Appendix — Sy v. Keisler (No. 06-1448)
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APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 04-4111
[Filed January 29, 2007]
MAMADOU SY, )
Petitioner, )
)
v. )
)
ALBERTO GONZALES, _)
ATTORNEY GENERAL, _)
Respondent. )
)
ORDER
BEFORE: DAUGHTREY and COLE, Circuit Judges;
and BERTELSMAN’, District Judge.
The court having received a petition for rehearing en
banc, and the petition having been circulated not only to the
original panel members but also to all other active judges of
"Hon. William O. Bertelsman, Senior United States, District Judge
for the Eastern District of Kentucky, sitting by designation.
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this court, and no judge of this court having requested a vote
on the suggestion for rehearing en banc, the petition for
rehearing has been referred to the original panel.
The panel has further reviewed the petition for rehearing
and concludes that the issues raised in the petition were fully
considered upon the original submission and decision of the
case. Accordingly, the petition is denied.
ENTERED BY ORDER OF
THE COURT
/s/Leonard Green
Leonard Green, Clerk
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APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 04-4111
[Filed September 28, 2006]
MAMADOU SY,
Petitioner,
V.
ALBERTO GONZALES,
ATTORNEY GENERAL,
Respondent.
Ne Nee eee eee See”
ON PETITION FOR REVIEW FROM A DECISION
OF THE BOARD OF IMMIGRATION APPEALS
BEFORE: DAUGHTREY and COLE, Circuit Judges; and
BERTELSMAN,, District Judge.
PER CURIAM. The petitioner, Mamadou Sy, appeals
from the final order of removal issued against him by the
"Hon. William O. Bertelsman, Senior United States, District Judge
for the Eastern District of Kentucky, sitting by designation.
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immigration court. He was initially granted asylum by an
immigration judge in December 1999. Shortly thereafter, the
Immigration and Nationality Service (INS) (today
reconstituted as the U.S. Immigration and Customs
Enforcement agency) moved to terminate the grant of asylum
and reopen removal proceedings against Sy. The basis for the
motion was a report from the INS’s forensic document
laboratory that refuted the validity of documents submitted by
Sy to establish his Mauritanian nationality. The immigration
judge granted the motion, terminated the previous grant of
asylum, reopened the proceedings against Sy, and found him
ineligible for asylum. The ruling of the immigration judge
was affirmed by the Board of Immigration Appeals (BIA).
Sy raises two issues on petition for review of the
immigration judge’s determination. First, he argues the INS
did not prove by a preponderance of the evidence that he had
actual knowledge of the non-authenticity of the documents.
Second, Sy argues that the BIA violated his due process rights
by affirming his case without the proper record before it. We
conclude that the record supports the immigration judge’s
decision and, therefore, decline to overturn the ruling below.
FACTUAL AND PROCEDURAL BACKGROUND
When Sy initially came before the immigration court in
response to a notice to appear, he conceded his removability
and indicated that he would apply for asylum. At the ensuing
hearing on the merits of his application, Sy testified that he
was born in Teckan, Mauritania. He related details about his
education and testified that he was a supporter of Ould
Daddah, a reform politician, as well as the Force Liberation
African and Mauritania (FLAM), for which he had performed
some editorial work. Sy reported that he had been arrested
three times. The first was allegedly in October 1998, when he
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was detained after he organized a protest march against
preferential treatment for Beydane students (described as
“white moors”) at his high school. During this imprisonment,
he said, he was questioned and tortured. He further testified
that in March 1995, he was stopped by police while driving
from Teckan to Nouadhibou and arrested after the officers
found a FLAM newspaper in his car. According to Sy, his
identification card was confiscated, and he was imprisoned for
three months, during which time he was beaten. Sy also
testified that in December 1997, he was detained following his
participation in a demonstration in favor of Ould Daddah and
free elections. Sy reportedly escaped from custody in April
1998 and fled the country shortly thereafter.
At the hearing, Sy entered two exhibits: a French original
and English translation of a Mauritanian nationality certificate
(Exhibit 6) and a French original and English translation of a
Mauritanian birth certificate excerpt (Exhibit 7). When
questioned about the source of these documents, Sy told the
immigration judge that after his initial appearance, he had
contacted his sister, who was living in Nouackhott,
Mauritania, and asked her to retrieve the documents from his
father’s house in Teckan. He said that he did not ask his
parents to send the documents because his parents are illiterate
and would not be able to identify them properly. The
immigration judge admitted these exhibits but postponed
cross-examination of Sy in order to give the INS time to
submit them for forensic examination.
When the hearing resumed, however, the results from the
forensic laboratory were not yet available. Nevertheless, the
INS attorney proceeded with cross-examination of Sy,
pointing out some inconsistencies between his application for
asylum and his testimony at the previous hearing. Although
some of these inconsistencies could be characterized as minor
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discrepancies and errors in translation, the questioning did
expose Sy’s lack of familiarity with the geography of
Mauritania in general and of Nouadhibou in particular.
As the record reflects, Nouadhibou is the northwestern-
most part of Mauritania. It is located on a peninsula,
surrounded on the east, west, and south by water. Half the
territory of this peninsula belongs to Western Sahara (under
the control of Morocco); the Mauritanian territory comprises
the eastern portion of the peninsula. When questioned,
however, Sy stated that Nouadhibou is bordered by the
Atlantic Ocean on the west. Sy also stated that it was possible
to drive directly south from Nouadhibou and reach
Nouakchott. (Nouakchott is generally south of Nouadhibou,
but Sy did not address the fact that one would first need to go
north to get off the peninsula and onto the mainland somehow,
before driving in the direction of Nouakchott.) Sy also said
that Nouadhibou was bordered on the east by hills, rather than
by water.
In fact, the immigration judge noted that Sy gave some
answers On cross-examination suggesting that he had never
been to Nouadhibou, despite his claim that he had gone to
high school there and had been arrested in that city. The judge
pressed Sy, asking him to describe what would happen if he
started off in downtown Nouadhibou and began walking east,
toward the direction in which he routinely prayed. He
prompted Sy about whether he would encounter “some kind
of natural feature,” and Sy answered only, “The airport.”
Moreover, as pointed out by the INS, when asked to describe
what one would encounter when walking due west from
downtown Nouadhibou, Sy made no mention of the notorious
minefields that lay to the west of Nouadhibou, in Western
Sahara.
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However, Sy did exhibit some knowledge of Mauritania:
he was able to name the different regions of the country, the
major cities, and their geographic relation to one another, as
well as some of the countries that border Mauritania and the
name of Mauritania’s first president. Based on this testimony,
and without the benefit of forensic analysis of Sy’s exhibits,
the immigration judge granted Sy’s asylum claim. He noted
that Sy’s testimony was in accord with the State Department’s
reports on Mauritania, which indicated that the government
did not tolerate political opposition and had arrested
supporters of Ahmed Ould Daddah and, furthermore, that the
government was hostile toward Afro-Mauritanians. The judge
described Sy’s knowledge of Mauritanian geography as a
“mixed bag,” but explained:
In this case, the Court...does not wish to deny asylum
to a deserving applicant simply because of a poor
sense of direction or an ignorance of that country from
which the respondent hails. The Court itself might be
able to describe east from west but there are other
people who may not. More importantly, the Court
notes that respondent was able to describe in a general
way the geography and relationship of cities in his
country and so the Court finds that even if he lacks a
poor working knowledge of Nouadhibou, he has at
least convinced the Court that he is Mauritanian....
Crediting Sy’s testimony, the immigration judge also found
that he had demonstrated a well-founded fear of persecution.
However, the judge concluded that Sy had failed to
demonstrate that it was more likely than not that he would be
persecuted if returned to Mauritania. Thus, the immigration
judge’s order granted Sy’s application for asylum but denied
his application for withholding of removal and denied relief
under the U.N. Convention Against Torture.
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When the hearing was reconvened, the immigration judge
heard testimony from Larry Ziegler, Senior Forensic
Document Examiner with the INS. Ziegler had compared the
documents submitted by Sy at the earlier hearing with known
exemplars of such Mauritanian documents by using handheld
magnification, a stereo microscope, and infrared light. He
found that Exhibit 6, the Mauritanian certificate de nationale,
was produced by a photocopier, rather than an offset printer,
as was the known document, which - unlike the exhibit - was
printed in French and English on one side and Arabic on the
other. No known documents from Mauritania possessed by
the laboratory were created on a photocopy machine, and
many specifically advised that a photocopy should not be
accepted. Regarding Exhibit 7, the birth certificate extract,
Ziegler noted:
[I]t’s a short form and it’s all type written and again
most commercial documents are, the commercial
documents that I have seen coming out of Mauritania,
are print[ed] either by a letter press or offset process
and also...the seal on the upper left hand corner is...
very, very light, it’s almost illegible and many, many
times. ..intelligence sources say that the reason is that
the seal is so illegible is because...[it] is a fraudulent
seal and gives the appearance of being lightly, lightly
stamped, so there were things like that that made me
also suspicious but the main thing is that they just
don’t match what we have on file.
In addition, both documents were marked with a brown stain
that had not penetrated into the document fibers, consistent
with an attempt to artificially age a document.
