Obale v. Atty Gen USA

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

6-22-2006

Obale v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 05-1109

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-1109

AYUK AKO OBALE,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES *

*(Caption amended pursuant to Rule 43(c), Fed. R. App. Pro.)

Petition for Review of the Order

of the Board of Immigration Appeals

(A95-462-645)

Immigration Judge: Honorable Miriam K. Mills

Argued December 13, 2005

Before: SLOVITER, SMITH, and STAPLETON,

Circuit Judges.

(Filed: June 22, 2006 )

John L. Sesini (Argued)

Milwaukee, WI 53233

Attorney for Petitioner

Linda S. Wernery

John M. McAdams, Jr. (Argued)

United States Department of Justice

Office of Immigration Litigation

Washington, DC 20044

Attorneys for Respondent

OPINION OF THE COURT

SLOVITER, Circuit Judge.

In this petition for review from a final order of removal

entered by the Board of Immigration Appeals (“BIA”) the

petitioner, Ayuk Ako Obale (“Obale”), argues that the decision

of the BIA was not supported by substantial evidence. She also

moves for a stay of the voluntary departure period. Before we

consider the merits of the stay request, we must decide the

threshold issue of whether we have jurisdiction to issue the stay.

I.

Obale is a twenty-eight-year-old native and citizen of

Cameroon who was admitted to the United States on or about

November 29, 1997 on a non-immigrant, F-1 visa. She

overstayed her visa, which expired on June 1, 1999. On July 3,

2002, the Government issued a Notice to Appear charging Obale

with removability from the United States under section

237(a)(1)(B) of the Immigration and Nationality Act (“INA”).

Obale admitted that she was removable as charged and sought

relief in the forms of asylum, withholding of removal, and

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

Immigration Judge (“IJ”) denied Obale’s applications for relief

but granted her a sixty-day period to voluntarily depart before an

order for removal to Cameroon would take effect.

The BIA affirmed the IJ’s decision without opinion, and

granted Obale a thirty- day voluntary departure period from the

date of its order. Two days before expiration of the period in

which Obale could voluntarily depart, she sought review in this

court of the BIA decision as well as a stay of removal and of the

2

thirty-day period for voluntary departure pending appellate

review. This court granted Obale’s motion for a stay of removal,

but referred the motion for stay of voluntary departure to a

merits panel to resolve the question of our jurisdiction to grant

such a stay.

II.

The question of our jurisdiction to stay the remaining two

days of the thirty-day period in which Obale must voluntarily

depart is one of first impression for this court.1 As we noted in

Reynoso-Lopez v. Ashcroft, 369 F.3d 275 (3d Cir. 2005), the

Attorney General will grant an alien voluntary departure as an

1

Several other courts of appeals have addressed this

question. The majority of them hold that courts of appeals have

jurisdiction to stay the voluntary departure period, either because

courts of appeals have equitable power to issue a stay or because

28 U.S.C § 2349 contains a statutory grant of jurisdiction. See, e.g.,

Bocova v. Gonzales, 412 F.3d 257, 267 (1st Cir. 2005) (“We

regard [28 U.S.C § 2349] as authorizing courts of appeals, in

immigration cases, to suspend (that is, to stay) the running of

unexpired voluntary departure periods.”); Lopez-Chavez v.

Ashcroft, 383 F.3d 650, 653 (7th Cir. 2004) (citing approvingly

those courts holding “that courts retain the equitable power to stay

voluntary departure orders”); Rife v. Ashcroft, 374 F.3d 606, 615

(8th Cir. 2004) (“The grant or denial of a stay pending appeal is a

customary part of the judicial function.”) (citing Fed. R. App. P.

8); El Himri v. Ashcroft, 344 F.3d 1261, 1262 (9th Cir. 2003)

(adopting Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1175-78

(9th Cir. 2003) (Berzon, J., concurring) (holding that courts of

appeals have both equitable jurisdiction and a statutory grant of

jurisdiction over motions to stay the voluntary departure period));

Nwakanma v. Ashcroft, 352 F.3d 325, 327 (6th Cir. 2003) (holding

that “equitable power of the courts of appeals extends to stays of

voluntary departure”); but see Ngarurih v. Ashcroft, 371 F.3d 182,

193 (4th Cir. 2004) (holding that Section 1229c specifically

precludes review of a denial of a request for voluntary departure).

