                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-4-2005

Diallo v. Dept Homeland
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4750




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"Diallo v. Dept Homeland" (2005). 2005 Decisions. Paper 1585.
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                                                          NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                        No: 03-4750

                                  SOULEYMANE DIALLO,
                                                                   Petitioner
                                               v.

    DEPARTMENT OF HOM ELAND SECURITY, Sec. Tom Ridge;
BUREAU OF IMMIGRATION & CUSTOMS ENFORCEMENT; THEODORE
               NORDMARK, Act. Dist. Dir.,
                                          Respondent

                           Petition for Review of the Decision of
                            the Board of Immigration Appeals
                                 U.S. Department of Justice
                         Executive Office for Immigration Review
                                     File: A77-550-820
                          Judge: Frederick D. Hess for the Board

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  November 18, 2004

                                   (Filed: January 4, 2005)

                         Before: SCIRICA Chief Judge, MCKEE,
                             and CHERTOFF, Circuit Judges

                                          OPINION

McKEE, Circuit Judge.

       Souleymane Diallo 1 petitions for review of the decision of the Board of


       1
        The majority of documents in the record state that petitioner’s name is “Souleymane
Diallo.” However, petitioner avers his name to be “Diallo Souleymane.” We will refer to

                                               1
Immigration Appeals, affirming without opinion the decision of the Immigration Judge

denying Diallo’s application for asylum, withholding of removal, and protection under the

Convention Against Torture. We conclude that the BIA’s decision is supported by

substantial evidence, and we will therefore affirm.

                                               I.

       Since we write only for the parties, it is not necessary to recite the facts of this case

in detail except insofar as may be helpful to our brief discussion. Diallo entered the

United States with a Guinean passport on April 18, 1995, with permission to remain until

October 17, 1995.2 (A.R. at 128, 130, 737). Diallo filed an application for asylum with

the former INS in July 1999. (A.R. 660-670). The former INS commenced removal

proceedings against petitioner on August 30, 1999. (A.R. at 737). At the removal

hearing, Diallo stated that he is a native of Liberia, not Guinea. (A.R. 111). He also

claimed that his mother was born in Liberia and that his father was born in Guinea.3

(A.R. 125).




Petitioner as “Souleymane Diallo,” to conform with the caption on his brief.
       2
        Diallo used this passport to enter the United States in 1995, but he testified he
could not provide it for inspection by the IJ because he “returned the passport to its
owner.” (A.R. 131).
       3
        The IJ noted that Diallo’s first I-589 application reflected the opposite: that
Diallo’s father was born in Liberia and his mother in Guinea. (A.R. 70). The IJ also
noted that a naturalization booklet previously belonging to Diallo’s father, reflected that
Diallo’s father was a citizen of Mali who later became a naturalized citizen of Liberia.
(A.R. 79).

                                                2
       Diallo testified that the National Patriotic Front of Liberia (“NPFL”), under the

leadership of Liberia’s President Charles Taylor, persecuted Diallo in Liberia because of

his father’s political activities in support of Samuel Doe, Liberia’s former President.

(A.R. 138-39). Diallo asserts that his father led his tribe’s political campaign for Doe in

the 1980s, and that Diallo himself participated in a youth group affiliated with the Doe

campaign. (A.R. 139-40).

       Diallo testified that in December 1991, several members of the NPFL beat him,

struck his mother in the face with the butt of a gun, stole money and goods from the

family store, and then pursued Diallo’s father, who had fled to the Lebanese Embassy.

(A.R. 142-44). 4



       4
        The Department of Homeland Security argues that Diallo’s failure to corroborate
the beating with documentation further undermines his claim. Appellee states: “petitioner
alleged . . . he was tied up and beaten, his mother was hit in the face and robbed, and his
father was killed by NFLP members on account of th family’s support of Samuel Doe.”
Appellee then states: “[p]etitioner failed to provide any documentary evidence or
affidavits to support these assertions.” Appellee’s Br. at 21.
        However, to the extent that the Department of Homeland Security is suggesting
that the absence of documentary evidence undermines Diallo’s credibility, we note that
the absence of such evidence, without more, would not support an adverse credibility
determination. Diallo can not be expected to obtain “documentary evidence or affidavits”
to corroborate that his mother and he were beaten by street thugs because it is not realistic
to assume that documentary evidence of such beatings exists. Witnesses would certainly
not be likely to endanger themselves by giving a “statement” even if there were any
witnesses, and even if police were somehow willing to try to obtain statements that might
jeopardize supporters of the regime that employs them. Furthermore, there is nothing to
suggest that anything like “medical records” would have been either generated or
accessible. We think it obvious that medical facilities as we know them are not often
found in the underdeveloped world, nor is it likely that facilities that do exist would issue
documentation of beatings by street thugs loyal to an oppressive and brutal regime.

                                              3
       The IJ held that Diallo was barred from applying for asylum because he did not file

within a year of his arrival in the United States. (A.R. 68-69).5 The IJ also ruled that

Diallo was not credible. (A.R. 80). That adverse credibility finding was based on several

factors including inconsistencies in Diallo’s testimony, Diallo’s failure to produce any

documentation of his father’s murder, and Diallo’s submission of fraudulent documents to

establish his identity. (A.R. 80-81). Based on Diallo’s lack of credibility, the IJ denied

relief and ruled that Diallo was not eligible for voluntary departure. Id. The BIA issued a

per curiam order affirming the IJ’s decision without opinion pursuant to 8 C.F.R. §

1003.1(e)(4), and this appeal followed.