Sy presented no expert testimony in rebuttal. Moreover,
he gave testimony that conflicted with his earlier explanation
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of how he came to possess Exhibits 6 and 7. He initially told
the judge that his sister retrieved the documents from their
parents’ house in Teckan, but at this hearing he stated that she
had obtained them from the civil center in Drakise. He also
presented two additional exhibits: a second certificate of
nationality (Exhibit 11) and a birth certificate (Exhibit 12).
Both differed significantly from the first set of documents that
Sy submitted.
The immigration judge issued an oral decision at the
conclusion of the hearing, recounting the basis for Ziegler’s
professional opinion that both documents were fraudulent and
noting that Sy had produced no expert testimony to contradict
this conclusion. Furthermore, the judge found it “significant”
that Sy had produced “no attestation or declaration or affidavit
from his sister explaining how she obtained these documents,”
an omission that he found especially telling, because Sy
submitted another letter from his sister, unrelated to the
documents, that established that Sy had an open channel of
communication with her that he had failed to utilize. The
immigration judge also pointed to the many inconsistencies in
Sy’s testimony and to the fact that Sy was unable to explain
the substance of the documents:
Respondent was unable to answer questions put to him
by his own attorney and by the Court as to the
significance of a 1988 date on Exhibit 6. Respondent
testified that a birth declaration is normally obtained
shortly after birth in Mauritania, one’s parents going
to the city hall to attest to the birth of the child. And
respondent testified, that he was born in 1971, not in
1988. Further, there is no notation on Exhibit 6 that a
copy was made of a 1988 document in 1998 or 1999,
when his sister supposedly went to get this document
for him. Respondent was unable to convincingly
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explain that when the Court asked him what this 1988
date meant.
The immigration judge also gave no credence to the additional
documents submitted by Sy, given that they were similarly
unverified and completely inconsistent with the previously
submitted Exhibits 6 and 7. The judge noted on the record,
“[Ojne is confronted with documents that look completely
different and which actually contain different information with
different dates, different type faces, and other dissimilarities
obvious even to the Court’s untrained and naked eye.”
In light of the new evidence, the immigration judge
reversed his previous decision, noting that the grant of asylum
had been given despite “probing cross-examination by Service
counsel and the introduction of documents to suggest that
respondent may not have been in Nouadhibou at all in that he
did not understand the basic geography of that city.”
However, in light of the intervening testimony of Ziegler
regarding the fraudulence of Sy’s submitted documents, and
given Sy’s “vacillating, weak, and otherwise unclear”
explanations, the judge concluded that “(t]here is no reason to
give respondent the benefit of the doubt today.” Moreover,
the court noted direct parallels between Sy’s case and Jn re O-
D-, 21 I&N Dec. 1079 (BIA 1998), in which a claim of
Mauritanian nationality was denied based on the proffer of
counterfeit documents. As a result, the Immigration judge
rescinded the original grant of asylum, denied the renewed
application for asylum, and ordered that Sy be removed to
Mauritania. After some initial confusion about the inclusion
of the hearing transcript in the record on appeal, the BIA
ultimately denied Sy’s appeal and rejected his claim that he
had received ineffective assistance of counsel. Sy now seeks
review of the final order of removal.
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DISCUSSION
The petitioner frames the issue on review as follows:
“Whether the determination of the immigration court and the
BIA that Petitioner fraudulently obtained asylum through the
use of a counterfeit document was supported by substantial
evidence when there was no evidence that Petitioner knew that
the counterfeit document was not genuine.” It is conceivable
that if this were an accurate description of the dispositive
issue in this case, the question could be answered in the
petitioner’s favor under Kourski v. Ashcroft, 355 F.3d 1038
(7" Cir. 2004), the opinion of the Seventh Circuit that he
asserts should control the outcome here. This characterization
of the question is, however, not accurate.
In the first place, the petitioner suomitted not one, but at
least two, counterfeit documents -- and possibly several more
that were handed in by counsel too late to be examined, even
though a postmark on the envelope indicated that they had
been in petitioner’s possession for some period of time prior
to the hearing. Moreover, as the petitioner concedes in his
brief on appeal, the standard is not whether he actually knew
that the documents were fraudulent, but whether -- under the
circumstances of this case -- he knew or should have known
that they were counterfeit.
This standard better comports with the Seventh Circuit’s
observation in Kourski that “the immigration judge [would
have to] find that Kourski knew or suspected that the birth
certificate [at issue] was a forgery” in order to deny asylum
on the,basis of fraud. Jd. at 1039 (emphasis added). But the
forged birth certificate in Kourski was the only counterfeit
document that was submitted, and it was described by the
court as “a subtle forgery.” /d. at 1040. Moreover, in
testifying that the paper showing his “nationality” as Jewish
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had been sent from Russia by his mother, Kourski offered a
plausible explanation of how he could have come into
possession of the forged certificate in an apparently innocent
manner.
Those simply are not the circumstances here. The
inference that Sy knew of the inauthenticity of these
documents derives not only from their obviously fake
appearance, but also from Sy’s inability to offer an internally
consistent explanation of how he came to possess them.
Worse, when confronted with the forensic report, Sy
presented a second set of nationality documents, which bore
little relation to the first set. This bizarre and unexplained re-
submission reads as an evidentiary mea culpa of sorts. At the
very least, it indicates an unspoken acknowledgment by the
petitioner that the first set of documents were inadequate, if
not completely unreliable. Furthermore, Sy’s lack of
knowledge of the critical geography of Mauritania, his murky
explanation of how he obtained both sets of documents, the
forensic report calling into question the authenticity of the
documents, and the lack of corroboration for, and the
numerous inconsistencies in his testimony, provided ample
support for an adverse credibility finding by the immigration
judge.
Our conclusion in this regard is fully supported by circuit
precedent. We held in Selami v. Gonzales, for example, that
“the submission of a fraudulent document in support of a key
element of an asylum claim is sufficient to support an adverse
credibility determination” that would, in turn, support the
denial of relief. 423 F.3d 621, 625 (6" Cir. 2005). We noted
in Selami that the same principle had been upheld in other
decisions, citing Yongo v. INS, 355 F.3d 27, 33 (1% Cir.
2004), and Akinmade v. INS, 196 F.3d 951, 956 (9" Cir.
1999), and quoting from the BIA’s opinion in /n re O-D-, 21
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I&N Dec. 1079 (BIA 1998). In the latter case, involving, as
here, an asylum applicant who claimed to be a native and
citizen of Mauritania and who proffered counterfeit identity
papers, the BIA observed:
[I]n. the context of an asylum adjudication, there may
be instances in which a respondent voluntarily and
intentionally submits a document into evidence,
intending to establish his eligibility for asylum, that is
later shown to be counterfeit. The adjudicator may
consider whether that document points to a
respondent’s lack of credibility regarding the asylum
claim. Ordinarily, it is reasonable to infer that a
respondent with a legitimate claim does not usually
find it necessary to invent or fabricate documents in
order to establish asylum eligibility....
We find that this respondent’s presentation of at least
one counterfeit document, and probably two,
submitted to prove a central element of the claim in an
asylum adjudication, indicates his lack of credibility.
We also find that the presentation of such questionable
documents, in the absence of an explanation regarding
such presentation, creates serious doubts regarding the
respondent’s overall credibility . . . and diminishes the
reliability of his other evidence.
Id. at 1083.
We conclude that there is substantial evidence in the
record to support the immigration court’s decision that the
petitioner was not entitled to a finding of credibility, either as
to his testimony or to the documentary evidence that he
proffered. It follows that the court’s order of removal was not
entered in error.
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Nor do we find any merit to the petitioner’s allegation that
the BIA’s review of the immigration court’s decision was
inadequate in any respect. We therefore DENY review of the
BIA’s order affirming the decision of the immigration court.
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APPENDIX C
U.S. Department of Justice
Executive Office for Immigration Review
Falls Church Virginia 22041
Decision of the Board of Immigration Appeals
File: A78 898 266-Memphis Date: AUG 17 2004
In re: MAMADOU SY
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: E. Dennis Muchnicki,
Esquire
ON BEHALF OF DHS: Scott D. Gordon
Assistant Chief Counsel
CHARGE:
Notice: Sec. 212(a)(6)(A)(D, I&N Act [8 U.S.C.
§ 1182(a)(6)(A)(D] Present without being
admitted or paroled
APPLICATION: Asylum; withholding of removal; relief
under the Convention Against Torture
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We adopt and affirm the August 24, 2000, decision of the
Immigration Judge granting the Department of Homeland
Security’s (the “DHS,” formerly the Immigration and
Naturalization Service) motion to reopen proceedings,
rescinding a grant of asylum, and denying the respondent’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT). See Matter of
Burbano, 20 1&N Dec. 872, 874 (BIA 1994) (noting that
adoption or affirmance of a decision of an Immigration Judge,
in whole or in part, is “simply a statement that the Board’s
conclusions upon review of the record coincide with those
which the Immigration Judge articulated in his or ‘her
decision”). The record of proceedings reflects that the
respondent submitted fraudulent documents of his nationality
and identity. We agree with the Immigration Judge’s
conclusion that submission of such fraudulent documentation
undercuts the respondents’ claim, and it indicates an overall
lack of credibility regarding the entire claim. See Matter of O-
D-, 21 I&N Dec. 1079 (BIA 1998). As the record fully
supports the result of the Immigration Judge’s decision, we
affirm the conclusion that the respondent failed to demonstrate
eligibility for asylum, withholding of removal, or protection
under the CAT.
