Sarr v. Gonzales

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0140p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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X

Petitioner, -

AMADOU LAMINE SARR,

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No. 05-4558

v.

,

>

ALBERTO R. GONZALES, United States Attorney -

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Respondent. -

General,

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On Petition for Review of an Order

of the Board of Immigration Appeals.

No. A72 416 748.

Argued: January 23, 2007

Decided and Filed: April 19, 2007

Before: DAUGHTREY and COOK, Circuit Judges; WEBER, District Judge.*

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COUNSEL

ARGUED: Scott A. Keillor, Ypsilanti, Michigan, for Petitioner. R. Alexander Goring, UNITED

STATES DEPARTMENT OF JUSTICE, OFFICE OF IMMIGRATION LITIGATION, Washington,

D.C., for Respondent. ON BRIEF: Scott A. Keillor, Ypsilanti, Michigan, for Petitioner.

R. Alexander Goring, Michelle Gorden Latour, UNITED STATES DEPARTMENT OF JUSTICE,

OFFICE OF IMMIGRATION LITIGATION, Washington, D.C., for Respondent.

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OPINION

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MARTHA CRAIG DAUGHTREY, Circuit Judge. The petitioner, Amadou Sarr,1 seeks

review of a ruling of the Board of Immigration Appeals (Board) that affirmed an immigration

judge’s decision denying Sarr’s requests for asylum, withholding of removal, and relief pursuant to

the United Nations Convention Against Torture. Sarr contends that he proved by sufficient evidence

*

The Honorable Herman J. Weber, United States District Judge for the Southern District of Ohio, sitting by

designation.

1

At various places in the record, the petitioner’s surname is spelled “Saar,” “Saarr,” and “Sarr.” Because

documents signed by the petitioner consistently use the spelling “Sarr,” we will do likewise.

1

No. 05-4558 Sarr v. Gonzales Page 2

that he had suffered past persecution in his native Senegal and that country conditions have not

changed sufficiently to alleviate the threat of future persecution if he is returned to Senegal. Sarr

also contends on appeal that he was denied due process by the immigration judge’s adverse

credibility finding and by the Board’s refusal to adjudicate certain of his requests for relief. Because

we conclude that Sarr has failed to satisfy the heavy burden imposed upon him to overturn the

administrative decisions in question, we must deny Sarr’s petition for review relating to those

determinations. In addition, because there is no basis upon which to conclude that the petitioner has

been denied procedural due process, we cannot grant review on constitutional grounds, even though

we reject the government’s argument that the Board’s decision in In re Velarde-Pacheco, 23 I. &

N. Dec. 253 (BIA 2002), confers upon the government the power single-handedly to prevent the

Board’s consideration of an otherwise meritorious motion to reopen or remand a request for

adjustment of status.

FACTUAL AND PROCEDURAL BACKGROUND

After studying English at a university in Senegal, Sarr entered the United States in 1991 on

a one-year visa as an “exchange scholar.” While the visa was still valid, he filed an application for

asylum, in which he indicated that he had been politically active in an opposition party in Senegal,

resulting in his arrest and “mistreatment” following the 1988 general election. He also indicated that

he had been “detained” for participating in “a peaceful march protesting the results of [that]

election,” but he did not allege that he had been physically harmed in any way. Summarizing his

reasons for seeking refugee status, Sarr wrote, “I believe in democracy and I think that people should

have the right to express their political opinion regardless of race, religion, etc. . . . .”

Not surprisingly, this application was not deemed sufficient to establish grounds for a grant

of asylum, which was denied in 1998. However, Sarr filed a second application for asylum in 1999,

and this time he detailed a series of events that, if established to the satisfaction of the immigration

court, would arguably have made out a case of past persecution under the applicable statute, 8

U.S.C. § 1101(a)(42)(A). He also testified in support of his application that he had been a member

of the Senegalese Democratic Party’s youth division for 12 years, from 1979 to 1991, and had

participated in marches and other peaceful demonstrations against the ruling Socialist Party. Even

though he was employed as a high school teacher by the Senegalese government for much of that

time, Sarr claimed to have suffered serious retribution for the expression of his political beliefs.

