony

“contain[ed] important discrepancies as to essential facts.” Specifically, the BIA noted

                                             3
that petitioner had provided inconsistent testimony regarding his collaboration with the

CIA and his involvement with a resistance group. The BIA also determined that

petitioner had failed to provide a reasonable explanation for why his testimony as to the

dates of his parents’ deaths contradicted his documentary submissions.

       On March 30, 2005, petitioner filed a petition for writ of habeas corpus in the

Eastern District of Pennsylvania, which was transferred to our Court pursuant to the

REAL ID Act. We now consider petitioner’s application as a petition for review.

Petitioner argues that (1) the BIA erred in denying his CAT claim solely on credibility

grounds; (2) the BIA violated his due process rights by failing to examine the entire

record in considering his CAT claim; and (3) the IJ’s refusal to recuse himself, and the

BIA’s affirmance of that decision, denied him a fundamentally fair hearing in violation of

his due process rights.

                                            II.

       Our jurisdiction to review the BIA’s order is governed by the REAL ID Act, 8

U.S.C. § 1252. Because petitioner’s order of removal was based on his conviction for an

aggravated felony, we may not review the factual or discretionary findings of the BIA.

Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006). This includes credibility

determinations. See Jishiashvili v. Attn’y Gen. of the United States, 402 F.3d 386, 392

(3d Cir. 2005) (noting that “credibility determinations are factual matters”). Therefore,

we do not have jurisdiction to review petitioner’s arguments that the BIA was wrong to

conclude that his testimony was not credible.

                                             4
       We may, however, review petitioner’s claims “to the extent they present questions

of law, or of the application of law to undisputed fact.” Singh v. Gonzales, 432 F.3d 533,

537-38 (3d Cir. 2006). As a result, we do have jurisdiction to review petitioner’s claims

that the BIA committed legal error in denying his CAT claim and that his constitutional

rights were violated. Because the BIA did not adopt the IJ’s opinion or its findings, we

review only the decision of the BIA. See Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d

Cir. 2003) (“Our power of review . . . extends only to the decision of the BIA. Therefore,

only if the BIA expressly adopts or defers to a finding of the IJ, will we review the

decision of the IJ.”) (citation omitted).

                                             III.

        Petitioner contends that by denying his CAT claim solely on credibility grounds,

the BIA applied the wrong legal standards. Petitioner cites to Zubeda v. Ashcroft, 333

F.3d 463 (3d Cir. 2003), where we held that an adverse credibility determination for an

asylum or withholding of removal claim does not automatically defeat a CAT claim. Id.

at 476. Under some circumstances, the evidence in the record can support a finding that

the applicant is likely to be tortured even if the applicant’s testimony is not credible.

       Petitioner criticizes the BIA for failing to mention expert testimony or

documentary evidence that he claims supports his CAT claim. While the BIA could have

discussed the evidence in the record more fully, we do not believe the BIA committed

legal error. Unlike the unique circumstances in Zubeda, petitioner’s CAT claim cannot

survive an adverse credibility finding. The evidence apart from his testimony fails to

                                               5
demonstrate that the Laos government tortures Hmong citizens who are removed by the

United States or that the government even considers such individuals to be political

dissidents. Consequently, we believe the BIA committed no error in denying petitioner’s

CAT claim.

                                             IV.

       “We exercise plenary review over procedural due process claims. Aliens are

entitled to a full and fair hearing of [their] claims and a reasonable opportunity to present

evidence. To prevail on such claims, an alien must show substantial prejudice.” Singh v.

Gonzales, 432 F.3d 533, 541 (3d Cir. 2006) (internal quotation marks and citations

omitted). Due process requires that “[a]n alien: (1) is entitled to factfinding based on a

record produced before the decisionmaker and disclosed to him or her; (2) must be

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

individualized determination of his or her interests.” Abdulai v. Ashcroft, 239 F.3d 542,

549 (3d Cir. 2001) (internal quotation marks and citations omitted). Petitioner focuses on

the third requirement and claims that the BIA did not provide him with an “individualized

determination” by failing to fully evaluate the record. Petitioner bears the burden of

demonstrating the BIA’s failure to properly examine the record. See id. at 550.

       As noted above, the BIA could have discussed the expert testimony and

documentary evidence more fully, but it is clear that the BIA evaluated facts and evidence

specific to petitioner’s case and that it afforded him an “individualized determination.”

We conclude that the BIA’s review of petitioner’s petition satisfied due process.

                                              6
                                              V.

       Petitioner asserts that the IJ should have recused himself from adjudicating his

CAT claim because the IJ had previously ruled that petitioner had committed an

aggravated felony and a particularly serious crime. Petitioner asserts that the IJ based this

earlier ruling on an adverse credibility finding, which then improperly influenced the IJ’s

denial of the CAT claim. Petitioner asserts that we should apply the recusal standards for

federal judges established in Liteky v. United States, 510 U.S. 540 (1994), while the

government argues that we should look to Matter of Exame, 18 I & N Dec. 303 (BIA

1982). Under the recusal standards of either case, we believe that the BIA was correct to

affirm the IJ’s decision. Although the IJ may have questioned some of petitioner’s

testimony with regard to his criminal conviction, the IJ did not state that his finding of a

“particularly serious crime” was based on an adverse credibility determination. Petitioner

simply has failed to demonstrate that the IJ was biased or that his decision regarding the

criminal conviction created an improper appearance of bias. See Liteky, 510 at 555

(“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality

motion.”); Matter of Exame, 18 I & N Dec. at 306 (“[A]n immigration judge’s rulings in

the same or similar cases do not ordinarily form a basis upon which to allege bias.”).

                                             VI.

       Petitioner has failed to demonstrate that the BIA erred in rejecting his claim for

relief under CAT. For the reasons discussed above, we will deny the petition.



                                               7