The respondent has raised on appeal a claim of ineffective
assistance of counsel, resulting in his failure to submit
evidence rebutting the DHS’ allegation of fraud. However,
the respondent has failed to meet the requirements necessary
to establish a claim for ineffective assistance of counsel. See
Hamid v. Ashcroft, 336 F.3d 465 (6" Cir. 2003); see also
Matter of Lozada, 19 I&N Dec. 637 (BIA 1988).
Accordingly, the following order shall be entered.
ORDER: The respondent’s appeal is dismissed.
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/s/Neil S. Miller
FOR THE BOARD
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APPENDIX D
U.S. Department of Justice
Executive Office for Immigration Review
Falls Church Virginia 22041
Decision of the Board of Immigration Appeals
File: A78 898 266-Memphis Date: APR 13 2004
In re: MAMADOU SY
IN REMOVAL PROCEEDINGS
MOTION
ON BEHALF OF RESPONDENT: E. Dennis Muchnicki,
Esquire
INTERIM ORDER
This matter was previously before the Board of
Immigration Appeals on October 14, 2003, when we granted
the respondent’s request to reissue our October |, 2002,
decision affirming, without opinion, the Immigration Judge’s
decision in this case. Subsequently, it has come to the Board’s
attention that the record of proceedings contained a transcript
which did not relate to the respondent’s proceedings. The
matter shall be reopened pursuant to the Board’s authority
under 8 C.F.R. § 1003.2(a) (2004), and a new decision on
the merits of the respondent’s appeal will be forthcoming.
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INTERIM ORDER: The Board’s order, reissued on
October 14, 2003, is vacated.
FURTHER INTERIM ORDER: The Board’s order dated
October 1, 2002, affirming the Immigration Judge’s decision
without opinion is hereby vacated.
FURTHER INTERIM ORDER: The appeal is reinstated.
/s/ Lori L. Scialabba
FOR THE BOARD
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APPENDIX E
U.S. Department of Justice
Executive Office for Immigration Review
Falls Church Virginia 22041
Decision of the Board of Immigration Appeals
File: A78 898 266-Memphis Date: OCT 14 2003
In re: MAMADOU SY
IN REMOVAL PROCEEDINGS
MOTION
ON BEHALF OF RESPONDENT: E. Dennis Muchnicki,
Esquire
REISSUED DECISION
On October 1,2002, the Board affirmed, without opinion,
the Immigration Judge’s decision in this case. The respondent
has filed a motion to reissue the decision.' DHS has not
' Counsel has provided a copy of a letter wherein he asked the
Board to update his address. However, Mr. Muchnicki did not file
a Notice of Appearance (Form EOIR-27) in each of his cases. We
wish to point out that the Board does not maintain an attorney
database wherein a sweeping change can be made for all pending
cases. If Mr. Muchnicki wishes to change his business mailing
address with the Board, he must submit a change of address in each
isis
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responded to the instant motion. Accordingly, the decision
will be reissued and treated as if entered on today’s date.
ORDER: The respondent’s motion to reissue is granted.
FURTHER ORDER: The Board’s order dated October 1,
2002, attached hereto, is hereby reissued.
FURTHER ORDER: The Board’s order shall be treated
as if entered as of today’s date.
/s/_ David B. Holmes
FOR THE BOARD
pending ease. The changes of address should be filed on a Form
EOIR-27 and the attorney should check the “New Address” box in
the address block on the form. Guidance on practicing before the
Board may be obtained in the Practice Manual and Questions and
Answers, available on-line at www.usdoj.gov/eoir.
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APPENDIX F
U.S. Department of Justice
Executive Office for Immigration Review
Falls Church Virginia 22041
Decision of the Board of Immigration Appeals
File: A78& 898 266-Memphis Date: OCT 01 2002
In re: MAMADOU SY
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Muchnicki, E. Dennis,
Esquire
ORDER:
PER CURIAM. The Board affirms, without opinion, the
results of the decision below.' The decision below is,
therefore, the final agency determination. See 8 C.F.R.
§ 3.1(a)(7).
/s/ Paul W. Schmidt
FOR THE BOARD
' The respondent’s request for three-member review is denied.
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APPENDIX G
IMMIGRATION COURT
167 N. MAIN STREET, ROOM 460
MEMPHIS, TN 38103
Case No.A76-898-266
[August 24, 2000]
MAMADOU SY, )
Petitioner, )
)
Vv. )
)
ALBERTO GONZALES, _)
ATTORNEY GENERAL, |)
Respondent. )
)
IN REMOVAL PROCEEDINGS
ORDER OF THE IMMIGRATION JUDGE
This is a summary of the oral decision entered on Aug.
24, 2000. This memorandum is solely for the convenience of
the parties. If the proceedings should be appealed or
reopened, the oral decision will become the official opinion in
the case.
[x] The respondent was ordered removed from the United
States to Mauritania or in the alternative to
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[x] Respondent’s application for asylum was ( ) granted
(x) denied ( ) withdrawn.
[x] Respondent’s application for withholding of removal
was ( ) granted (x) denied ( ) withdrawn.
[x ] Other: CAT relief denied. Order of 12/15/99
GRANTING ASYLUM IS RESCINDED.
Date: Aug 24, 2000
Appeal: Waived/(Reserved) Appeal Due By:
Respondent Sept. 25, 2000
/s/Charles E, Pazar
CHARLES E. PAZAR
Immigration Judge
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APPENDIX H
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
Memphis, Tennessee
File No. A 76 898 266
[August 24, 2000]
MAMADOU SY,
Petitioner,
V.
ALBERTO GONZALES,
ATTORNEY GENERAL,
Respondent.
i i i i
IN REMOVAL PROCEEDINGS
CHARGE:
APPLICATIONS:
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ON BEHALF OF RESPONDENT:
‘Nimmo Bhagat, Esquire
1585 Massey Pointe Lane
Memphis, TN 38120
ON BEHALF OF SERVICE:
Leslie Turner
Assistant District Counsel
Baltimore District Office’
ORAL DECISION OF THE IMMIGRATION JUDGE
The matter comes before the Court on a motion to reopen
filed by the Immigration and Naturalization Service. At the
close of the hearing held on December 15, 1999, the Court
granted respondent’s application for asylum and denied his
application for withholding of removal and also for
withholding of removal under the Torture Convention. Then
the next day, the Service submitted what has now been
marked and admitted as Exhibit 12, this is a letter from Larry
F. Ziegler, Senior Forensic Document Examiner, from the
INS’s forensic document laboratory in McLean, Virginia. The
Service had previously sent to the FDL for forensic review
documents which were admitted at the earlier hearing as
Exhibits 6 and 7.
Exhibit 6 is a nationality certificate submitted by
respondent in furtherance of his case. Exhibit 7 is a birth
' Ms. Turner represents the Service in this reopened matter. Ms.
Turner is visiting Memphis from Baltimore. Service counsel during
the previous hearing was Harris Lee Leatherwood, an Assistant
District Counsel, Memphis Suboffice.
27a
certificate excerpt also submitted by the respondent. They
were sent by INS trial attorneys in Memphis to the forensic
document laboratory for review and the letter found at Exhibit
12 sets forth the conclusions of Mr. Ziegler following that
review.
Based upon the representations made by the Service in its
motion to reopen, the Court reopened this case. The Court
gave both sides an opportunity at a pretrial conference held in
February 2000 to set forth any evidence that either side
wished to present to the Court. The Service stated that they
would be calling Mr. Ziegler and the respondent indicated
that he was not going to engage the services of a forensic
document examiner but that respondent himself would take the
stand at his hearing.
A hearing was held on August 24, 2000. Mr. Ziegler,
whom respondent stipulates is an expert forensic document
examiner, testified that he examined Exhibits 6 and 7 against
known samples maintained by the forensic document
laboratory. These samples initially included samples
submitted by the Mauritanian government but have
subsequently grown to include samples that were sent by the
INS following field evaluation in Mauritania. Thus, a number
of samples are on file with the Immigration and Naturalization
Service’s forensic document laboratory, both of Mauritanian
nationality certificates and Mauritanian birth extracts.
Mr. Ziegler testified that he divided the documents in
question into two groups, questioned documents and known
documents. He subjected the questioned documents to what he
called basic instrumentation, including stereo microscope
visual examination, hand held magnification, and video
spectra comparison. Based upon his analysis, Mr. Ziegler
reached a number of conclusions.
28a
First, as to the certificate of nationality found as Exhibit
6, Mr. Ziegler concluded that this is a fraudulent document.
He concluded it is fraudulent for a number of reasons. Upon
his conclusion, Mr. Ziegler found that this does not comport,
that this is it does not look like any of the known Mauritanian
certificates of nationality on file with the forensic document
laboratory. Further, this document was produced on a photo
copy machine whereas all of the valid, and that is all of the
known nationality certificates, for Mauritania are produced on
a more, for lack of a better term, primitive or basic form of
reproduction known as off-set printing. This document, and
Exhibit 7, were both marked with a brown stain. Mr. Ziegler
concluded that this brown stain is sometimes used to give the
impression of age.