3

alternative to removal under certain circumstances.2 Permission

for voluntary departure is significant because it allows the alien

to depart the United States at his or her own expense without

being subject to the penalties and restrictions that removal

imposes. An alien who is removed may not reenter the United

States without the Attorney General’s permission for ten years.

Id. at 279. In contrast, an alien who is granted voluntary

departure may reenter the United States once he or she has

obtained proper documentation. Id. The Government contends

that we do not have jurisdiction over Obale’s motion to stay the

period of voluntary departure because “the authority to reinstate

or extend the privilege of voluntary departure is solely within the

discretion of the Attorney General.” Resp’t Letter Mem. dated

Jan. 11, 2006, at 4.

No extensive citation is needed for the principle that

“[t]he jurisdiction of the Courts of Appeal is limited to that

conferred by statute.” Vineland Chem. Co. v. United States,

EPA, 810 F.2d 402, 405 (3d Cir. 1987). Thus, our jurisdiction

over Obale’s motion, if we have it, must be conferred by the

INA or other relevant statute. See Union Switch & Signal Div.

Am. Standard Inc. v. United Elec., Radio and Mach. Workers

Local 610, 900 F.2d 608, 612 (3d Cir. 1990). Although a

statutory basis for jurisdiction is required, we have stated that

“case law caution[s] this court not to construe appellate review

provisions too narrowly.” Williams v. Metzler, 132 F.3d 937,

943 (3d Cir. 1997) (alteration in original) (citation and internal

quotation marks omitted). Moreover, “[t]he presumption of

judicial review in the face of statutory silence has become a part

of the fabric of the Administrative Procedure Act.” United

2

An alien is eligible for voluntary departure when the alien

has been physically present in the United States for a period of at

least one year immediately preceding the date the notice to appear

was served; the alien is and has been a person of good moral

character for at least five years immediately preceding the alien’s

application for voluntary departure; the alien is not deportable

under section 1227(a)(2)(A)(iii) or section 1227(a)(4); and the alien

has established by clear and convincing evidence that s/he has the

means to depart the United States and intends to do so. 8 U.S.C.

1229c(b)(1)(A)-(D).

4

States v. Herman, 589 F.2d 1191, 1210 (3d Cir. 1978) (Garth, J.,

concurring in part and dissenting in part). To support a finding

that Congress intended to preclude judicial review of an

administrative action, there must be “clear and convincing

evidence,” such as that “provided by the language of the statute.”

Southern Ry. Co. v. Seaboard Allied Milling Corp., 442 U.S.

444, 462 (1979) (citation and internal quotation marks omitted).

When reviewing agency decisions, courts of appeals have

jurisdiction “of the proceeding.” 28 U.S.C. § 2349(a).3 In the

immigration context, there are numerous exceptions to this

general grant of jurisdiction. The INA expressly precludes our

jurisdiction to review either a denial or a grant of a request for

voluntary departure. See 8 U.S.C. § 1229c(f) (“No court shall

have jurisdiction over an appeal from denial of a request for an

order of voluntary departure . . . , nor shall any court order a stay

of an alien’s removal pending consideration of any claim with

respect to voluntary departure.”); see also 8 U.S.C. §

1252(a)(2)(B)(I) (“[N]o court shall have jurisdiction to review . .

. any judgment regarding the granting of relief under section . . .

1229c[.]”) In addition, this court has held that it does not have

jurisdiction to reinstate the period of voluntary departure after it

has expired. Reynoso-Lopez, 369 F.3d at 280.

These statutory provisions may suggest that we have no

jurisdiction to review a motion for a stay of voluntary departure,

but they do not so provide explicitly. “[W]henever Congress

wanted to oust the jurisdiction of the courts, it not only knew

how to do it but did so in no uncertain terms.” Arrow Trans. Co.

v. Southern Ry. Co., 372 U.S. 658, 679 (1963) (Clark, J.,

dissenting); see also Chamakov v. Blackman, 266 F.3d 210, 214

(3d Cir. 2001). It follows that we have jurisdiction over all

3

We note that the word “proceeding” is not defined in the

statute. Thus, we must interpret the term according to its “ordinary

meaning.” See Heil-Coil Corp. v. Webster, 352 F.2d 156, 167 (3d

Cir. 1965) (en banc). Black’s Law Dictionary defines

“proceeding” as “[t]he regular and orderly progression of a

lawsuit, including all acts and events between the time of

commencement and the entry of judgment.” Black’s Law

Dictionary 1241 (8th ed. 2004).

