Ilunga v. Attorney General of the United States

Opinions of the United

2009 Decisions States Court of Appeals

for the Third Circuit

3-20-2009

Ilunga v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1521

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 08-1521

BIBICHE KIKWANZI ILUNGA,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

On Petition for Review of a Decision of the

Board of Immigration Appeals

BIA No. A98-730-753

(U.S. Immigration Judge: Honorable R. K. Malloy)

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 18, 2009

Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges

(Filed: March 20, 2009)

OPINION OF THE COURT

PER CURIAM.

Petitioner Bibiche Kikwanzi Ilunga seeks review of a final decision by the Board

of Immigration Appeals (“BIA”) issued on January 24, 2008. For the reasons that follow,

we will dismiss in part and deny in part the petition for review.

I. Background

Ilunga is a native and citizen of the Democratic Republic of the Congo. She

claims that she suffered persecution and torture – including, rape, abuse, and forced

enslavement to a military general – because of her father’s political affiliation. Ilunga

was served with a notice to appear. She conceded removability, and on February 18,

2005, with the assistance of counsel, applied for asylum, withholding of removal, and

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

After a hearing at which Ilunga appeared as the sole witness, the Immigration

Judge (“IJ”) denied Ilunga’s application, ordered her removal, and granted voluntary

departure. The IJ held that Ilunga failed to show that she applied for asylum within one

year of her arrival in the United States, and therefore denied her asylum application as

untimely. The IJ also held that, largely because of her failure to present corroborating

evidence, Ilunga failed to meet her burden of establishing eligibility for asylum,

withholding of removal, or protection under the CAT. Ilunga appealed to the BIA.

In a January 24, 2008, decision, the BIA concluded that Ilunga failed to show that

the IJ’s findings of fact were clearly erroneous, and upheld the IJ’s decision that Ilunga

untimely filed her asylum application and failed to meet her burden of establishing

eligibility for relief. Adopting the reasons discussed by the IJ, the BIA dismissed Ilunga’s

appeal. This timely petition for review followed.

2

II. Analysis

We generally review only final orders of the BIA. See Li v. Att’y Gen., 400 F.3d

157, 162 (3d Cir. 2005); Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir. 2001).

However, where the BIA adopts the IJ’s reasoning and discusses some of the bases of the

IJ’s decision, we also review the order of the IJ. Chen v. Ashcroft, 376 F.3d 215, 222 (3d

Cir. 2004).

A. Asylum

An asylum applicant must demonstrate by clear and convincing evidence that her

application was filed within one year after her arrival in the United States. INA

§ 208(a)(2)(B) [8 U.S.C. § 1158(a)(2)(B)]. However, an otherwise untimely asylum

application may be considered “if the alien demonstrates . . . extraordinary circumstances

relating to the delay in filing an application within the [one year] period. . . .” INA

§ 208(a)(2)(D) [8 U.S.C. § 1158(a)(2)(D)].

Here, the BIA upheld the IJ’s conclusion that Ilunga failed to demonstrate through

clear and convincing evidence that she filed her asylum application within the one-year

statutory period. Ilunga does not dispute the conclusion that she failed to show that her

application was timely filed. However, she argues that the untimeliness should be

excused because she suffered from post-traumatic stress disorder as reflected in an expert

affidavit, and also because she “was at the mercy of the legal guidance of a notario.”

3

Absent a constitutional claim or question of law, we lack jurisdiction to review a

determination regarding the timeliness of an asylum application or the existence of

changed or extraordinary circumstances justifying late filing. INA § 208(a)(2), (3) [8

U.S.C. § 1158(a)(2), (3)]; INA § 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D)]; Sukwanputra

v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006); Tarrawally v. Ashcroft, 338 F.3d 180, 185

(3d Cir. 2003). Ilunga does not raise a constitutional claim or question of law relating to

the timeliness determination. Accordingly, we will dismiss Ilunga’s petition for review to

the extent it presents a challenge to the denial of her asylum application.1

B. Withholding of Removal

To qualify for withholding of removal pursuant to INA § 241(b)(3)(A) [8 U.S.C.

§ 1231(b)(3)(A)], Ilunga bore the burden of demonstrating a “clear probability” of future

persecution – that “it is more likely than not” that she would be persecuted if she were to

return to the Congo. See INS v. Cardoza-Fonseca, 480 U.S. 421, 449-50 (1987). In

concluding that Ilunga failed to meet her burden of proof, the BIA upheld the IJ’s finding

that Ilunga was not credible because of inconsistencies concerning the nature and

circumstances of events prompting her to come to the United States. We review adverse

credibility determinations for substantial evidence. Chen v. Ashcroft, 376 F.3d 215,

1

In addition, Ilunga did not present to the BIA her argument that her untimeliness

should be excused due to the poor legal guidance of a “notario.” We lack jurisdiction to

address arguments in a petition for review that were not exhausted before the BIA. INA

§ 242(d)(1) [8 U.S.C. § 1252(d)(1)]; see also Abdulrahman v. Ashcroft, 330 F.3d 587,

594-95 (3d Cir. 2003).

4

221-22 (3d Cir. 2004). We must uphold the adverse credibility determination unless the

evidence of Ilunga’s credibility is so strong “that in a civil trial [s]he would be entitled to

judgment on the credibility issue as a matter of law.” Chen, 376 F.3d at 222.