According to his testimony, Sarr was arrested numerous times as a result of his opposition activities,

beginning in February 1988, when he was arrested, jailed for one week, and beaten with a leather

whip called a “gourdin” for writing a newspaper article critical of the Socialist rulers. He told the

immigration judge that in March 1988 he was arrested again, this time for demonstrating peacefully

in the capital city of Dakar, that he was jailed for seven to ten days, and beaten, whipped, and kicked

by his captors “[a]lmost every day,” and that he sought medical attention after his release from

confinement.

The petitioner further testified that he was arrested again the following month, on April 4,

1988, Senegal’s independence day, at another peaceful demonstration. He claimed that he was jailed

for “one week or two weeks” on that occasion and that he was beaten by the police “with the back

of a rifle.” Similar arrests and incarcerations allegedly occurred on December 24, 1988, in March

1989, and in December 1990. The last arrest also involved various Democratic Party leaders,

including Abdoulaye Wade, the current president of Senegal, and Idrissa Seck, the country’s prime

minister at the time of Sarr’s hearing. Sarr testified that after that 1990 arrest, he was tortured and

beaten, one of his ribs was broken, he was bound hand and foot and hung from a pole suspended

between two tables, and police burned him with cigarette butts.

Sarr alleged that he was arrested again in April or May 1991, jailed for two weeks, tortured,

beaten, hit with a rifle, and kicked. During that incarceration, he testified, his captors also warned

No. 05-4558 Sarr v. Gonzales Page 3

him that continued protesting would result in further physical punishment for him and harm to his

family. Finally, the petitioner said that he was arrested in Dakar in May 1991 and accused of being

a member of the rebel Democratic Forces of Casamance, ironically the organization that supposedly

had kidnaped Sarr just prior to this last arrest. He testified that he was, on that occasion, detained

for three weeks and beaten so severely that he lapsed into a coma. Upon recovering from his

injuries, Sarr said, he managed to escape from the hospital and hide out until he was able to secure

his visa and flee from Senegal to the United States in August 1991.

Unfortunately for Sarr, he offered virtually no corroboration for his testimony at the hearing

finally held in 2004 before the immigration judge – no documentation of his arrests, no hospital

records, no copy of the alleged newspaper article, nothing other than a single affidavit allegedly

executed by Sarr’s political comrade in Senegal that, because of its similarity to Sarr’s own affidavit,

appears to have been prepared by his attorney in Michigan and sent to Senegal merely for signing.

The omission of corroboration proved significant in light of the fact that Sarr had a large number

of family members still in Senegal who, presumably, could have supplied documentary evidence of

the events that Sarr described in his second application and at the hearing. He was also unable to

explain to the immigration judge’s satisfaction why the 1992 asylum application had omitted the

myriad details later included in the 1999 application, saying only that he had not had assistance in

filling out the 1992 form and that he had simply forgotten to include in it much of what he later

remembered to set out in the 1999 application.

Citing the discrepancies between the two applications and significant inconsistencies

between the 1999 application and Sarr’s testimony in 2004, the immigration judge discredited the

petitioner’s testimony, saying that “[t]he inconsistencies and discrepancies present in [Sarr’s] claim

are more than incidental misstatements; they involve material facts that go to the heart of the asylum

claim,” and held that he had failed to establish past persecution. The judge also ruled that even if

Sarr’s testimony were considered credible, dramatic changes in the country conditions in Senegal

in the 13 years since Sarr left were sufficient to rebut any claim of well-founded fear of future

persecution. Indeed, the record reflects that by 2004 the Senegalese Democratic Party had taken

over the government in Dakar by means of peaceful elections, and that some of Sarr’s former

political cohorts were then the highest elected officials in the country. As a result of these findings,

the immigration judge denied all forms of requested relief: asylum, withholding of removal,

protection under the United Nations Convention Against Torture, and voluntary departure.