5

matters related to a particular proceeding except where Congress

has explicitly stated otherwise. Given that Congress has

explicitly stated the courts of appeals may not hear appeals from

grants or denials of voluntary departure, it is reasonable to

conclude that if Congress wished to strip this court of

jurisdiction to grant stays of voluntary departure, it would have

done so. Inasmuch as Obale’s petition for a stay of the period of

voluntary departure is a part of the proceedings below and

Congress has not explicitly denied this court jurisdiction over

such a motion, we conclude, in accordance with the majority of

the courts of appeals that have considered the issue, see note 1

supra, that we have jurisdiction over Obale’s motion.

The Government argues that we answered the question of

our jurisdiction in Reynoso-Lopez, where we held that we do not

have jurisdiction to reinstate the period of voluntary departure

after it expires. According to the Government, the fact that

Obale characterizes her request as a “stay” of the voluntary

departure period, rather than a reinstatement or extension, is

irrelevant.4

We reject the Government’s contention that our holding

in Reynoso-Lopez governs this case. In Reynoso-Lopez, we

addressed the narrow issue of whether a court may extend the

period of voluntary departure after it had terminated. We noted

that regulations promulgated pursuant to IIRIRA clearly state

that “‘[a]uthority to extend the time within which to depart

voluntarily specified initially by an immigration judge or the

Board is only within the jurisdiction of the district director, the

Deputy Executive Associate Commissioner for Detention and

Removal, or the Director of the Office of Juvenile Affairs.’” 369

4

To support this contention, the Government cites our non-

precedential opinion in Hadi v. Att’y Gen., No. 04-3343, 2005 WL

2811787 (3d Cir. Oct. 27, 2005), in which we stated that “[w]e find

this difference legally insignificant.” Id. at *5. We note that

because our opinion in Hadi is non-precedential, we are not bound

by it. See Fallon Elec. Co. v. Cincinnati Insur. Co., 121 F.3d 125,

128 n.1 (3d Cir. 1997) (“[T]he Court does not regard such opinions

as binding precedent.”). Thus, it has no bearing on whether we

have jurisdiction over Obale’s stay request.

6

F.3d at 280 (alteration in original) (quoting 8 C.F.R. 1240.26(f)).

We concluded that under IIRIRA, the executive branch is given

the sole authority to reinstate a voluntary departure period after it

has expired.

We considered the effect of Reynoso-Lopez in Kanivets

v. Gonzales, 424 F.3d 330 (3d Cir. 2005), where we noted its

limited holding. In Kanivets, we held that the alien’s timely

motion to reopen tolled the voluntary departure period until the

BIA decided the merits of the case. We stated, “Reynoso-Lopez .

. . is . . . distinguishable. . . . That is a different situation from

that presented here where we hold that tolling applies during the

period of time that the BIA deliberates on a timely motion to

reopen.” Id. at 335. To the extent that Reynoso-Lopez contains

language that suggests that its analysis extends to motions for

stays of voluntary departure, 369 F.3d at 283, such language is

dicta.5 The language in Reynoso-Lopez that discusses the

similarities between tolling and reinstatement is not necessary to

the holding in that case.

Unlike the power to extend or reinstate the voluntary

departure period, the power to stay it is part of the federal courts’

traditional equitable powers. “The power to stay is incidental to

the power inherent in every court to dispose of cases so as to

promote their fair and efficient adjudication.” United States v.

Breyer, 41 F.3d 884, 893 (3d Cir. 1994). “Unless otherwise

provided by statute, all the inherent equitable powers of the

[federal courts] are available for the proper and complete

exercise of [the courts’] jurisdiction.” Porter v. Warner Holding

Co., 328 U.S. 395, 398 (1946); see also Tanimura & Antle, Inc.

v. Packed Fresh Produce, Inc., 222 F.3d 132, 137 (3d Cir. 2000)

(citation and quotation marks omitted) (stating that “absent a

clear congressional command to the contrary, federal courts

retain their authority to issue injunctive relief in actions over

which they have jurisdiction”). We find no indication that

5

Dictum is “‘a statement in a judicial opinion that could

have been deleted without seriously impairing the analytical

foundations of the holding[.]’” In re McDonald, 205 F.3d 606, 612

(3rd Cir. 2000) (quoting Sarnoff v. Am. Home Prod. Corp., 798

F.2d 1075, 1084 (7th Cir. 1986)).