On cross-examination, Mr. Ziegler testified that it was
possible that there might be some national certificates of
identity, that is certificates of nationality in Mauritania or
birth extracts that might not be completely included in the
Service’s files. However, no birth extract or certificate of
nationality which is in the Service’s files as an exemplar is in
photo copy form. Mr. Ziegler stated in his professional
opinion that this was a bad photo copying form in that there
was a lot of, what he called photo copy trash, that could be
found if one examined the document microscopically. That is,
there might be one piece of paper which has the letterhead or
the heading of a Mauritanian government agency and then
information would be simply filled in and photo copied again
and again and again.
Mr. Ziegler also noted that there are brown stains on both
documents. His examination showed that the stains had not
been absorbed into the fibers of the paper as one would expect
in a document that was naturally as opposed to artificially
aged or perhaps the Court should say in which an attempt was
29a
made to artificially age the document. Mr. Ziegler has had
experience in which documents are dipped in tea, or sprayed
with some material such as hair spray and despite all of these
efforts, paper that is fairly new will not show in its fibers such
a Stain whereas old paper that is actually stained over age and
time will show such stains.
Overall, it was Mr. Ziegler’s professional opinion that
both documents are fraudulent. Respondent produced no
expert testimony to contradict Mr. Ziegler’s conclusion.
Respondent testified that the documents in question were
obtained from his sister. Significantly, there is no attestation
or declaration or affidavit from his sister explaining how she
obtained the documents.
Initially, respondent testified, he telephoned his sister and
told her that he needed documents to prove that he was from
Mauritania. This is after respondent had come apparently to
the Master Calendar and/or engaged counsel who wisely
advised her client that he needed to prove his nationality. So,
respondent testified, he contacted his sister by telephone and
told her to obtain documents providing his nationality.
Respondent variously testified that the documents that
were submitted as Exhibits 6 and 7 were really documents that
were kept by his father in his father’s library at home in
Mauritania. This is what he said on cross-examination,
respondent having said on direct examination that the
documents in the home were not available and so his sister
went to the city hall to obtain these documents.
Respondent explained that one obtained a nationality
certificate in Mauritania by giving one’s birth declaration
number and bringing in a certificate of residence.
30a
Respondent’s sister did this and came forward with the
documents found at Exhibits 6 and 7.
Respondent was unable to answer to questions put to him
by his own attorney and by the Court as to the significance of
a 1988 date on Exhibit 6. Respondent testified that a birth
declaration is normally obtained shortly after birth in
Mauritania, one’s parents going to the city hall to attest to the
birth of the child. And respondent testified, that he was born
in 1971, not in 1988. Further, there is no notation on Exhibit
6 that a copy was made of a 1988 document in 1998 or 1999,
when his sister supposedly went to get this document for him.
Respondent was unable to convincingly explain that when
the Court asked him what this 1988 date meant. When his
counsel asked him what could fairly be described as a leading
question as to how one obtains a nationality certificate in
Mauritania and more specifically did you get a nationality
certificate in June of 1988, respondent testified that yes indeed
he did.
Respondent has also submitted in this Court Exhibit 11,
which are a series of documents which he obtained after the
close of the hearing in December of 1999. Again, the Court
is not provided a declaration or attestation from his sister
about how she obtained these documents, respondent
testifying that his sister obtained these documents for him.
These documents include 11-2, another certificate of
nationality; 11-4, another extract of registration of an act of
birth; and 11-13, declaration de naissance, or a birth
declaration. Other documents found in Exhibit 11 include
attestations or certificates showing that these are actual
documents that were in the possession of the Mauritanian
authorities. The Court caused the originals of these documents
to be marked as Exhibits 13 through 20. The Court notes that
3la
there was a post mark from a post office in Memphis on
Exhibit 13, the envelope which contains the material, and yet
this material was not submitted to the Service or to the Court
until July of 2000. Thus, neither the Court nor the Service has
the benefit of a forensic document laboratory evaluation. The
court is well aware that the FDL is backed up and that there
are inordinate delays in getting these reports and so Service
counsel indicated that the documents had not even been sent
off although they were only received in July.
Examining the nationality certificate found at 11-2, the
Original of which is found at Exhibit-15, the respondent was
asked on cross-examination why would this document have a
date of April 22, 1989 when respondent testified that he had
obtained his declaration of nationality on June 18, 1988.
Respondent testified that he had no good reason, he could not
explain that discrepancy.
Similarly, respondent has no evidence to offer that the
stamps that are shown on documents such as 11-2 in Exhibit
15, Exhibit 18, Exhibit 18, and the others are actually the
stamp of the mayor or other civil official responsible for
maintaining these documents in Mauritania. Respondent was
reminded several times that an expert had concluded that
earlier documents were fraudulent yet respondent offered no
meaningful testimony or evidence to show that there
documents were in fact not fraudulent.
The originals of Exhibits 6 and 7 remain in the custody of
the Service. Mr. Ziegler had indicated that it was his desire to
have them in his possession as he testified about them. The
originals had been submitted in support of respondent’s
application for asylum and were part of the record of
proceedings and by agreement of the parties, they were sent
to the INS, that is to Mr. Ziegler. The Court hereby orders,
32a
so that the record in this case will be complete, that the
Service return those documents to the Memphis Immigration
Court no later than September 1, 2000.
Findings of the Court
Finding 1: Respondent is not credible.
This case is squarely controlled by the decision of the
Board of Immigration Appeals in Matter of O-D-, 21 I&N
Dec. 1079 (BIA 1998). The parallels between that case and
the instant case are striking.
In O-D- an individual purporting to be a native and citizen
of Mauritania submitted documents including a Mauritanian
identification card which a forensic documents laboratory
examiner testified was a known counterfeit. He also submitted
a birth certificate which was “probably counterfeit.” The
Immigration Judge in Matter of O-D- denied the asylum
application, finding that respondent has not offered truthful
testimony, that is his testimony was not credible because of
the introduction of these fraudulent documents.
The issue before the Board in Matter of O-D- was stated
very well at page 1081, “We determine only the appropriate
weight to assign to a fraudulent document entered into
evidence during the course of an asylum hearing, occurring in
the United States, distant both in place and time from the
alleged persecution.” The Board Went on to state that the
Immigration Judge in her decision that the respondent’s
submission into evidence of at least one counterfeit document
generally discredited his testimony regarding asylum
eligibility and specifically discredited his claim of identity,
and the Board agreed.
33a
At page 1083 of that decision, the Board sets out criteria
which the adjudicator, that is the Immigration Judge may
consider. “Ordinarily, it is reasonable to infer that a
respondent with a legitimate claim does not usually find it
necessary to invent or fabricate documents in order to
establish asylum eligibility. On the other hand, there may be
reasons, fully consistent with the claim of asylum, that will
cause a person to possess false documents, such as the
creation and use of a false document to escape persecution by
facilitating travel.” In the very next paragraph, the Board
went on to note that, “We find that this respondent’s
presentation of at least one counterfeit document and probably
two submitted to prove a central element of the claim in an
asylum adjudication indicates his lack of credibility. We also
find that the presentation of such questionable documents, in
the absence of an explanation regarding such presentation,
create serious doubts regarding the respondent’s overall
credibility.” And the Board also noted that the presentation of
fraudulent documents “is a critical factor in the analysis of the
respondent’s claim. Such fraud tarnishes the respondent’s
veracity and diminishes the reliability of his other evidence.”
id at 1083.
Even though Matter of O-D- was in a different procedural
stance than the case presented today, this case coming upon a
motion to reopen filed by the Service, the Court finds the
precepts and guidance of O-D- to be directly relevant. The
Court had granted the respondent asylum previously based
upon the Court’s conclusion that respondent had presented
credible testimony concerning his participation in a
demonstration in Nouadhibou, Mauritania. This conclusion
was despite probing cross-examination by Service counsel and
the introduction of documents to suggest that respondent may
not have been in Nouadhibou at all in that he did not
understand the basic geography of that city. At that time, the
34a
Court believed respondent and discounted this other evidence,
the Court believing that someone who was weak in geography
should not necessarily be denied asylum. Thus, in that case,
previously, the Court gave respondent the benefit of the
doubt.
There is no reason to give respondent the benefit of the
doubt today. He has presented document found at Exhibits 6
and 7 that the forensic document laboratory examiner found
to be fraudulent. His explanation is vacillating, weak, and
otherwise unclear. Respondent testified variously that his
sister obtained Exhibits 6 and 7 from the city hall or that they
were really in his father’s file all along.
It is telling to the Court that respondent does not offer an
affidavit or other evidence from his sister about what she did
to obtain these documents. It is not as if his sister cannot read
and write French, the language in which respondent testified,
in that a letter from respondent’s sister is found in the record
of proceedings. This letter is a generally self serving
document but it shows that respondent could get a letter from
his sister or a sworn document from his sister, an attestation,
if he wished.
The Court is then confronted with a whole raft of new
documents. The implicit purpose, the Court supposes, in
submitting Exhibit 11, is to say that even if the earlier
documents were fraudulent, these documents are not.
Respondent has certainly not demonstrated that the earlier
documents were not fraudulent by the submission of the
documents found at Exhibit 11 and the originals of which are
found at Exhibits 13 through 20. Thus, if one looks at Exhibit
11-2, the original of which is Exhibit 15, and compares it to
Exhibit 6, one is confronted with documents that look
completely different and which actually contain different
35a
information with different dates, different type faces, and
other dissimilarities obvious to even the Court’s untrained and
naked eye.