The Board dismissed the petitioner’s appeal, finding both that the immigration judge’s

credibility determinations were not clearly erroneous and that the record supported the conclusion

“that the conditions in Senegal have changed significantly since [Sarr] departed in 1991.” The

Board further denied the petitioner’s motion to remand for consideration of adjustment of status on

two grounds: because the government opposed the2 motion and because the immigration judge had

concluded that Sarr testified falsely at his hearing. The petitioner now seeks review of the Board’s

decision.

2

While the appeal was pending before the Board, the petitioner had filed an I-485 request for adjustment of

status based upon his marriage in 2002 to an American citizen, Chyrell Bellamy, who had also filed an I-130 spousal

petition for a resident visa in her husband’s name. At the time of oral argument in this case, three years after they were

filed, neither the I-485 petition nor the I-130 petition had yet been processed by the Department of Homeland Security.

No. 05-4558 Sarr v. Gonzales Page 4

DISCUSSION

A. Standard of Review

This appeal requires that we analyze two administrative rulings: the Board’s summary

affirmance of the immigration judge’s denial of applications for asylum, withholding of removal,

and protection under the United Nations Convention Against Torture, and the Board’s denial of a

motion for remand filed initially with the Board itself. When the Board summarily affirms a portion

of the decision of an immigration judge without discussing the relevant issues in-depth, “we review

the [immigration judge’s] decision as the final agency decision.” Denko v. INS, 351 F.3d 717, 726

(6th Cir. 2003). An examination of the propriety of the Board’s ruling on the motion for remand,

however, naturally involves an analysis only of the Board’s reasoning on that issue.

In either instance, we must sustain an administrative decision if that determination is

“supported by reasonable, substantial, and probative evidence on the record considered as a whole.”

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). “Under this deferential standard, we may not

reverse the Board’s or the immigration judge’s determination simply because we would have

decided the matter differently.” Koliada v. INS, 259 F.3d 482, 486 (6th Cir. 2001) (citing

Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir. 1998)). Instead, to overturn a Board’s factual

determination, “we must find that the evidence not only supports [a contrary] conclusion, but

compels it.” Elias-Zacarias, 502 U.S. at 481 n.1.

B. Request for Asylum

Before the immigration judge and the Board, Sarr pursued numerous avenues of relief,

including a request for political asylum. As we have explained, “resolution of any request for

asylum involves ‘a two-step inquiry: first, whether the petitioner is a “refugee” within the meaning

of the [Immigration and Nationality Act], and second, whether the petitioner merits a favorable

exercise of discretion by the Attorney General.’” Chen v. Gonzales, 447 F.3d 468, 472 (6th Cir.

2006) (quoting Perkovic v. INS, 33 F.3d 615, 620 (6th Cir. 1994)); (See also INS v. Cardoza-

Fonseca, 480 U.S. 421, 428 n.5 (1987); 8 U.S.C. § 1158(b)(1).

Section 1101(a)(42)(A) of Title 8 of the United States Code defines the term “refugee” to

mean:

[A]ny person who is outside any country of such person’s nationality or, in the case

of a person having no nationality, is outside any country in which such person last

habitually resided, and who is unable or unwilling to return to, and is unable or

unwilling to avail himself or herself of the protection of, that 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 who has been found to have established . . . past persecution shall also be presumed

to have a well-founded fear of persecution on the basis of the original claim,” 8 C.F.R.

§ 208.13(b)(1), unless the immigration judge finds, by a preponderance of the evidence, either that:

(A) There has been a fundamental change in circumstances such that the applicant

no longer has a well-founded fear of persecution in the applicant’s country of

nationality . . . on account of . . . political opinion; or

(B) The applicant could avoid future persecution by relocating to another part of the

applicant’s country of nationality . . . and under all the circumstances, it would be

reasonable to expect the applicant to do so.