7

Congress intended to eliminate this court’s equitable jurisdiction

to grant a stay of the voluntary departure period. Thus, if the

BIA’s grant of voluntary departure is set forth as part of a “final

order” within the meaning of 28 U.S.C. § 1252, this court has

jurisdiction to grant a stay of that period.

III.

“It is hornbook law that an administrative order to be

subject to judicial review must be ‘final’.” Lam Man Chi v.

Bouchard, 314 F.2d 664, 670 (3d Cir. 1963). “[A] final order

need not necessarily be the very last order in an agency

proceeding, but rather, is final for purposes of judicial review

when it impose[s] an obligation, den[ies] a right, or fix[es] some

legal relationship as a consummation of the administrative

process.” Shea v. Office of Thrift Supervision, 934 F.2d 41, 44

(3d Cir. 1991) (alteration in original) (citation, internal quotation

marks, and emphasis omitted).

The generally applicable requirement of finality is

expressly incorporated in the INA, which provides that when

reviewing immigration proceedings, courts of appeals have

jurisdiction to review only “final orders of removal.” Section

1252(b)(9) specifically provides: “Judicial review of all

questions of law and fact . . . arising from any action taken or

proceeding brought to remove an alien from the United States

under this subchapter shall be available only in judicial review of

a final order under this section.” 8 U.S.C. § 1252(b)(9)

(emphasis added).6

6

In addition, section 1252(a)(1) provides that “Judicial

review of a final order of removal . . . is governed only by [28

U.S.C. §§ 2341-2351], except as provided in [§ 1252(b)].”

Section 1252(a)(5) provides that

a petition for review filed with an appropriate court

of appeals in accordance with this section shall be

the sole and exclusive means for judicial review of

an order of removal entered or issued under any

provision of this chapter . . . .

8

The term “order of deportation,” and the point at which

such an order becomes “final,” are defined at 8 U.S.C. §

1101(a)(47).7 That section provides:

(A) The term “order of deportation” means the

order of the special inquiry officer, or other such

administrative officer to whom the Attorney General has

delegated the responsibility for determining whether an

alien is deportable, concluding that the alien is deportable

or ordering deportation.

(B) The order described under subparagraph (A)

shall become final upon the earlier of–

(i) a determination by the Board of

Immigration Appeals affirming such order;

or

(ii) the expiration of the period in which the

alien is permitted to seek review of such order by

the Board of Immigration Appeals.

8 U.S.C. § 1101(a)(47)(A)-(B) (emphasis added).

Over thirty years ago, the Supreme Court held that a

simultaneous grant of voluntary departure did not affect the

finality of an order of removal. In Foti v. INS, 375 U.S. 217

(1963), the Supreme Court noted that “[t]he granting of

voluntary departure relief does not result in the alien’s not being

subject to an outstanding final order of deportation.” Id. at 220

n. 1. Although the Court did not provide citation or explanation

for this assertion, its view was consistent with then-current

administrative regulations. Section 243.1 of volume 8 of the

Code of Federal Regulations, which was originally issued in

1961 and remained in force until 1997, provided that “an order

7

Section 309(d)(2) of IIRIRA provides that “[f]or purposes

of carrying out the Immigration and Nationality Act, as amended

by this subtitle- . . . (2) any reference in law to an order of removal

shall be deemed to include a reference to an order of exclusion and

deportation or an order of deportation.” 110 Stat. 3009 (1996).

9

of deportation, including an alternate order of deportation

coupled with an order of voluntary departure,

. . . shall become final upon dismissal of an appeal by the Board

of Immigration Appeals . . .; or, . . . it shall be final as of the date

of the Board’s decision.” 8 C.F.R. § 243.1 (1997). Courts

relied on Foti and § 243.1 for the proposition that voluntary

departure did not affect the finality of a removal order. See, e.g.,

Karimian-Kaklaki v. INS, 997 F.2d 108, 112 (5th Cir. 1993)

(“The privilege of voluntary departure granted to petitioners is

irrelevant to the finality (and thus appealability) of the BIA

order.”) (citing Foti, 375 U.S. at 219 n.1, and 8 C.F.R. § 243.1

(1993)); Hadera v. INS, 136 F.3d 1338, 1340-41 (D.C. Cir.

1998) (citing Foti, 375 U.S. at 219 n.1, Karimian-Kaklaki, 997

F.2d at 112, and 8 C.F.R. § 243.1 (1997)).

