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Issiaka v. Attorney General of the United States

June 11, 2009

BAYO ISSIAKA, PETITIONER
v.
ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT



Petition for Review of an Order of the Board of Immigration Appeals Agency No. A98-690-456 (Immigration Judge Miriam K. Mills).

The opinion of the court was delivered by: Mckee, Circuit Judge

PRECEDENTIAL

Argued: October 29, 2008

Before: MCKEE, NYGAARD, and MICHEL,*fn1 Circuit Judges,

OPINION

Bayo Issiaka petitions for review of a final decision of the Board of Immigration Appeals ordering his removal to the Ivory Coast and denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). For the reasons explained below, we will grant the petition and remand this matter to the Board for further proceedings.

I. Background

Bayo Issiaka, a native and citizen of Cote d'Ivoire (the "Ivory Coast"), claims to have traveled to the United States as a stowaway aboard a cargo ship, and to have arrived in the United States in December 2003. He filed an asylum application on December 13, 2004, and was subsequently given notice of removal because he had not legally entered the United States. Thereafter, Issiaka conceded removability, but requested relief in the form of asylum, withholding of removal, and relief under the Convention Against Torture (the "CAT").

At a hearing before an Immigration Judge (Hon. Miriam Mills), Issiaka testified that his father had worked as a chauffeur for General Robert Guei, Cote d'Ivoire's deposed military leader. On September 19, 2002, Guei and Issiaka's father were killed by government troops during an apparent coup attempt. The next day, soldiers came to Issiaka's home in Abidjan. The soldiers shot and killed Issiaka's mother, and forcibly took Issiaka and his brother to a military camp. According to Issiaka, at the camp, he was beaten with sticks and his brother was tied to a car and dragged to his death.

While Issiaka was being detained at the camp, a family friend named "Colonel Bakayioko," arrived at Issiaka's home and discovered that Issiaka's mother had been killed. The colonel retrieved some of the family's identification papers and drove to the military camp where Issiaka was being held. According to Issiaka, he was able to leave the camp and flee to a friend's house in the village of San Pedro with the Colonel's help. There, a doctor treated the wounds inflicted during Issiaka's beating.

Issiaka testified that in November 2003, he snuck aboard a cargo ship bound for the United States. He also said that, since arriving in the United States, he has been in touch with his aforementioned friend in San Pedro, as well as with other friends in Abidjan, and with his uncle. The uncle sent Issiaka copies of some identification documents that were in the possession of Issiaka's former employer.

The Immigration Judge rejected the asylum claim as untimely because Issiaka could not establish that he filed his asylum petition within one year of his arrival in the United States. See 8 U.S.C. § 1158(a)(2)(B). The IJ also denied the application for withholding of removal and CAT relief, because the IJ concluded that Issiaka was not credible. The IJ based the adverse credibility determination on inconsistencies in Issiaka's testimony, his lack of specificity regarding his head wounds, his failure to mention any medical treatment for those wounds in his written asylum application, and the absence of corroboration.

Issiaka appealed to the Board of Immigration Appeals, but the Board affirmed the IJ's ruling in a brief per curiam opinion. The Board agreed that the asylum application was not timely, and that Issiaka was not credible. This petition followed.

II. Standard of Review

Because the Board implicitly adopted the findings of the Immigration Judge while discussing the IJ's conclusions, we review the decisions of both the Board and the IJ. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). Our review is subject to the familiar "substantial evidence" standard. Accordingly, we must determine if the conclusions of the IJ and Board are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998) (quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). Adverse credibility determinations must be based on "specific, cogent reasons." They must not rest on "speculation, conjecture or . . . otherwise unsupported personal opinion." Dia v. Ashcroft, 353 F.3d 228, 250 (3d Cir. 2003) (en banc). Similarly, adverse credibility findings may not rest upon minor inconsistencies that do not go to the "heart of the asylum claim."

Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002) (quoting Ceballos-Castillo v. INS 904 F.2d 519, 520 (9th Cir. 1990)).

III. We Lack Jurisdiction to Review the Asylum Claim.

Issiaka concedes that we do not have jurisdiction to review the agency's determination that his asylum petition was untimely. See 8 U.S.C. § 1158(a)(3); Sukwanputra v. Gonzales, 434 F.3d 627, 633 (3d Cir. 2006). Thus, we review only the agency's denial of withholding of removal and his claim for protection under the CAT.

IV. Adverse Credibility Determination

In its brief per curiam opinion, the Board found no clear error in the IJ's adverse credibility determination. The Board explained:

[T]he Immigration Judge found the respondent's testimony regarding his head wounds lacks credibility because of his inability to reasonably describe his injury []. The respondent testified that a doctor gave him pain killers for his injuries, though he failed to testify that he received stitches []. In addition, the respondent failed to mention in his Statement that he sought medical treatment []. We find that the Immigration Judge's credibility analysis comports with the standards applicable in the United States Court of Appeals for the Third Circuit . . . .

App. 2 (record citations omitted). That adverse credibility determination provided the sole ground for denying Issiaka's petition for withholding of removal. After reviewing the record, we conclude that the reasons given to justify rejecting Issiaka's testimony are not supported by substantial evidence.

With regard to his head wounds, Issiaka's written statement in support of his application for relief states as follows:

They threw my brother and me on the pile of dead bodies. They took wood from the trees and began beating us with the sticks. I suffered cuts to my forehead, the top of my head, and my shin. . . . I was taken [by a family friend] to my friend's house in San Pedro, and cleaned up my wounds. I had been cut on the forehead, on the top of my head, and on my shin when the soldiers were beating me at the army camp. . . . I did not try to leave from San Pedro at that time, as I feared that the army would find me on my way out. It took me about a month or two to get better and heal.

App. 207-208.

At the hearing before the IJ, the following exchange occurred about Issiaka's wounds:

ISSIAKA: Because I have a, I have, because I have beaten by the military on my head and they have wounded. That's why I needed the medication.

JUDGE: What was wrong with your head?

ISSIAKA: That's what you can see it's --

JUDGE: Does he have a scar on his head? PETITIONER'S COUNSEL: Yes.

ISSIAKA: Yes, I have the scar you can see that.

JUDGE: I can kind of see it from here. All right . . . .

JUDGE: Describe the head wound that you said ...


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