                                             II.

       Where, as here, the BIA affirms the IJ’s decision without opinion, the opinion of

the IJ constitutes the final agency determination for purposes of our review. 8 C.F.R. §


       We have previously explained that asylum seekers will rarely be able to produce
documentary evidence of the brutality they allege. “It is obvious that one who escapes
persecution in his or her own land will rarely be in a position to bring documentary
evidence or other kinds of corroboration to support a subsequent claim for asylum.”
Senathirajah v. INS. , 157 F.3d 210 215 (3d. Cir. 1998). However, as we explain below,
we nevertheless agree that substantial evidence supports the adverse credibility
determination that is fatal to Diallo’s claim for relief here.
       5
         Diallo explains that he did not file for asylum until 1999 because he was waiting
for the results of the 1997 Liberian presidential election. (A.R. 154). Diallo does not
address whether his delayed filing deprives us of jurisdiction pursuant to 8 U.S. C. §
1158(a)(2)(B). Since Diallo does not attempt to establish the “special circumstances”
necessary to pursue his asylum claim given the untimely filing, we agree that the asylum
claim is clearly barred by Diallo’s untimely filing. That late filing des not, however,
preclude our review of his claim for withholding of removal or for relief under the
Convention Against Torture. See, Tarrawally v. Ashcroft, 338 F.3d 180 (3d. Cir. 2003).

                                              4
1003.1(e)(4); Dia v. Ashcroft, 353 F.3d 228, 242 (3d Cir. 2003) (en banc). We affirm the

IJ’s findings if they are supported by substantial evidence. Balasubramanrim v. INS, 143

F.3d 157, 161 (3d Cir. 1998). “Substantial evidence” is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” N.L.R.B. v.

Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939). Under this deferential

standard of review, we uphold the credibility determination unless any “reasonable

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

       The IJ’s conclusion that Diallo was not credible was based primarily on Diallo’s

submission of fraudulent documents to establish his identity, i.e. the counterfeit Liberian

national I.D. card and Liberian birth certificate. Diallo’s testimony was also undermined

by numerous inconsistencies in his testimony. We conclude, after reviewing the record as

a whole, that the IJ’s credibility determination was based on substantial evidence.

       Diallo’s principal argument on appeal is that the IJ mistakenly relied on Matter of

O-D, 21 I. & N. Dec. 1079 (BIA 1998), which Diallo asserts is distinguishable. There,

the BIA held that where the fraudulent document is used to support a claim for asylum (as

opposed to gaining entry into the United States), the “submission into evidence of . . . [a]

counterfeit document generally discredits [the applicant’s] testimony regarding asylum

eligibility and specifically discredits his claim of identity.” Id. at 1082. Thus, the BIA

found that the applicant’s presentation of “at least one counterfeit document . . . submitted

to prove a central element of the claim in an asylum adjudication, indicates his lack of



                                              5
credibility.” Id. at 1083. The BIA thus concluded that presentation of such counterfeited

documents, “in the absence of an explanation regarding such presentation, creates serious

doubts regarding the respondent’s overall credibility.” Id. at 1083.

       However, Diallo argues that his case is “readily distinguishable” from Matter of O-

D because he explained the counterfeit documents. Diallo explained that his cousin had

obtained these documents in Liberia at Diallo’s request, and that Diallo did not know that

the documents were counterfeit until after both the former INS’ forensic laboratory and

Diallo’s own expert determined they were.

       However, that explanation does not alter the fact that Diallo bore the burden of

proving his claim with credible evidence, see Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.

2002) (citation omitted) and his failure to establish his claim resulted in the IJ concluding

that Diallo was not entitled to relief. Moreover, the fraudulent documents were not the

only basis for the IJ’s negative credibility determination.

       Diallo argues that his testimony was consistent on many key issues and that the

inconsistencies cited by the IJ were not critical to Diallo’s claim for relief. We agree that

an adverse credibility determination must be based upon material inconsistencies. See

Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir. 1990). We also agree that several of

the inconsistencies the IJ cited are not material to his claim for relief. For example,

Diallo’s first I-589 application states that his father’s shop was “destroyed.” (A.R. 73).

However, in his testimony at the first hearing before the IJ, Diallo stated that the store



                                              6
was “emptied” rather than “destroyed.” Id. The IJ concluded that this discrepancy

undermined Diallo’s credibility. However, this is a minor “inconsistency” that could

easily have resulted from nothing more than semantics, or difficulties in communication.

       Nevertheless, Diallo’s testimony also included material inconsistencies regarding

his parents’ citizenship, his own birth date, and the time frame and circumstances

pertaining to fraudulent documents purportedly received from his cousin. These

inconsistencies can not be dismissed as immaterial or irrelevant. They bear directly on

Diallo’s claim as they are central to his assertion that he is a citizen of Liberia and his

explanation for seeking refuge from persecution in that country. Therefore, even though

the IJ highlighted some irrelevant inconsistencies, substantial evidence remains on this

record to support the adverse credibility determination that is fatal to his claim for relief.




                                               7