In 2005, however, the Department of Homeland Security

(“DHS”) issued administrative regulations which state that an

order is not final until the period of voluntary departure has

expired.8 The current regulation governing the finality of

8

When the former-INS issued the interim rules in 1997,

following a notice of proposed rulemaking and an abbreviated

comment period, it issued the following explanation regarding the

regulations’ general treatment of voluntary departure periods:

[S]everal commenters requested clarification

regarding the effect of a motion or appeal to the

Immigration Court, BIA, or a federal court on any

period of voluntary departure already granted. . . .

Regarding post-hearing voluntary departure, the

Department considered several options, but has not

adopted any position or modified the interim rule.

The Department has identified three possible

options: no tolling of any period of voluntary

departure; tolling the voluntary departure period for

any period that an appeal or motion is pending; or

setting a brief, fixed period of voluntary departure

(for example, 10 days) after any appeal or motion is

resolved. The Department wishes to solicit

additional public comments on these or other

possible approaches to this issue so that it can be

10

removal orders, the voluntary departure provision of which

appears to have gone wholly unaddressed by the courts since its

issuance in 1997, now reads:

An order of removal made by the immigration

judge at the conclusion of proceedings under

section 240 of the Act shall become final:

(a) Upon dismissal of an appeal by the Board of

Immigration Appeals;

(b) Upon waiver of appeal by the respondent;

(c) Upon expiration of the time allotted for an appeal if

the respondent does not file an appeal within that time;

(d) If certified to the Board or Attorney General, upon the

date of the subsequent decision ordering removal;

(e) If an immigration judge orders an alien removed in the

alien’s absence, immediately upon entry of such order; or

(f) If an immigration judge issues an alternate order of

removal in connection with a grant of voluntary

departure, upon overstay of the voluntary departure

period except where the respondent has filed a timely

appeal with the Board. In such a case, the order shall

resolved when a final rule is promulgated.

Inspection and Expedited Removal of Aliens, 62 Fed. Reg. 10,312,

10,325-26 (Mar. 6, 1997) (interim rule). Curiously, the DHS does

not appear to have ever issued a follow-up statement explaining its

final position with regard to the tolling of voluntary departure on

appellate review. The regulation remained unaddressed as an

interim rule until finalized, without pertinent comment, in 2005.

Execution of Removal Orders, 70 Fed. Reg. 661, 673 (Jan. 5,

2005). By then, the regulation had become a final rule, but the

DHS does not appear to have ever substantively addressed the

question it left open in its commentary to the interim rules.

11

become final upon an order of removal by the Board or

the Attorney General, or upon overstay of any voluntary

departure period granted or reinstated by the Board or the

Attorney General.

8 C.F.R. § 1241.1 (2005).

Section 1241.1(f) provides that when an IJ has issued an

alternate order of removal in connection with a grant of

voluntary departure, the order does not become “final” until the

alien overstays the period for voluntary departure. But, if the

alien files a timely appeal with the BIA, then the order becomes

final either when the BIA issues an order of removal (implicitly

unaccompanied by a grant of voluntary departure) or, if the BIA

reinstates or grants a period of voluntary departure, upon

overstay of the BIA’s new voluntary departure period.

Because § 1241.1(f) of the regulations would be

inconsistent with the statutory definition of a final order of

removal if applied to determine finality for purposes of judicial

review, we decline to enforce it here. As noted supra, the

relevant statute, 8 U.S.C. § 1101(a)(47)(A), provides that an

“order of [removal]” means the order “concluding that the alien

is [removable] or ordering [removal].” Such orders become final

upon “a determination by the Board of Immigration Appeals

affirming such order.” 8 U.S.C. § 1101(a)(47)(B). Thus, the

statutory definition of an order of removal encompasses not only

orders actually ordering removal, but also orders in which an IJ

merely determines that an alien is removable and issues a

contingent order of removal. Accordingly, we conclude that the

IJ determined that Obale was removable on the date she issued

her alternate order of removal and that the BIA’s affirmance of

that determination effected a “final” order on the date of the

BIA’s decision.9

9

Enforcement of 8 C.F.R. § 1241.1 in cases where an alien

voluntarily departs would deprive the alien of the opportunity to

seek judicial review. That is – if there is no final order of removal

until “overstay of any voluntary departure period,” then there is

never a final order when the respondent voluntarily departs in a

timely fashion. Such an outcome would be inconsistent with

12

IV.