No. 05-4558 Sarr v. Gonzales Page 5

8 C.F.R. § 208.13(b)(1)(i).

The immigration judge in this case concluded that Sarr was not a “refugee” for asylum

purposes, both because the petitioner had not established that he had suffered from past persecution

and because Sarr had not met his burden of showing a well-founded fear of future persecution. That

decision to deny the request for asylum was driven, in large part, by the immigration judge’s

conclusion that the petitioner was not a credible witness.

Such a credibility determination is considered a finding of fact and is thus reviewed under

the deferential substantial-evidence standard. See Sylla v. INS, 388 F.3d 924, 925 (6th Cir. 2004).

Even so, the immigration judge’s conclusion must be supported by specific reasons and must be

based upon issues “that go to the heart of the applicant’s claim.” Id. at 926. In other words, “[i]f

discrepancies cannot be viewed as attempts by the applicant to enhance his claims of persecution,

they have no bearing on credibility.” Id. (citations and internal quotation marks omitted).

In her decision in this matter, the immigration judge concluded that numerous inconsistencies

were present in the record. However, our review of the administrative record convinces us that some

of these alleged inconsistencies involved a misinterpretation of the evidence, as well as a misreading

of the various country reports from the State Department. Moreover, it appears that the immigration

judge may have put too much emphasis on the omissions in the petitioner’s 1992 asylum application.

See Liti v. Gonzales, 411 F.3d 631, 638 (6th Cir. 2005) (quoting Secaida-Rosales v. INS, 331 F.3d

297, 308 (2d Cir. 2003) (“the circumstances surrounding the application process do not often lend

themselves to a perfectly complete and comprehensive recitation of an applicant’s claim to asylum

or withholding, and . . . holding applicants to such a standard is not only unrealistic but also

unfair”)). As we noted in Liti:

The purpose of holding a removal hearing is not simply to reiterate the statements

made in the asylum application, but rather to allow an alien “to present evidence on

the alien’s own behalf” including to elaborate on the generalized claims made in the

application itself. 8 U.S.C. § 1229a(b)(4)(B). Therefore, [as long as] the statements

in the application [are] not inconsistent with the [petitioner’s] subsequent testimony

of the specific events at [his] removal hearing, . . . the BIA’s adverse credibility

finding is unsupported by the evidence, and therefore we are compelled to conclude

to the contrary.

Liti, 411 F.3d at 639 (emphasis added).

Without question, however, various arrests or detentions mentioned by the petitioner in either

his 1999 application or his oral testimony were not included in the other. Also, Sarr failed to

introduce into evidence any documentation of his arrests or his hospitalizations in Senegal, or to

offer reports by American doctors to corroborate his claims of past injury. Given this state of the

record and the deference that we are required to extend to the immigration judge’s credibility

determinations, it is not possible to say that the evidence compels a conclusion that those findings

were erroneous. Moreover, as the immigration judge concluded, “[E]ven taking [Sarr’s] testimony

and evidence in its best light[, he did not establish] a well-founded fear of future persecution” in

Senegal because of changed country conditions since the petitioner left in 1991. Specifically, the

immigration judge pointed to a February 2004 country report on Senegal from the United States

Department of State that noted that Abdoulaye Wade, the petitioner’s former compatriot, had

become president of the nation in March 2000, that “[t]he Government generally respected its

citizens’ rights,” that “[t]here were no political killings,” and that, “unlike in previous years, there

were no credible reports that police and gendarmes beat and tortured suspects during questioning

and pretrial detention during the year.” We therefore have no basis on which to overturn the denial

of asylum.

No. 05-4558 Sarr v. Gonzales Page 6

C. Request for Withholding of Removal

Sarr also petitions for review of the administrative denial of his request for withholding of

removal. Pursuant to the provisions of 8 U.S.C. § 1231(b)(3)(A), “the Attorney General may not

remove an alien to a country if the Attorney General decides that the alien’s life or freedom would

be threatened in that country because of the alien’s race, religion, nationality, membership in a

particular social group, or political opinion.” Thus, in order to qualify for withholding of removal,

the petitioner “must establish that there is a clear probability that he will be subject to persecution

if forced to return to the country of removal.” Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004).