The Court granted asylum based largely on its willingness
to give respondent the benefit of the doubt and to credit his
testimony despite evidence that might have impeached the
respondent previously. The Court does not enter this order
with glee, recognizing that respondent believes himself to
have a well-founded fear of persecution in Mauritania, but
does so because the clear weight of the evidence is such that
the documents founds at Exhibits 6 and 7 are fraudulent and
respondent offers no valid explanation for how these
documents came into being or how they came to be in his
possession in the United States. Accordingly, the Court enters
the following order:
ORDER
The previous order granting respondent asylum is hereby
rescinded;
Respondent’s application for asylum is denied;
Respondent’s applications for withholding of removal and
for withholding under the Torture Convention are denied;
Respondent is ordered removed from the United States to
Mauritania.
/s/Charles E. Pazar
CHARLES E. PAZAR
United States Immigration Judge
36a
APPENDIX I
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
Memphis, Tennessee
File No.A 76 898 266
[December 15, 1999]
MAMADOU SY,
Petitioner,
Vv.
ALBERTO GONZALES,
ATTORNEY GENERAL,
Respondent.
ee ee ee
IN REMOVAL PROCEEDINGS
CHARGE: _ Section 212 (a) (6) (A) (D
APPLICATIONS: Asylum; withholding of removal;
withholding under the Convention
Against Torture.
37a
ON BEHALF OF RESPONDENT:
Nimmo Bhagat, Esquire
1585 Massey Pointe Lane
Memphis, TN 38120
ON BEHALF OF SERVICE:
Harris Lee Leatherwood
Assistant District Counsel
Memphis Sub-Office'
ORAL DECISION OF THE IMMIGRATION JUDGE
Respondent is an unmarried male, native and citizen of
Mauritania. Based upon the admissions made by counsel for
respondent at a Master Calendar previously held in this case,
the Court finds that respondent is subject to removal under
Section 212(a) (6) (A) (1) of the Immigration and Nationality
Act (Act), as amended, as an alien present in the United States
without being admitted or paroled, or who has arrived in the
United States at any time or place other than as designed by
the Attorney General.
Statement of the Law
An asylum applicant bears the evidentiary burden of proof
to establish his asylum claim. To establish eligibility for
asylum, an alien must establish past persecution or a well-
founded fear of future persecution on account of his race,
' During the portion of the hearing held on August 16, 1999. The
Service was represented by John F. Cook, II, Assistant District
Counsel, Memphis Suboffice.
38a
religion, nationality, membership in a particular social group,
or political opinion. See Section 101(a) (42) (A) of the Act;
INS v. Elias-Zacarias, 502 U.S. 478 (1992). An applicant for
asylum bears the burden of establishing that he meets the
“refugee” definition of Section 101(a) (42) (A) of the Act. An
applicant shall be found to be a refugee on the basis of past
persecution if he can establish that he has suffered persecution
in the past in his country on account of an enumerated
ground, and that he is unable or unwilling to return to or avail
himself of the protection of that country owing to such
persecution. See Matter of E-P-, 21 I&N Dec. 860 (BIA
1997). An applicant has established a well-founded fear if he
demonstrates that a reasonable person in his circumstances
would fear persecution. See Matter of Mogharrabi, 19 I&N
Dec. 439, 445 (BIA 1987). _*
To be eligible for withholding of removal, an alien must
demonstrate a clear probability of persecution in the country -
designated for removal on account of one of the five
enumerated grounds. JNS v. Stevic, 467 U.S. 407 (1984).
This means that the alien must establish that it is more likely
than not that he would be subject to persecution for one of the
grounds specified.
For asylum applications filed on or after April 1, 1997, an
applicant shall also be considered for eligibility for
withholding of removal under the United Nations Convention
Against Torture and Other Forms of Cruel, Inhuman, or
Degrading Treatment or Punishment (Torture Convention) if
the applicant requests such consideration. Through counsel,
respondent has requested such consideration in this case.
Relevant regulations at 8 C.F.R. Section 208.18 define
torture as any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person. This
39a
severe pain or suffering must t2 inflicted on the applicant or
a third person for one of four purposes, specifically (1) for
obtaining information or a confession; (2) for punishing for an
act committed or suspected of having committed; (3) for
intimidation or coercion; or (4) for any reason based on
discrimination of any kind. In addition, to constitute torture,
the act must be directed against a person in the offender’s
custody or physical control. Further, the pain or suffering
must be inflicted by or at the instigation of or with the consent
or acquiescence of a public official or other person acting in
an Official capacity. Acquiescence requires that the public
official have prior awareness of the activity and thereafter
breach his or her legal responsibility to intervene to prevent
such activity. Torture is an extreme form of cruel and
inhuman treatment and does not include pain or suffering
arising from lawful sanctions. Lawful sanctions do not include
sanctions which defeat the object and purpose of the Torture
Convention.
To constitute torture, mental pain or suffering must be
prolonged. It also must be caused by or resulting from
intentional or threatened infliction of severe physical pain or
suffering, threatened or actual administration or application of
mind altering substances or similar procedures, or threatened
eminent death. These causes or results can be directed
towards the applicant or another person.
The applicant for withholding of removal under the
Torture Convention bears the burden of proving that it is
more likely than not that he would be tortured if removed to
the proposed country of removal. 8 C.F.R. Section 208. 16(c)
(2). As with asylum, this burden can be established by
testimony without corroboration if the testimony is credible,
id, Matter of Y-B-, 21 1&N Dec. 1136 (BIA 1998). In
assessing whether the applicant has satisfied the burden of
J
40a
proof, the Court must consider all evidence relevant to the
possibility of future torture, including evidence of past torture
inflicted upon the applicant; evidence that the applicant could
relocate to a part of the country of removal where he is not
likely to be tortured; evidence of gross, flagrant, or mass
violations of human rights within the country of removal; or
other relevant information on conditions in the country of
removal.
Statement of the Case
Exhibit 1 consists of the Notice to Appear.
Exhibit 2 is the application for asylum, otherwise known
as a Form I-589 which the respondent filed with the
Immigration and Naturalization Service and which was
referred to this Court. In the 589, respondent seeks asylum in
the United States based on three incidents which he testified
about and which he claims took place in Mauritania. The first
in time is a demonstration that respondent organized and
participated in in a high school which he attended in 1989.
The second involved respondent’s arrest following an incident
in which materials relating to the FLAM organization were
found in an automobile in which the respondent was a
passenger in 1995. The third incident is a demonstration in
which respondent took part in the city of Nouadhibou,
Mauritania in 1998. In each instance, the respondent was held
for some months, mistreated by the police, and in the first two
instances released and in the third instance escaped. In 1989
and 1995 the respondent was given warnings by the police
that he was a trouble maker and that he was not to take part
in these activities again.
In evaluating this case, the Court will not look at the 1989
and 1995 incidents. It is well settled that an applicant for
4la
asylum who remains in a country for some years when he had
the opportunity to escape and yet allowed himself to be
subjected to the activities of a government that he believes is
hostile to his interests severely undercuts his claim for
asylum. Respondent remained for years in Mauritania by the
time when thousands of other Afro-Mauritanians were either
deported, see Exhibit 3, or left Mauritania voluntarily for
Senegal or Mali. So, if the only claims that respondent
pressed upon the Court were those from 1989 and 1995, the
analysis would end here. However, the Court also has before
it a claim basedon respondent’s participation in political
demonstration in Nouadhibou in 1998, his arrest following his
participation and his imprisonment and escape. Thus, the
Court will evaluate respondent’s application for asylum based
upon this incident.
Respondent testified that he was arrested -with
approximately 30 other persons following a demonstration in
support of the UFD-New Era political party in Nouadhibou
following the announcement of the results of the president poll
in Mauritania in December 1997. As will be shown below,
the UFD-New Era opposed the election of the man who has
ruled Mauritania for some years and who was reelected by a
land slide in 1997. Respondent testified both on direct
examination and on cross-examination that in a very loud
voice he basically said long live Daddah, that is, the leader of
the UFD party and down with Taya, that is, the president of
Mauritania. Respondent described in some detail being taken
into custody and being made to undergo physical
mistreatment. Respondent also testified that he was forced to
sign a paper in which he ‘vas told if he continued to
participate in such activities that he would be killed.
Nonetheless, respondent was not released but rather made
good his escape when a guard turned his back and started
talking with a woman. Respondent described thereby finding
42a
his way to the United States through Baltimore, Maryland
with the assistance of friends in Mauritania who helped
secrete him aboard a vessel which brought him to the United
States.
Exhibit 3 is the Profile of Asylum Claims and Country
Conditions for Mauritania. This document is prepared by the
United States Department of State and is admitted to satisfy
requirements of case law of the Board of Immigration Appeals
that background material be present in all decisions.
At page four of this document, the State Department
makes the following analysis of claims for asylum based on
political opinion. While opposition to political parties are
active in Mauritania and their views are publicly expressed,
a political party wishing to conduct a meeting or
demonstration must seek permission from a government
official. Thus, while these often are permitted, the State
Department would note that claims based on fear of
persecution for political opinion should be carefully examined
in order to determine if there is some specific, visibly
identifiable political action by the applicant that might put him
or her individually at risk.