We turn now to the substantive standards for evaluating a

motion to stay the running of a previously granted voluntary

departure period. We concur with the courts of appeals that have

held the standard for obtaining a stay of removal also applies to

stays of voluntary departure.10 See, e.g., Bocova, 412 F.3d at

269-70; Rife, 374 F.3d at 616; El Himri v. Ashcroft, 344 F.3d

1261, 1262 (9th Cir. 2003); Nwakanma v. Ashcroft, 352 F.3d

325, 327 (6th Cir. 2003).

Congressional intent. Congress enacted 8 U.S.C. § 1252(b)(3)(B)

in order to permit judicial review of a removal order even if the

alien has departed the United States. See Reynoso-Lopez, 369

F.3d at 281 (citing 8 U.S.C. § 1252(b)(3)(B)); cf. 8 U.S.C. §

1105a(c) (1994) (repealed). Moreover, § 1241.1(f)’s suggestion

that the time period for filing a timely petition for review in a

situation like this begins to run on the date the petitioner overstays

his voluntary departure is inconsistent with the common practice of

the BIA and of courts of appeals. See, e.g., In re Goolcharan, 23

I. & N. Dec. 5 (BIA 2001); Harchenko v. INS, 379 F.3d 405, 409

(6th Cir. 2004).

We note, however, that § 1241.1 may have been intended

solely to specify when an order of removal may be executed, as

opposed to when an order of removal is final for purposes of

review. Indeed, this may explain the Government’s failure to

mention the regulation in its briefing.

10

Courts are divided on the issue of whether courts should

read a petition for a stay of removal as implicitly including a

petition for stay of voluntary departure. The Sixth, Eighth, and

Ninth Circuits incorporate a request for a stay of departure into

requests for stay of removal. See Macotaj v. Gonzales, 424 F.3d

464, 467 (6th Cir. 2005); Rife, 374 F.3d at 616; Desta, 365 F.3d at

745-46. The First and Seventh Circuits have rejected that view and

require a particularized request for a stay of voluntary departure.

See Bocova, 412 F.3d at 268; Alimi v. Ashcroft, 391 F.3d 888,

892-93 (7th Cir. 2004). We express no view on the question.

13

We apply the standard for granting a preliminary

injunction when examining a petition for a stay of removal,

Douglas v. Ashcroft, 374 F.3d 230, 234 (3d Cir. 2004), and

therefore also when considering a petition for a stay of voluntary

departure. Under the preliminary injunction standard, a

petitioner requesting a stay of removal must demonstrate: (1) a

likelihood of success on the merits of the underlying petition; (2)

that irreparable harm would occur if a stay is not granted; (3)

that the potential harm to the moving party outweighs the harm

to the opposing party if a stay is not granted; and (4) that the

granting of the stay would serve the public interest. Id. at 233.

Because this court, applying this test, previously granted

Obale’s petition for a stay of removal, we will also grant the

petition for a stay of voluntary departure pending our final

decision on the merits of this case. See Desta, 365 F.3d at 748

(“If an alien is eligible for a stay of removal, he is necessarily

eligible for a stay of voluntary departure.”); but see Bocova, 412

F.3d at 270 (concluding that “there may be cases in which an

alien is entitled to a stay of removal but not a stay of voluntary

departure”); Alimi, 391 F.3d at 892-93 (same).

V.

To qualify for asylum, Obale must demonstrate that she

meets the statutory definition of “refugee” under the INA. A

refugee is “[a]ny person who is outside any country of such

person's nationality . . . and who is unable or unwilling to return

to . . . 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

. . . .” 8 U.S.C. § 1101(a)(42).

The threshold for establishing eligibility for withholding

of removal is higher than that for establishing entitlement to

asylum and requires the alien to demonstrate a “clear

probability” that, upon removal to the country of origin, his or

her “life or freedom would be threatened on account of one of

the statutorily enumerated factors.” Senathirajah v. INS, 157

F.3d 210, 215 (3d Cir. 1998). An applicant who does not qualify

for asylum necessarily does not qualify for withholding of

14

removal. Guo v. Ashcroft, 386 F.3d 556, 561 n.4 (3d Cir. 2004).

