Daramy v. Atty Gen USA

Filing 3110098013

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NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT

N o . 08-2537

M A H A M A D O U DARAMY, a/k/a Jakara Drammeh, Petitioner v. A T T O R N E Y GENERAL OF THE UNITED STATES, Respondent

O n Petition for Review of an Order of the B o a rd of Immigration Appeals B IA No. A79-290-920 (U .S . Immigration Judge: Honorable Mirlande Tadal)

S u b m itte d Pursuant to Third Circuit LAR 34.1(a) J a n u a ry 11, 2010 B e f o re : SCIRICA, Chief Judge, BARRY and SMITH, Circuit Judges. (F ile d : February 8, 2010)

O P IN I O N OF THE COURT

S C IR IC A , Chief Judge. A p p e lla n t-P e titio n e r Mahamadou Daramy appeals the denial of his applications for a sylu m , withholding of removal, and protection under Article 3 of the UN Convention

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A g a in s t Torture ("CAT"). The Immigration Judge ("IJ") held that the "law of the case" d o c trin e precluded Daramy's applications because they are "in sum and substance the sam e applications for relief" as the ones Daramy previously submitted and which were d e n ie d . Additionally, the IJ found Daramy's applications untimely because they were not filed "within one year after the date of the alien's arrival in the United States." The Board o f Immigration Appeals ("BIA") affirmed on both grounds. Daramy filed a timely a p p e al. We will vacate and remand.1 I. D a ra m y is a native and citizen of Sierra Leone. He first arrived in the United S ta te s, without inspection or authorization, on or about April 1, 2001. On May 5, 2001, h e filed an application for asylum based on race, religion, and nationality; withholding of re m o v a l; and protection under CAT. In support of his application, Daramy stated that R e v o lu tio n a ry United Front ("RUF") rebels attacked his village in 1999, destroyed his f a m ily home, shot his parents to death, and took him to a rebel camp, where he was b e a te n and jailed for refusing to join their cause. Daramy claimed he was freed when the c a m p was liberated and then traveled to a refugee camp in Guinea, where he spent six

The BIA had jurisdiction over this matter under 8 C.F.R. § 1003.1(b)(3), which grants it appellate jurisdiction over decisions of immigration judges in removal cases. We have ju ris d ic tio n to review a final order of removal under 8 U.S.C. § 1252. Briseno-Flores v. A tt'y Gen., 492 F.3d 226, 228 (3d Cir. 2007). Removal proceedings occurred in Newark, N ew Jersey, and venue is therefore proper under 8 U.S.C. § 1252(b)(2). 2

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m o n th s . Daramy stated that a friend at the camp assisted him in procuring documents and a ticket to come to the United States. O n December 21, 2004, the Department of Homeland Security ("DHS") served D a ra m y with a Notice to Appear. The hearing was held before the Immigration Court in S ea ttle, Washington on April 20, 2005, and on November 2, 2005, the IJ denied Daramy's a p p lic a tio n . The IJ found Daramy not credible because of "material inconsistencies b e tw e e n [his] testimony and his written statements," and questioned the authenticity of D a r a m y' s documents. The IJ also concluded Daramy's application was untimely because D a ra m y did not have a passport and therefore could not prove when he first arrived in the U n ite d States. Additionally, the IJ stated that even if Daramy was found credible, the c o u rt would deny relief for failure to show that alleged persecution occurred on account o f a protected ground: "The respondent testified that he does not know if his family was p o litica lly active and he stated no grounds why he or his family was targeted by the rebels o th e r then [sic] to recruit the respondent and his brother into the rebel forces. A re c ru itm e n t is not a protective ground." Finally, the IJ noted that country conditions in S ie rra Leone had changed since 1999 "to such a material extent that they have rebutted a n y reasonably [sic] possibility that the respondent would be harmed should he be re tu rn e d to Sierra Leone." The IJ also denied CAT protection, finding "no competent c re d ib le objective evidence that should the respondent be returned to Sierra Leone," he

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w o u ld be tortured. Daramy's request for voluntary departure was also denied because he d id not have a valid travel passport. O n November 8, 2005, Daramy filed a motion to reopen and reconsider, arguing th a t the court made numerous errors in its November 2, 2005 decision. In the alternative, D a ra m y requested that the court grant him voluntary departure because he had since o b tain ed valid travel documents. On November 29, 2005, the Immigration Court r e o p e n e d the proceedings and granted Daramy voluntary departure. On the merits, h o w e v e r, the court denied the motion, stating that even if adverse findings regarding D a ra m y's credibility were erroneous, the outcome would not change because of the altern ativ e ground for the IJ's November 2, 2005 decision--material change in country c o n d i ti o n s . O n November 30, 2005, Daramy filed a timely appeal with the BIA. During the p e n d e n cy of the appeal, on or about April 19, 2007, Daramy departed from the United S ta te s to Gambia to look for his sister. While he was in Gambia, the BIA affirmed the IJ 's decision, adopting the portions of the IJ's opinion regarding untimeliness of the a sylu m application, change in country conditions in Sierra Leone, and lack of evidence f o r protection under CAT. Daramy did not file a petition for review with the Court of A p p e a ls for the Ninth Circuit. O n July 8, 2007, Daramy returned to the United States, without inspection or a u th o riz a tio n . On July 19, 2007, the DHS served him with a Notice to Appear. At the