Exhibit 4 is the Mauritania Country Report on Human
Rights Practices for 1998. This document updated to some
extent the Profile which bears the date of October 19, 1997.
This document confirms that the demonstrations following
the presidential elections led to the arrest of political
opponents of the regime. More recently, at page five, the
leader of the UFD-New Era movement, Ahmed Ould Daddah,
was arrested at the year’s end in 1998, and was still in
custody in Mauritania. Elsewhere on page five, the State
Department reports the breakup of demonstrations in
43a
Nouakchott and the arrest of certain human rights activists for
criticizing the government.
In regard to the arrest of those human rights activists, at
page four, the State Department notes that those activists were
held in situations enabling them to interact with other
prisoners and it was reported that there was no reliable
evidence that political prisoners or prisoners in general in
Mauritania during this period of time were being tortured.
Exhibit 5 consists of documents submitted by respondent
on his behalf. The Court notes that 5-3 and 5-4 are Amnesty
International annual reports for Mauritania for 1999 and
1998, respectively. 5-3 confirms the detention of Mr.
Daddah, the leader of the UFD party.
Exhibit 6 is a photostatic copy of a nationality certificate
and the English translation thereof and Exhibit 7 is the
photostatic copy of a birth certificate excerpt and the English
translation thereof, both of which were submitted by
respondent on his behalf to prove Mauritanian nationality. At
the request of the Service, both documents were sent to the
forensic document laboratory in August, however, Mr.
Leatherwood reports to the Court that there is no report from
the FDL concerning their legitimacy. The Court notes that
respondent was not questioned concerning these documents
and so the Court will treat them as what they appear to be
namely a birth certificate excerpt and nationality certificate
from Mauritania.
Exhibit 8 is a letter purportedly sent to the respondent
from his sister. The Court notes that this document is
unsigned and the Court also notes that there was at least one
idiomatic phrase that the French translator was unable to put
44a
into English. Thus, the Court accords very little weight to this
document.
Exhibit 9 is a photostatic copy of a portion of a Michelin
road map for West Africa including Mauritania. Now this
document and the document in Exhibit 10, West Africa, A
Lonely Planet Travel Survival Kit, were introduced by the
Service to impeach the respondent.
Respondent was extensively questioned about his
knowledge of geography and the history of Mauritania, and
more specifically his knowledge of the geography of
Nouadhibou. That is, he was extensively questioned about the
location of Nouadhibou, its physical attributes, and its
relationship with the rest of Mauritania.
The results of this questioning both by respondent’s own
counsel, the Service, and the Court were not as clear as either
party described them to be in closing argument. That is, the
Court notes that respondent said that he had clearly met his
burden and that he had answered as fully as he knew about the
geography of his country and the location of Nouadhibou. The
Service argued to the Court that the respondent was incredible
because documents found at Exhibits 9 and 10 impeached him
and that he could not have been from Nouadhibou because of
his lack of knowledge of the geography of the region as set
out more specifically in Exhibit 10.
The Court notes that respondent did not completely flunk
this quiz. That is, unlike many purported Mauritanians who
appear before the Court, he did not simply give up in defeat
when asked hard questions about his country, its location, and
other material relating to its geography. Thus, respondent was
able to recite the basic Beography of Mauritania, name most
of the regions of that country, identify the general direction of
45a
Nouakchott from Nouadhibou, and also describe what the
Court would say would be about a scale of 80%, that is a C,
the countries that border Mauritania. The Court notes that
respondent flunked at least to the extent that he did not know
that Algeria bordered Mauritania to the north. Thus, the
Court is confronted with a mixed bag of the respondent’s
background and knowledge when addressing his claim relating
to the 1997/1998 incident.
Findings of the Court
Finding 1: Respondent is credible in the key parts of his
claim. The crucial issue in this case is respondent’s credibility.
Broken down more specifically, has respondent demonstrated
that he really is from Mauritania, is he really from
Nouadhibou, and if he was from Nouadhibou have the events
that he described actually taken place and was he therefore
able to demonstrate a well-founded fear of persecution.
This is a close case for the Court. And the Court has
before it the evidence found at Exhibits 9 and 10, which
wou!d undercut respondent’s description of the situation in
Nouadhibou. Yet, the Court does note that respondent was
able to describe the general direction of Nouakchott from
Nouadhibou and that he was also able to describe in a general
C-grade way the geography of his country. Thus, the Court
finds that respondent was partially, if not more than,
rehabilitated in redirect examination by his counsel.
The Court is well aware of decision law of the Board of
Immigration Appeals including Matter of Y-B-, supra,
wherein the Board has held that the testimony of a respondent
can suffice to demonstrate a well-founded fear of persecution
if that is all the evidence that is available and that testimony
is credible. The Board goes on to note in Matter of Y-B- that
46a
the Court should be mindful not to confuse credibility issues
with issues relating to the benefit of the doubt.
In this case, the Court states for the record that it does not
wish to deny asylum to a deserving applicant simply because
of a poor sense of direction or an ignorance of that country
from which the respondent hails. The Court itself might be
able to describe east from west but there are other people who
may not. More importantly, the Court notes that respondent
was able to describe in a general way the geography and
relationship of cities in his country and so the Court finds that
even if he lacks a poor working knowledge of Nouadhibou, he
has at least convinced the Court that he is Mauritanian, and
while he may not have a very good orientation in lieu of
Nouadhibou during the period in question.
Finding 2: Respondent has demonstrated a well-founded
fear of persecution.
The Court finds that respondent’s fear is reasonable under
Matter of Mogharrabi, supra. \n that case, the Board stressed
that the well-foundedness of fear has two components, the
subjective and the objective component. That is, the
respondent must demonstrate not only that he himself has fear
of returning to Mauritania but that a reasonable person in his
circumstances would have that fear. The Court finds that
respondent has met his burden in this regard.
Evidence of record found at Exhibits 3 and 4 establish that
Mauritanian security forces do break up street demonstrations
and that there are incidents in which political activists opposed
to the government have been jailed, including Mr. Daddah
who is the leader of the party that respondent says he is
affiliated with. Respondent was an active and vocal opponent
of the government and was a loud participant, he testified, in
47a
this demonstration which came immediately after the results
of presidential elections were announced in Mauritania.
Putting aside his puffery about signing some paper in which
he would be killed, the Court noting that many respondents
have an unfortunate wish to inflate their claim by including
such puffery in their testimony, nonetheless, the Court finds
that respondent has demonstrated that as a UFD-New Era
activist who participated in a demonstration in Nouadhibou
and who closely identified himself with Mr. Daddah, he has
demonstrated a well-founded fear of persecution.
Finding 3: Respondent has not demonstrated that it is
more likely than not he would be persecuted in Mauritania.
While the Court finds that respondent has shown a well-
founded fear of persecution, the Court finds that he has not
shown that it is more likely than not that he would be
persecuted in Mauritania. This is a higher standard as Stevic,
supra, makes clear and respondent has not demonstrated that
it is more likely than not that he would be persecuted. And
evidence of record shows that the opposition political parties
in Mauritania continue to oppose the government and do take
part and that there are demonstrations and so while he has a
well-founded fear of persecution he has not demonstrated that
it is more likely than not that he would be persecuted.
Finding 4: Respondent has not demonstrated eligibility for
relief under the Torture Convention.
For much the same reason as respondent has not shown
that it is more likely than not that he would be persecuted in
Mauritania, he has also failed to demonstrate this it is more
likely than not that he would be tortured in Mauritania if
returned. The Court notes the testimony of the human rights
activists noted at Exhibit 4, page 4, in which they said that
48a
while they were jailed in Nouakchott in early 1998, they
encountered no one who had been tortured and that there is no
credible report of torture in the Mauritanian penal system at
this time. This is not to say that Mauritania is held out as
some kind.of Edan but simply that respondent has not
demonstrated that it is more likely than not that he would be
tortured if returned.
In light of the foregoing, the Court enters the following
orders:
ORDER
Respondent’s application for asylum is granted;
Respondent’s applications for withholding of removal and
withholding of removal under the Torture Convention are
denied.
/s/Charles E. Pazar
CHARLES E. PAZAR
Immigration Judge
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APPENDIX J
TITLE 8. ALIENS AND NATIONALITY
CHAPTER 12. IMMIGRATION AND NATIONALITY
IMMIGRATION SELECTION SYSTEM
Review expert commentary from The National Institute
for Trial Advocacy following 8 USCS § 1181 (relating to
admission of immigrants into the United States).
8 U.S.C. § 1158. Asylum
(a) Authority to apply for asylum.
(1) [In general. Any alien who is physically present in the
United States or who arrives in the United States (whether or
not at a designated port of arrival and including an alien who
is brought to the United States after having been interdicted in
international or United States waters), irrespective of such
alien’s status, may apply for asylum in accordance with this
section or, where applicable, section 235(b) [8 USCS § 1225].
(2) Exceptions.
(A) Safe third country. Paragraph (1) shall not apply
to an alien if the Attorney General determines that the alien
may be removed, pursuant to a bilateral or multilateral
agreement, to a country (other than the country of the alien’s
nationality or, in the case of an alien having no nationality,
the country of the alien’s last habitual residence) in which the
alien’s life or freedom would not be threatened on account of
race, religion, nationality, membership in a particular social
group, or political opinion, and where the alien would have
access to a full and fair procedure for determining a claim to
asylum or equivalent temporary protection, unless the
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Attorney Genera] finds that it is in the public interest for the
alien to receive asylum in the United States.