To qualify for relief under the CAT, an applicant for relief bears

the burden of proving through objective evidence that “it is more

likely than not” that s/he would be “tortured” in the country to

which the applicant would be removed. Wang v. Ashcroft, 368

F.3d 347, 349 (3d Cir. 2004); 8 C.F.R. § 1208.16(c)(2).

Where, as here, the BIA affirms the IJ's decision without

opinion, “we review the IJ's opinion and scrutinize its

reasoning.” Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003)

(en banc). Review of an IJ’s decision is conducted under the

substantial evidence standard, which requires that administrative

findings of fact be upheld “unless any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C. §

1252(b)(4)(B); Zheng v. Gonzales, 417 F.3d 379, 381 (3d Cir.

2005). “‘[D]eference is not due where findings and conclusions

are based on inferences or presumptions that are not reasonably

grounded in the record as a whole.’” Balasubramanrim v. INS,

143 F.3d 157, 161 (3d Cir. 1998) (quoting Cordero-Trejo v. INS,

40 F.3d 482, 487 (1st Cir. 1994)).

A.

In her asylum application, Obale stated that she feared

persecution by the Cameroonian government based on her

political opinions. She and her family had been active in the

Southern Cameroon National Counsel (“SCNC”), a group that

advocates for greater rights for Anglophone Cameroonians and

secession from Cameroon. Natives of the Anglophone regions

of Cameroon suffer disproportionately from human rights

violations at the hands of the government and its security forces.

The 2003 State Department Country Report on Cameroon stated

that the Cameroonian government’s human rights record is poor,

and there have been numerous reports of government forces

arresting and detaining opponents of the government for long

periods of time without bringing any charges.

Obale testified that she believed that her father, who was

the Provincial Chief of National Security in Cameroon’s

northern province, was executed by government forces for his

sympathy for SCNC. Government forces went to Obale’s home

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seeking her father and took him away with them. The day after

taking him from the family, Obale’s family was informed that

her father was dead.

Obale stated that her two uncles, Agbor Jerome and

Agbor Bessong, were also active in SCNC. They fled Cameroon

and were granted asylum in Germany and the United States,

respectively. Agbor Jerome returned to Cameroon and was

rumored to have been poisoned by Cameroonian government

forces as a result of his SCNC activities.

Obale testified that she was also active in SCNC, which

she joined shortly after her father’s death. She was an active

demonstrator and was arrested and detained three times as a

result. She testified that her captors would threaten her and

“push,” “grab,” and “grope” her. In July 1996, she was arrested

for participating in a demonstration. She was detained for one

night. In March 1997, she was again arrested for demonstrating

and was detained for three days. In April 1997, two policemen

came to Obale’s home and took her to the police station. She

alleges that she was threatened and forced to sign a statement

promising not to demonstrate again.

Obale also stated that her brother, Nkongho Obale, and

sister, Agbor Obale, were involved with the SCNC and were

seeking asylum in the United States.11 Obale’s brother’s

petition for asylum was granted. Her sister’s application was

deemed time- barred because it was filed more than one year

after she had entered the county.12

11

Agbor Obale was allegedly Obale’s twin sister, though

Obale did not initially so testify.

12

The Government contends that Obale’s petition for

asylum is also time barred pursuant to 8 U.S.C. § 1158(a)(2)(B);

it was filed approximately three years after her visa expired and

five years after she entered the country. Neither the IJ nor the BIA

made any finding regarding the timeliness of the petition. 8 U.S.C.

§ 1158(a)(3) provides that “[n]o court shall have jurisdiction to

review any determination of the Attorney General” regarding the

timeliness of a petition. Because the Attorney General has not

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The IJ initially expressed an inclination to find Obale

credible, but continued Obale’s asylum hearing in order to

permit the Government to submit Obale’s sister and brother’s I-

589s 13 into evidence. After reviewing Agbor Obale and

Nkongho Obale’s respective I-589s, the IJ denied Obale’s

petition for relief. Neither Agbor nor Nkongho made any

mention of Obale in their applications. Nkongho’s I-589 only

referred to the general suffering of the women in his family, with

no specific reference to his sisters. Moreover, Obale did not

mention Agbor in her I-589.

The IJ concluded that there was “a little credibility

problem” stating that “[t]he absence of a reliable proof of the

twin is significant, because it would have provide [sic]

corroboration that the Court would reasonably expect the

respondent to show in support of her claim.” App. at 7-8. The IJ

also found “implausible [Obale]’s explanation as to how she lost

her birth certificate, and could not otherwise obtain another

original copy[.]” App. at 5. Therefore, she denied Obale all

forms of relief.