To make such a showing, a petitioner “must demonstrate that ‘it is more likely than not’ that he or

she will be persecuted upon return.” Liti, 411 F.3d at 641 (quoting 8 C.F.R. § 1208.16(b)(2)).

Because this burden is “a more stringent burden than what is required on a claim for asylum,” id.

at 640 (quoting Pilica, 388 F.3d at 951), it follows from Sarr’s failure to establish eligibility for

asylum that he cannot satisfy the more onerous burden for withholding of removal either. See, e.g.,

Koliada, 259 F.3d at 489.

D. Request for Relief Under The United Nations Convention Against Torture

The petitioner additionally requested relief under the provisions of the United Nations

Convention Against Torture. To obtain withholding of removal under that convention, “[t]he burden

of proof is on the applicant . . . to establish that it is more likely than not that he or she would be

tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). This burden is

also significantly greater than the burden required to demonstrate eligibility for asylum. Whereas

asylum may be granted by the attorney general upon a showing of a “well-founded fear of

persecution,” withholding of removal under the Convention Against Torture requires a showing that

it is more likely than not that Sarr would not only be persecuted upon his return to Senegal, but that

he would be tortured. Because the petitioner cannot demonstrate entitlement to a grant of asylum

in this case due to changed conditions, he also cannot meet the more stringent requirements of the

Convention Against Torture. See, e.g., Liti, 411 F.3d at 641. Substantial evidence thus supports the

immigration judge’s denial of this extraordinary relief to Sarr.

E. Alleged Violations of Due Process Clause

The petitioner next asserts that his due process rights were violated when he was denied

withholding of removal. According to Sarr, such relief is mandatory when the petitioner can

establish that it is more likely than not that he would suffer persecution should he be returned to his

homeland; consequently, argues Sarr, denial of withholding of removal solely because the

immigration judge doubted the petitioner’s credibility frustrates the expectations secured by the

applicable laws. In fact, however, the administrative denial of withholding of removal was not

based on a simple credibility determination, but rather upon a finding that country conditions in

Senegal had changed so dramatically in the years since Sarr left that country that there was no basis

in fact for a well-founded fear of future persecution. No due process violation thus occurred in this

regard.

In another series of attacks upon the decisions of the immigration judge and the Board, Sarr

alleges additional due process violations in the failure of the government to grant his timely motion

for remand and to rule upon his wife’s I-130 petition to adjust his status based upon marriage to a

United States citizen. Both of the requested forms of relief are, however, granted only in the

discretion of the attorney general. Because “[t]he failure to be granted discretionary relief does not

amount to a deprivation of a liberty interest,” see Huicochea-Gomez v. INS, 237 F.3d 696, 700 (6th

Cir. 2001), to the extent that the petitioner raises due process challenges to these Board’s decisions,

his arguments cannot be sustained.

No. 05-4558 Sarr v. Gonzales Page 7

A liberal reading of Sarr’s allegations of error also indicates, however, that the petitioner

challenges the Board’s failure to grant his motion for remand to consider his request for adjustment

of status. “The Board’s denial of a motion to remand is reviewed for an abuse of discretion.” Abu-

Khaliel v. Gonzales, 436 F.3d 627, 634 (6th Cir. 2006). “In determining whether the Board abused

its discretion, this Court must decide whether the denial . . . was made without a rational

explanation, inexplicably departed from established policies, or rested on an impermissible basis

such as invidious discrimination . . . .” Id. (quoting Balani v. INS, 669 F.2d 1157, 1161 (6th Cir.

1982)).