(B) Time limit. Subject to subparagraph (D),
paragraph (1) shall not apply to an alien unless the alien
demonstrates by clear and convincing evidence that the
application has been filed within 1 year after the date of the
alien’s arrival in the United Siates.
(C) Previous asylum applications. Subject to
subparagraph (D), paragraph (1) shall not apply to an alien if
the alien has previously applied for asylum and had such
application denied.
(D) Changed circumstances. An application for asylum
of an alien may be considered, notwithstanding subparagraphs
(B) and (C), if the alien demonstrates to the satisfaction of the
Attorney General either the existence of changed
circumstances which materially affect the applicant’s
eligibility for asylum or extraordinary circumstances relating
to the delay in filing an application within the period specified
in subparagraph (B).
(3) Limitation on judicial review. No court shall have
jurisdiction to review any determination of the Attorney
General under paragraph (2).
(b) Conditions for granting asylum.
(1) In general.
(A) Eligibility. The Secretary of Homeland Security or
the Attorney General may grant asylum to an alien who has
applied for asylum in accordance with the requirements and
procedures established by the Secretary of Homeland Security
or the Attorney General under this section if the Secretary of
Homeland Security or the Attorney General determines that
such alien is a refugee within the meaning of section
101(a)(42)(A) [8 USCS § 1101(A)(42)(A)}.
(B) Burden of proof.
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(i) In general. The burden of proof is on the
applicant to establish that the applicant is a refugee, within the
meaning of section 101(a)(42)(A) [8 USCS § 1101(a)(42)(A)].
To establish that the applicant is a refugee within the meaning
of such section, the applicant must establish that race,
religion, nationality, membership in a particular social group,
or political opinion was or wiil be at least one central reason
for persecuting the applicant.
(ii) Sustaining burden. The testimony of the
applicant may be sufficient to sustain the applicant’s burden
without corroboration, but only if the applicant satisfies the
trier of fact that the applicant’s testimony is credible, is
persuasive, and refers to specific facts sufficient to
demonstrate that the applicant is a refugee. In determining
whether the applicant has met the applicant’s burden, the trier
of fact may weigh the credible testimony along with other
evidence of record. Where the trier of fact determines that the
applicant should provide evidence that corroborates otherwise
credible testimony, such evidence must be provided unless the
applicant does not have the evidence and cannot reasonably
obtain the evidence.
(iii) Credibility determination. Considering the
totality of the circumstances, and all relevant factors, a trier
of fact may base a credibility determination on the demeanor,
candor, or responsiveness of the applicant or witness, the
inherent plausibility of the applicant’s or witness’s account,
the consistency between the applicant’s or witness’s written
and oral statements (whenever made and whether or not under
oath, and considering the circumstances under which the
statements were made), the internal consistency of each such
statement, the consistency of such statements with other
evidence of record (including the reports of the Department of
State on country conditions), and any inaccuracies or
falsehoods in such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of
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the applicant’s claim, or any other relevant factor. There is no
presumption of credibility, however, if no adverse credibility
determination is explicitly made, the applicant or witness shall
have a rebuttable presumption of credibility on appeal.
(2) Exceptions.
(A) In general. Paragraph (1) shall not apply to an
alien if the Attorney General determines that--
(i) the alien ordered, incited, assisted, or otherwise
participated in the persecution of any person on account of
race, religion, nationality, membership in a particular social
group, or political opinion;
(ii) the alien, having been convicted by a final
judgment of a particularly serious crime, constitutes a danger
to the community of the United States;
(iii) there are serious reasons for believing that the
alien has committed a serious nonpolitical crime outside the
United States prior to the arrival of the alien in the United
States;
(iv) there are reasonable grounds for regarding the
alien as a danger to the security of the United States;
(v) the alien is described in subclause (I), (Il),
(ID, (IV), or (VI) of section 212(a)(3)(B)(i) [8 USCS
§ 1182(a)(3)(B)(i)] or section 237(a)(4)(B) [8 USCS
§ 1227(a)(4)(B)] (relating to terrorist activity), unless, in the
case only of an alien described in subclause (IV) of section
212(a)(3)(B)(i) [8 USCS § 1182(a)(3)(B)(i)], the Attorney
General determines, in the Attorney General’s discretion, that
there are not reasonable grounds for regarding the alien as a
danger to the security of the United States; or
(vi) the alien was firmly resettled in another
country prior to arriving in the United States.
(B) Special rules.
(i) Conviction of aggravated felony. For purposes
of clause (ii) of subparagraph (A), an alien who has been
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convicied of an aggravated felony shall be considered to have
been convicted of a particularly serious crime.
(ii) Offenses. The Attorney General may designate
by regulation offenses that will be considered to be a crime
described in clause (ii) or (iii) of subparagraph (A).
(C) Additional limitations. The Attorney General may
by regulation establish additional limitations and conditions,
consistent with this section, under which an alien shall be
ineligible for asylum under paragraph (1). 7
(D) No judicial review. There shall be no judicial
review of a determination of the Attorney General under
subparagraph (A)(v).
(3) Treatment of spouse and children.
(A) In general. A spouse or child (as defined in section
101(b)(1) (A), (B), (C), (D), or (E) [8 USCS § 1101(b)(1)(A),
(B), (C), (D), or (E)]) of an alien who is granted asylum
under this subsection may, if not otherwise eligible for asylum
under this section, be granted the same status as the alien if
accompanying, or following to join, such alien.
(B) Continued classification of certain aliens as
children. An unmarried alien who seeks to accompany, or
follow to join, a parent granted asylum under this subsection,
and who was under 21 years of age on the date on which such
parent applied for asylum under this section, shall continue to
be classified as a child for purposes of this paragraph and
section 209(b)(3) [8 USCS § 1159(b)(3)], if the alien attained
21 years of age after such application was filed but while it
was pending.
(c) Asylum status.
(1) In general. In the case of an alien granted asylum
under subsection (b), the Attorney General--
(A) shall not remove or return the alien to the alien’s
country of nationality or, in the case of a person having no
nationality, the country of the alien’s last habitual residence;
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(B) shall authorize the alien to engage in employment
in the United States and provide the alien with appropriate
endorsement of that authorization; and
(C) may allow the alien to travel abroad with the prior
consent of the Attorney General.
(2) Termination of asylum. Asylum granted under
subsection (b) does not convey a right to remain permanently
in the United States, and may be terminated if the Attorney
General determines that--
(A) the alien no longer meets the conditions described
in subsection (b)(1) owing to a fundamental change in
circumstances;
(B) the alien meets a condition described in subsection
(b)(2);
(C) the alien may be removed, pursuant to a bilateral
or multilateral agreement, to a country (other than the country
of the alien’s nationality or, in the case of an alien having no
nationality, the country of the alien’s last habitual residence)
in which the alien’s life or freedom would not be threatened
on account of race, religion, nationality, membership in a
particular social group, or political opinion, and where the
alien is eligible to receive asylum or equivalent temporary
protection;
(D) the alien has voluntarily availed himself or herself
of the protection of the alien’s country of nationality or, in the
case of an alien having no nationality, the alien’s country of
last habitual residence, by returning to such country with
permanent resident status or the reasonable possibility of
obtaining such statws with the same rights and obligations
pertaining to other permanent residents of that country; or
(E) the alien has acquired a new nationality and enjoys
the protection of the country of his or her new nationality.
(3) Removal when asylum is terminated. An alien
described in paragraph (2) is subject to any applicable grounds
of inadmissibility or deportability under section 212(a) and
5Sa
237(a) (8 USCS § 1182(a), 1227(a)], and the alien’s removal
or return shall be directed by the Attorney General in
accordance with sections 240 and 241 [8 USCS §§ 1229a,
1231].
(d) Asylum procedure.
(1) Applications. The Attorney General shall establish a
procedure for the consideration of asylum applications filed
under subsection (a). The Attorney General may require
applicants to submit fingerprints and a photograph at such
time and in such manner to be determined by regulation by
the Attorney General.
(2) Employment. An applicant for asylum is not entitled
to employment authorization, but such authorization may be
provided under regulation by the Attorney General. An
applicant who is not otherwise eligible for employment
authorization shall not be granted such authorization prior to
180 days after the date of filing of the application for asylum.
(3) Fees. The Attorney General may impose fees for the
consideration of an application for asylum, for employment
authorization under this section, and for adjustment of status
under section 209(b) [8 USCS § 1159(b)]. Such fees shall not
exceed the Attorney General’s costs in adjudicating the
applications. The Attorney General may provide for the
assessment and payment of such fees over a period of time or
by installments. Nothing in this paragraph shall be construed
to require the Attorney General to charge fees for adjudication
services provided to asylum applicants, or to limit the
authority of the Attorney General to set adjudication and
naturalization fees in accordance with section 286(m) [8
USCS § 1356(m)].
(4) Notice of privilege of counsel and consequences of
frivolous application. At the time of filing an application for
asylum, the Attorney General shall--
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(A) advise the alien of the privilege of. being
represented by counsel and of the consequences, under
paragraph (6), of knowingly filing a frivolous application for
asylum; and
(B) provide the alien a list of persons (updated not less
often than quarterly) who have indicated their availability to
represent aliens in asylum proceedings on a pro bono basis.