B.

The IJ’s bases for denying Obale relief are somewhat

confusing because the IJ appears to have confused lack of

corroboration with lack of credibility. Nonetheless, a close

reading of the opinion demonstrates that the IJ made an adverse

credibility finding and also found that Obale failed to offer

reasonable corroboration for her claim.

The IJ’s rejection of Obale’s credibility flowed in

substantial part from a lack of sufficient corroboration of

Obale’s claims. While there were some small discrepancies in

made a determination regarding the timeliness of Obale’s petition,

we will disregard its potential untimeliness and evaluate the merits

of the case.

13

An I-589 is an application for asylum and withholding of

removal.

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Obale’s testimony, the IJ’s conclusion was mainly based on

various areas in which corroboration was lacking–namely in

Obale’s brother and sister’s I-589s and their failure to discuss

Obale’s persecution.

This court has made clear that “corroboration and

credibility, although intuitively related, are distinct concepts that

should be analyzed independently.” Toure v. Att’y Gen., 443

F.3d 310, 323 (3d Cir. 2006). The IJ’s conflation of credibility

and corroboration was impermissible. Nonetheless, the IJ’s

failure to make a valid credibility determination does not affect

the result in this case because her reasonable requests for

corroboration were inexplicably unmet. As we stated in Chen v.

Gonzales, 434 F.3d 212 (3d Cir. 2005), “even a credible asylum

applicant may be required to supply corroborating evidence in

order to meet [her] burden of proof. If the IJ’s decision . . . is

supported by substantial evidence in the record, then [her] failure

to make a valid credibility determination would not bar this

Court’s denial of the petition for review without a remand.” Id.

at 221 (citation and internal quotation marks omitted).

The BIA has adopted rules which require corroboration in

instances where it is reasonable to expect such proof from a

witness and there is no satisfactory explanation for its absence.

These rules were sustained in Abdulai v. Ashcroft, 239 F.3d 542

(3d Cir. 2001), in which this court observed that even where an

applicant is credible, corroboration may be required if the

applicant is to meet her burden of proof. Id. at 554; see also

Chen, 434 F.3d at 221.

The BIA’s rule on corroboration involves a three step

analysis: (1) an identification of facts for which it is reasonable

to expect corroboration; (2) the presence or absence of such

corroboration in the record; and (3) the adequacy of applicant's

explanation for its absence. In re S-M-J-, 21 I. & N. Dec. 722,

725 (BIA 1997). The third prong presumes that the IJ offers a

petitioner an opportunity to explain the absence. See Mulanga v.

Ashcroft, 349 F.3d 123, 136 (3d Cir. 2003) (holding that the IJ

erred by not alerting the petitioner during the removal

proceedings that the absence of corroboration of relevant facts

would lead to the denial of her application, thereby giving her an

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opportunity to explain her inability to corroborate).

The IJ’s expectation that Obale’s siblings would mention

Obale’s persecution in her I-589 and thus corroborate her

testimony is entirely reasonable. The IJ noted, “[b]ased on the

alleged level of persecution [sic] the respondent . . . [t]he court

would reasonably expect the brother who testified that he had

knowledge of respondent’s arrest and detention, to mention it

specifically in his I-589[.]” App. at 7. Agbor Obale was

Obale’s roommate and the two lived together in Delaware.

Obale could easily have met the IJ’s request for corroboration of

her alleged persecution and the existence of a twin sister by

having her sibling testify.

The IJ clearly engaged in the first two steps of the

analysis by noting the reasonable information she sought and its

absence from the record. In addition, she continued the hearing

twice specifically in order to have an opportunity to review

Obale’s siblings’ I-589s. She stated, “this is a close case, it

really is, right now . . . and that’s why I really want to see the . . .

siblings [sic] application.” A.R. 202. Therefore, Obale was on

notice that the contents of these applications were of great

import to the IJ and might be dispositive. Nonetheless, she

completely failed to provide any explanation for the fact that the

asylum applications of her siblings make no reference to her past

persecution.

VI.

Because Obale failed to provide reasonable corroboration

of her claim, we will deny her petition for review. Accordingly,

the remaining two days in the thirty day period in which Obale

may voluntarily depart the United States in accordance with the

BIA’s order shall begin to run with the issuance of the mandate

in this appeal.

__________________

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