In support of the Board’s denial of the motion to remand, the government argues that the

Board actually relied upon two legitimate rationales in its decision: first, that the immigration judge

concluded that Sarr had testified falsely at the hearing, thus making him ineligible for the relief he

sought, see 8 U.S.C. § 1182(a)(6)(C)(i) (“Any alien who, by . . . willfully misrepresenting a material

fact, seeks to procure . . . [a] benefit [provided by immigration laws] is inadmissible.”), and, second,

that the Department of Homeland Security opposed the petitioner’s motion. Indeed, the government

argues that the second reason, standing alone, is sufficient to support the denial of a motion to

reopen or remand, citing as authority for this proposition the Board’s split opinion in Matter of

Velarde-Pacheco, 23 I&N Dec. 253, 256 (BIA 2002), in which the Board concluded:

[A] properly filed motion to reopen may be granted, in the exercise of discretion, to

provide an alien an opportunity to pursue an application for adjustment where the

following factors are present: (1) the motion is timely filed; (2) the motion is not

numerically barred by the regulations; (3) the motion is not barred . . . on any . . .

procedural grounds; (4) the motion presents clear and convincing evidence indicating

a strong likelihood that the respondent’s marriage is bona fide; and (5) the Service

either does not oppose the motion or bases its opposition solely on [reasons not

applicable here].

Our reading of Velarde leads us to conclude that although a motion may be granted when

certain factors are present, the Board’s ruling does not necessarily mean that such a motion must be

denied when any one of the identified factors is absent, especially when the only factor militating

against a grant of the motion is the simple fact that the government opposes the motion. Obviously,

affording such importance to that single consideration would effectively remove all authority over

the granting or denial of such motions by the Board and place it solely within the hands of one of

the adversarial parties to the proceedings. More significantly, we note that in discussing the five

Velarde factors, the Board held that their application in a given case “necessarily requires

examination of the relevant factors and a determination of the weight such factors should be

accorded.” Id. at 256 (emphasis added). This language suggests, of course, that in some cases not

all five factors will be relevant and that in all cases no one factor will be dispositive. We therefore

reject the government’s contention that Velarde gives the government unbridled discretion

amounting to an absolute veto to block consideration of a motion to reopen.

The government’s opposition in this case is, therefore, not controlling on the question of a

remand to permit Sarr to seek reopening of his case in an effort to establish that his status should be

adjusted on the basis of his valid marriage to Chyrell Bellamy, but is instead simply one factor to

be considered. However, there remains the finding by the immigration judge that Sarr testified

falsely at the 2004 hearing, a decision that arguably renders him “inadmissible” under 8 U.S.C.

§ 1182(a)(6)(C)(i) and, hence, ineligible for adjustment of status unless he obtains a waiver of his

inadmissibility pursuant to 8 U.S.C. § 1182(i). Because the petitioner’s motion to remand did not

include a waiver application, the Board held that the motion was “insufficient.” Although this

decision appears to us to be hyper-technical and, furthermore, based on an omission attributable to

counsel and not the petitioner, it is, nevertheless, a decision that is not subject to judicial review.

See 8 U.S.C. § 1182(i)(2).

No. 05-4558 Sarr v. Gonzales Page 8

CONCLUSION

There are in this case positive factors that argue in favor of permitting Amadou Sarr to

establish permanent resident status: he has now resided in the United States for more than 15 years;

he is married to an American citizen; no allegations have been made by the government that the

marriage is in any way fraudulent; no evidence has been offered that Sarr, a high school teacher, has

run afoul of the nation’s criminal laws; the government does not assert that the petitioner’s motion

was not both timely and procedurally proper; and the requests made by both the petitioner and his

wife for adjustment of status based on their 2002 marriage have been left pending by immigration

officials for more than three years, without benefit of review or a hearing. Under these

circumstances, it seems to us that the petitioner deserves, at the very least, an opportunity to have

his request for discretionary relief considered by agency officials entrusted with the responsibility

for making such determinations. Unfortunately for him, it is only those officials who have the

necessary authority to grant relief in this case, and not the courts. Because there is no legal basis

upon which to grant relief, we must DENY review of the final order of the Board.