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h e a rin g before the Immigration Court in Newark, New Jersey, on August 2, 2007, D a ra m y conceded removability. On August 17, 2007, Daramy filed new applications for a sylu m based on political opinion and membership in a particular social group, w ith h o ld in g of removal, and CAT protection. The factual basis for these applications was th e same as that for the applications filed in 2001. O n December 20, 2007, the IJ of the Immigration Court in Newark, New Jersey d e n ie d Daramy's new applications. Finding the applications were "in sum and substance the same applications for relief submitted to the court on April 20, 2005," the IJ c o n c lu d e d that the law of the case doctrine precluded Daramy from making the same a p p lic a tio n s for relief. Additionally, the IJ held the applications were untimely because " [ w ]h ile the Respondent `last arrived' in the United States on July 8, 2007 the court finds th a t the Respondent has in actuality been `present' in the United States since April 2001, e x c ep t for a brief trip to Gambia for the express intention of returning to the United States to reapply for asylum." Accordingly, the court found "that in determining Respondent['s] e lig ib ility for asylum, April 2001 and not July 8, 2007, is the date on which R e s p o n d e n t[ 's ] `presence' in the United States commenced." D a ra m y appealed to the BIA, and on April 28, 2008, the BIA adopted and affirmed th e IJ's decision. Specifically the BIA held that "this case involves the litigation of a lre a d y-d is p o s e d -o f issues, albeit in new proceedings to remove the same individual," and " th e legal issues decided expressly or by implication in the prior immigration proceedings

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in v o lv in g the same individual shall apply under the `law of the case' doctrine in the in te re sts of judicial economy, jurisprudential integrity, and finality in immigration p ro c e ed in g s ." The BIA also adopted the IJ's "additional finding that the respondent may n o t now seek asylum as he has failed to file his application within one year of his arrival in the United States," because his last arrival "followed a temporary departure from the U n ite d States rather than a flight from prosecution." D a ra m y filed a timely appeal.2 II. A. T h e BIA affirmed the IJ's application of the law of the case doctrine to deny relief b a s e d on the findings in the initial removal proceedings in 2005. The law of the case d o c trin e "posits that when a court decides upon a rule of law, that decision should c o n tin u e to govern the same issues in subsequent stages in the same case." Christianson

Where "the BIA both adopts the findings of the IJ and discusses some of the bases for th e IJ's decision, we have authority to review the decisions of both the IJ and the BIA." Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). We exercise plenary review over an a g e n c y's legal determinations, "subject to the principles of deference articulated in C h e v ro n v. Natural Resources Defense Council, 467 U.S. 837, 844 (1984)." Pierre v. A tt'y Gen., 528 F.3d 180, 184 (3d Cir. 2008) (citing Briseno-Flores, 492 F.3d at 228 (3d C ir. 2007) and Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004)). We must uphold the f a ctu a l findings if they were "supported by reasonable, substantial, and probative e v id e n c e on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481 (1 9 9 2 ); Abdille v. Ashcroft, 242 F.3d 477,483­84 (3d Cir. 2001) ("Under the substantial e v id e n c e standard, [the agency's factual findings] must be upheld unless the evidence not o n ly supports a contrary conclusion, but compels it."). 6