We conclude that the adverse credibility determination rests upon substantial

evidence. The IJ provided specific, cogent reasons for the determination, including

multiple conflicts and inconsistencies in Ilunga’s evidence concerning her experiences in

and departure from the Congo 2 and her arrival in the United States.3 Many of these

conflicts go to the “heart” of Ilunga’s claims. See Berishaj v. Ashcroft, 378 F.3d 314,

323 (3d Cir. 2004).

2

For instance, Ilunga testified that she suffered persecution beginning when her family

was attacked in July 1997 on account of her father’s political beliefs, and that, at that

time, Ilunga was abducted and forced to become the mistress of a general, and two of her

sisters were murdered. However, the IJ noted that, although Ilunga sought relief based on

her father’s political beliefs, she did not testify that the July 1997 violence occurred on

account of her father’s politics, or that her father was even present during the attack. The

IJ also noted that the documents Ilunga submitted reflected that the attack took place in

either February of 1996 or February of 1997, not in July 1997. Third, the IJ observed that

Ilunga’s affidavit indicated that she attended high school until 1998, which conflicted

with her testimony that she was abducted in July 1997.

3

For instance, the IJ noted that although Ilunga testified that she could not recall the

year in which she arrived in the United States, her application stated specifically that she

arrived on February 4, 2004. In addition, Ilunga testified that she was able to escape from

the general after arriving in the United States because his bodyguards did not accompany

them. However, her affidavit stated that she arrived in the United States accompanied by

the general and his bodyguards. Next, Ilunga testified that she escaped from the general

with the assistance of two Congolese women whom she had met at the hotel where she

was being held, and that these women introduced her several days later to the “asylum

preparer.” However, this conflicted with a letter submitted by the “asylum preparer,”

indicating that he assisted Ilunga in her escape.

5

The IJ postulated that many of the inconsistencies and conflicts between Ilunga’s

testimony and her documentary evidence arose because Ilunga had been the “victim” of

an “asylum preparer,” who had fabricated her application. Ilunga argues that the

fabricated documents must be ignored in assessing her credibility. Relying on the BIA’s

decision in Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987) (holding that “the

lack of [corroborating] evidence will not necessarily be fatal to the application”), she

contends that her testimony alone was sufficient to meet her burden of proof.

In Mogharrabi, the BIA recognized that applicants may face difficulties in

obtaining corroborating evidence, and “[a]lthough every effort should be made to obtain

such evidence,” its absence does not necessarily prohibit relief. Id. However,

Mogharrabi does not speak to a situation where, as here, the applicant did submit

evidence, but the evidence was fabricated and thus undermined, rather than corroborated,

the claim. Moreover, Mogharrabi recognized that unsupported testimony need not be

accepted as true, particularly where, as here, inconsistencies are apparent. Id. at 446.

Neither the BIA nor the IJ concluded that Ilunga’s documentary submissions must

be ignored or excused. Ilunga did not withdraw her application or evidence, and she

offers no support for the contention that it was error to consider her submissions in

reaching conclusions concerning the credibility of her claims. Indeed, although the IJ

concluded that Ilunga may have testified credibly in some (unspecified) respects, the IJ

ultimately found that “[i]t truly is a mystery what actually happened to the respondent.”

6

To clarify this “mystery,” the IJ desired corroboration of Ilunga’s claims. Ilunga

argues that the IJ applied a “legally incorrect bright line test” that unnecessarily

demanded corroboration where none was required. We disagree. A failure to provide

corroborating evidence may undermine an applicant’s case where: (1) the IJ identifies

facts for which it is reasonable to expect corroboration; (2) the applicant fails to

corroborate; and (3) the applicant fails to adequately explain the failure to corroborate.

Chukwu v. Att’y Gen., 484 F.3d 185, 191-92 (3d Cir. 2007). Indeed, even a credible

applicant may be asked to provide evidence corroborating the specifics of her testimony if

it is reasonable to expect the applicant to do so. See Abdulai, 239 F.3d at 554.

We conclude that the request for corroboration was reasonable, particularly given

the conflicting evidence undermining Ilunga’s credibility and the fraudulent documents

submitted in support of her application. Ilunga failed to present any witnesses or

statements to support her claims, and when questioned about the lack of corroborating

evidence, did not provide convincing answers explaining its absence.4 See Chukwu, 484

4

The IJ asked why Ilunga did not present witnesses to corroborate her testimony, such

as the two Congolese women who allegedly helped her escape the general, the coworkers

who allegedly gave her a job, and the individual who prepared her asylum application.

Although Ilunga argued that at least some of these individuals refused to testify because

they are illegal aliens, the IJ noted that this did not adequately explain their failure to

submit written statements. The IJ also asked why Ilunga did not present statements from

her family members in the Congo to corroborate her claims of past persecution. Ilunga

responded that “the country is still not safe.” However, Ilunga also testified that her

father, mother, daughter, and siblings all continue to safely reside in the Congo. The IJ

observed that this conflicts with Ilunga’s claim that she faces danger on account of her

(continued...)

7

F.3d at 191-92.

III. Conclusion

For the foregoing reasons, we will dismiss the petition for review to the extent it

presents a challenge to the determination that the asylum application was untimely. We

will deny the petition for review in all other respects.

4

(...continued)

father’s political beliefs. Indeed, Ilunga testified that her family members were able to

safely contact, meet with, and retrieve her daughter from the custody of the militants who

allegedly posed the threat of persecution. Evidence that family members continue to

reside in the country where the persecution allegedly occurred undermines the claim of a

reasonable fear of future persecution. Toure v. Att’y Gen., 443 F.3d 310, 319 (3d Cir.

2006); Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005).

8