(5) Consideration of asylum applications.
(A) Procedures. The procedure established under
paragraph (1) shall provide that--
(i) asylum cannot be granted unti! the identity of
the applicant has been checked against all appropriate records
or databases maintained by the Attorney General and by the
Secretary of State, including the Automated Visa Lookout
System, to determine any grounds on which the alien may be
inadmissible to or deportable from the United States, or
ineligible to apply for or be granted asylum;
(ii) in the absence of exceptional circumstances, the
initia) interview or hearing on the asylum application shall
commence not later than 45 days after the date an application
is filed; °
(iii) in the absence of exceptional circumstances,
final administrative adjudication of the asylum application, not
including administrative appeal, shall be completed within 180
days after the date an applica.ion is filed;
(iv) any administrative appeal shall be filed within
30 days of a decision granting or denying asylum, or within
30 days of the completion of removal proceedings before an
immigration judge under section 240 [8 USCS § 1229a],
whichever is later; and
(v) in the case of an applicant for asylum who fails
without prior authorization or in the absence of exceptional
circumstances to appear for an interview or hearing, including
a hearing under section 240 [8 USCS § 1229a], the
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application may be dismissed or the applicant may be
otherwise sanctioned for such failure.
(B) Additional regulatory conditions. The Attorney
General may provide by regulation for any other conditions or
limitations on the consideration of an application for asylum
not inconsistent with this Act.
(6) Frivolous applications. If the Attorney General
determines that an alien has knowingly made a frivolous
application for asylum and the alien has received the notice
under paragraph (4)(A), the alien shall be permanently
ineligible for any benefits under this Act, effective as of the
date of a final determination on such application.
(7) No private right of action. Nothing in this subsection
shall be construed to create any substantive or procedural
right or benefit that is legally enforceable by any party against
the United States or its agencies or officers or any other
person.
TITLE 8. ALIENS AND NATIONALITY
CHAPTER 12. IMMIGRATION AND NATIONALITY
ADJUSTMENT AND CHANGE OF STATUS
GENERAL PENALTY PROVISIONS
8 U.S.C. § 1324c. Penalties for document fraud
(a) Activities prohibited. It is unlawful for any person or
entity knowingly--
(1) to forge, counterfeit, alter, or falsely make any
document for the purpose of satisfying a requirement of this
Act or to obtain a benefit under this Act,
(2) to use, attempt to use, possess, obtain, accept, or
receive or to provide any forged, counterfeit, altered, or
falsely made document in order to satisfy any requirement of
this Act or to obtain a benefit under this Act,
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(3) to use or attempt to use or to provide or attempt to
provide any document lawfully issued to or with respect to a
person other than the possessor (including a deceased
individual) for the purpose of satisfying a requirement of this
Act or obtaining a benefit under this Act,
(4) to accept or receive or to provide any document
lawfully issued to or with respect to a person other than the
possessor (including a deceased individual) for the purpose of
complying with section 274A(b) [8 USCS § 1324a(b)] or
obtaining a benefit under this Act, or
(5) to prepare, file, or assist another in preparing or filing,
any application for benefits under this Act, or any document
required under this Act, or any document submitted in
connection with such application or document, with
knowledge or in reckless disregard of the fact that such
application or document was falsely made or, in whole or in
part, does not relate to the person on whose behaif it was or
is being submitted, or
(6) (A) to present before boarding a common carrier for
the purpose of coming to the United States a document which
relates to the alien’s eligibility to enter the United States, and
(B) to fail to present such document to an immigration
officer upon arrival at a United States port of entry.
(b) Exception. This section does not prohibit any lawfully
authorized investigative, protective, or intelligence activity of
a law enforcement agency of the United States, a State, or a
subdivision of a State, or of an intelligence agency of the
United States, or any activity authorized under chapter 224 of
title 18, United States Code [18 USCS §§ 3521 et seq. |.
(c) Construction. Nothing in this section shall be construed
to diminish or qualify any of the penalties available for
activities by this section but proscribed as well in title 18,
United States Code.
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(d) Enforcement.
(1) Authority in investigations. In conducting
investigations and hearings under this subsection--
(A) immigration officers and administrative law judges
shall have reasonable access to examine evidence of any
person or entity being investigated,
(B) administrative law judges, may, if necessary,
compel by subpoena the attendance of witnesses and the
production of evidence at any designated place or hearing, and
(C) immigration officers designated by the
Commissioner may compel by subpoena the attendance of
witnesses and the production of evidence at any designated
place prior to the filing of a complaint in a case under
paragraph (2).
In case of contumacy or refusal to obey a subpoena
lawfully issued under this paragraph and upon application of
the Attorney General, an appropriate district court of the
United States may issue an order requiring compliance with
such subpoena and any failure to obey such order may be
punished by such court as a contempt thereof.
(2) Hearing.
(A) In general. Before imposing an order described in
paragraph (3) against a person or entity under this subsection
for a violation of subsection (a), the Attorney General shall
provide the person or entity with notice and, upon request
made within a reasonable time (of not less than 30 days, as
established by the Attorney General) of the date of the notice,
a hearing respecting the violation.
(B) Conduct of hearing. Any hearing so requested
shall be conducted before an administrative law judge. The
hearing shall be conducted in accordance with the
requirernents of section 554 of title 5, United States Code.
The hearing shall be held at the nearest practicable place to
the place where the person or entity resides or of the place
where the alleged violation occurred. If no hearing is so
60a
requested, the Attorney General’s imposition of the order
shall constitute a final and unappealable order.
(C) Issuance of orders. If the administrative law judge
determines, upon the preponderance of the evidence received,
that a person or entity has violated subsection (a), the
administrative law judge shall state his findings of fact and
issue and cause to be served on such person or entity an order
described in paragraph (3).
(3) Cease and desist order with civil money penalty
[Caution: For inflation-adjusted civil monetary penalties,
see 8 CFR 270.3(b)(1)(ii).]. With respect to a violation of
subsection (a), the order under this subsection shall require
the person or entity to cease and desist from such violations
and to pay a civil penalty in an amount of--
(A) not less than $ 250 and not more than $ 2,000 for
each document that is the subject of a violation under
subsection (a), or
(B) in the case of a person or entity previously subject
to an order under this paragraph, not less than $ 2,000 and
not more than $ 5,000 for each document that is the subject of
a violation under subsection (a).
In applying this subsection in the case of a person or entity
composed of distinct, physically separate subdivisions each of
which provides separately for the hiring, recruiting, or
- referring for employment, without reference to the practices
of, and not under the control of or common control with,
another subdivision, each such subdivision shall be considered
a separate person or entity.
(4) Administrative appellate review. The decision and
order of an administrative law judge shall become the final
agency decision and order of the Attorney General unless
either (A) within 30 days, an official delegated by regulation
to exercise review authority over the decision and order
modifies or vacates the decision and order, or (B) within 30
days of the date of such a modification or vacation (or within
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60 days of the date of decision and order of an administrative
law judge if not so modified or vacated) the decision and
order is referred to the Attorney General pursuant to
regulations, in which case the decision and order of the
Attorney General shall become the final agency decision and
order under this subsection.
(5) Judicial review. A person or entity adversely affected
by a final order under this section may, within 45 days after
the date the final order is issued, file a petition in the Court of
Appeals for the appropriate circuit for review of the order.
(6) Enforcement of orders. If a person or entity fails to
comply with a final order issued under this section against the
person or entity, the Attorney General shall file a suit to seek
compliance with the order in any appropriate district court of
the United States. In any such suit, the validity and
appropriateness of the final order shall not be subject to
review.
(7) Waiver by Attorney General. The Attorney General
may waive the penalties imposed by this section with respect
to an alien who knowingly violates subsection (a)(6) if the
alien is granted asylum under section 208 [8 USCS § 1158] or
withholding of removal under section 241(b)(3) [8 USCS
§ 1251(b)(3)).
(e) Criminal penalties for failure to disclose role as document
preparer.
(1) Whoever, in any matter within the jurisdiction of the
Service, knowingly and willfully fails to disclose, conceals,
or covers up the fact that they have, on behalf of any person
and for a fee or other remuneration, prepared or assisted in
preparing an application which was falsely made (as defined
in subsection (f)) for immigration benefits, shall be fined in
accordance with title 18, United States Code, imprisoned for
not more than 5 years, or both, and prohibited from preparing
62a
or assisting in preparing, whether or not for a fee or other
remuneration, any other such application.
(2) Whoever, having been convicted of a violation of
paragraph (1), knowingly and willfully prepares or assists in
preparing an application for immigration benefits pursuant to
this Act, or the regulations promulgated thereunder, whether
or not for a fee or other remuneration and regardless of
whether in any matter within the jurisdiction of the Service,
shall be fined in accordance with title 18, United States Code,
imprisoned for not more than 15 years, or both, and
prohibited from preparing or assisting in preparing any other
such application.
(f) Falsely make. For purposes of this section, the term
“falsely make” means to prepare or provide an application or
document, with knowledge or in reckless disregard of the fact
that the application or document contains a false, fictitious, or
fraudulent statement or material representation, or has no
basis in law or fact, or otherwise fails to state a fact which is
material to the purpose for which it was submitted.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.