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v . Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988) (quoting Arizona v. California, 4 6 0 U.S. 605, 618 (1983)); see also ACLU v. Mukasey, 534 F.3d 181, 187 (3d Cir. 2008). "Law of the case rules have developed to maintain consistency and avoid reconsideration o f matters once decided during the course of a single continuing lawsuit." Pub. Interest R e se a rc h Group of N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 116 (3d Cir. 1 9 9 7 ) (quoting 18 Charles A. Wright, Arthur R. Miller & Edward Cooper, Federal P r a c tic e and Procedure § 4478, at 788 (1981)); see also Casey v. Planned Parenthood of S e . Pa., 14 F.3d 848, 856 (3d Cir. 1994). Thus, the law of the case doctrine "do[es] not ap p ly between separate actions." 18B Charles A. Wright, Arthur R. Miller & Edward C o o p e r, Federal Practice and Procedure § 4478, at 638­39 (2d ed. 2002); see also Soc'y o f Separationists, Inc. v. Herman, 939 F.2d 1207, 1214 (5th Cir. 1991) ("[The prior case] a n d the case before us are altogether separate proceedings, so law of the case is in a p p lica b le." ); Harbor Ins. Co. v. Essman, 918 F.2d 734, 738 (8th Cir. 1990). T h e law of the case doctrine is inapposite to this case because the removal p ro c e ed in g s in question, initiated with service of a Notice to Appear on July 19, 2007 and h e ld in Newark, New Jersey, are separate from the removal proceedings previously in itia te d with service of a Notice to Appear on December 21, 2004 and held in Seattle, W a sh in g to n . The IJ applied the law of the case doctrine based on Daramy's concession " th a t his applications for relief submitted to this court on August 17, 2007 are in sum and s u b s ta n c e the same applications for relief submitted to the court on April 20, 2005." The

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B I A correctly noted that "this case involves the litigation of already-disposed-of issues, a lb e it in new proceedings to remove the same individual." But its legal conclusion that " [ i]n such a situation, the legal issues decided expressly or by implication in the prior im m ig ra tio n proceedings involving the same individual shall apply under the `law of the c a se ' doctrine'" was erroneous because the law of the case doctrine does not apply to s e p a r a te actions. T h e IJ and BIA relied on legal authorities applying the law of the case doctrine in th e same case, not separate cases. In In re S-Y-G-, 24 I. & N. Dec. 247, 250 (BIA 2007), th e BIA held that the IJ's adverse credibility determination, which was affirmed by the B IA and not appealed to the Court of Appeals, remained the law of the case on remand f ro m a subsequent appeal on a separate issue. Therefore, In re S-Y-G- involved the same re m o v a l proceedings. The BIA also cited In re City of Phila. Litig., 158 F.3d 711 (3d Cir. 1 9 9 8 ), where we stated that "[u]nder the law of the case doctrine, one panel of an a p p e lla te court generally will not consider questions that another panel has decided on a p rio r appeal in the same case." Id. at 717. Finally, the Operating Policy and Procedure M e m o r a n d u m 01-02­Changes of Venue,3 from the Office of the Chief Immigration J u d g e , instructs immigration judges to follow the law of the case doctrine in cases where v e n u e is changed. Here, no change of venue took place--the removal proceedings in N e w a rk , New Jersey were separate from those in Seattle, Washington. The IJ and the

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Available at http://www.justice.gov/eoir/efoia/ocij/oppm01/OPPM01-02.pdf. 8

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B IA erred in applying the law of the case doctrine here because the doctrine is in a p p l ic a b l e in the context of separate proceedings.4 B. T h e BIA also affirmed the IJ's "additional finding that the respondent may not n o w seek asylum as he has failed to file his application within one year of his arrival in th e United States." 5 Asylum cannot be granted "unless the alien demonstrates by clear Our holding need not disturb the BIA's asserted "interests of judicial economy, ju ris p ru d e n tia l integrity, and finality in immigration proceedings." Traditional res ju d ic a ta principles have been applied in immigration proceedings. See, e.g., Duvall v. A tt'y Gen., 436 F.3d 382, 386­90 (3d Cir. 2006); Medina v. INS, 993 F.2d 499, 503­04 (5 th Cir. 1993); Ramon-Sepulveda v. INS, 824 F.2d 749, 750 (9th Cir. 1987); Matter of F e d o re n k o , 19 I. & N. Dec. 57, 61­67 (BIA 1984); see also Restatement (Second) of J u d g m e n ts § 83. But although "[t]he doctrine of law of the case is similar to the issue p re c lu s io n prong of res judicata in that it limits relitigation of an issue once it has been d e c id e d ," the doctrines are distinct. Rezzonico v. H & R Block, Inc., 182 F.3d 144, 148 (2 d Cir. 1999). "[L]aw of the case is concerned with the extent to which law applied in a d e c is io n at one stage of litigation becomes the governing principle in later stages of the s a m e litigation. Res judicata does not speak to direct attacks in the same case, but rather h a s application in subsequent actions." Id. But we will not apply res judicata rules in the f irs t instance. See Konan v. Att'y Gen., 432 F.3d 497, 501 (3d Cir. 2005) ("[A] reviewing co u rt is powerless to decide in the first instance issues that an agency does not reach."); s e e also INS v. Ventura, 537 U.S. 12, 18 (2002) (per curiam). The BIA can consider th o s e principles in the first instance, and remand to the Immigration Court to further d e v e lo p the factual record as might be necessary. The BIA may also wish to consider in th e first instance whether the statutory bar under 8 U.S.C. § 1158(a)(2)(C) applies to D a r a m y' s second asylum application. We express no opinion on the merits of these is s u e s or whether they have been preserved. We generally do not have jurisdiction to review the Attorney General's d e te rm in a tio n s regarding the one-year deadline provided in 8 U.S.C. § 1158(a)(2)(B). See 8 U.S.C. § 1158(a)(3) ("No court shall have jurisdiction to review any determination o f the Attorney General under paragraph (2)."). However, we have jurisdiction to review a n y "constitutional claims or questions of law" raised in a petition for review, (c o n tin u e d ...) 9
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a n d convincing evidence that the application has been filed within 1 year after the date of th e alien's arrival in the United States." 8 U.S.C. § 1158(a)(2)(B). "The 1-year period s h a ll be calculated from the date of the alien's last arrival in the United States or April 1, 1 9 9 7 , whichever is later." 8 C.F.R. § 1208.4(a)(2)(ii) (2009). The term "last arrival" is n o t defined by statute or its implementing regulations. T h e IJ relied on Joaquin-Porras v. Gonzales, 435 F.3d 172 (2d Cir. 2006), where th e Court of Appeals for the Second Circuit held that "the term `last arrival in the United S tate s' should not be read to include an alien's return to the United States after a brief trip a b ro a d pursuant to a parole explicitly permitted by United States immigration a u th o ritie s." Id. at 179. Notably, the Court of Appeals for the Second Circuit did not h a v e the benefit of the BIA's interpretation of this provision. Id. at 178 ("When, h o w e v e r, as is the case before us, the BIA summarily affirms a decision of an im m ig ra tio n judge, we do not extend [] deference to the IJ's statutory interpretations." (in te rn a l citations omitted)). Instead, the court noted that "in other contexts `last arrival [ in ] the United States' has been taken to exclude returns from temporary departures from

(...continued) n o tw ith s ta n d in g "any other provision of this chapter . . . which limits or eliminates ju d ic ia l review." 8 U.S.C. § 1252(a)(2)(D). The proper interpretation of the 1-year d e a d lin e in 8 U.S.C. § 1158(a)(2)(B) is a question of law over which we have jurisdiction. See Mudric v. Att'y Gen., 469 F.3d 94, 101 (3d Cir. 2006); see also Khunaverdiants v. M u k a se y , 548 F.3d 760, 765­66 (9th Cir. 2008); Joaquin-Porras v. Gonzales, 435 F.3d 1 7 2 , 178 (2d Cir. 2006) ("As the government concedes, the proper interpretation of the o n e -ye a r deadline provision of 8 U.S.C. § 1158(a)(2) is a question of law over which we h av e jurisdiction under the REAL ID Act."). 10

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th e country." Id. at 179. Further, the court concluded its interpretation "best accords with th e purpose of the statute as a whole." Id. Specifically, the court observed that the Illegal Im m ig ra tio n Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 1 0 4 -2 0 8 , 110 Stat. 3009, which added the 1-year deadline to the Immigration and N a tio n a lity Act ("INA"), aimed to address "the abuse of humanitarian provisions such as a sylu m ." Id. at 180 (quoting S. Rep. No. 104-249, at 3 (1996)). Accordingly, the court co n clud ed that "[p]ermitting applicants to reset the asylum clock by taking a short e x c u rs io n abroad would undermine the one-year deadline's clear purpose of focusing the a sylu m process on those who have recently fled persecution in their home countries." Id. A lth o u g h the IJ in this case relied on the reasoning of Joaquin-Porras, and the B IA affirmed, a subsequent decision by the BIA in In re F-P-R-, 24 I. & N. Dec. 681 (B IA 2008), adopted an opposite viewpoint and rejected Joaquin-Porras's interpretation. The relevant facts of In re F-P-R- are similar to this case. The petitioner, a native and c itiz e n of Mexico, initially arrived in the United States in 1983 without inspection. Later th a t year, he returned to Mexico where he stayed until returning to the United States w ith o u t inspection in 1989. He remained in the United States without lawful status until h e returned to Mexico on June 17, 2005, to attend a funeral. He then returned to the U n ite d States on July 20, 2005, when he was apprehended and placed in removal p ro c e e d in g s . The petitioner conceded removability and filed an application for asylum. Id. at 681­82. The IJ found the petitioner "ineligible for asylum as a result of his failure

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to file . . . within 1 year of his `last arrival' in the United States," adopting the rationale of J o a q u in -P o r r a s to calculate the petitioner's "1-year period of eligibility to apply for a sylu m from his second arrival in the United States in 1989 instead of his most recent c o m in g to this country on July 20, 2005." Id. at 682. T h e BIA sustained the appeal, giving the term "last arrival" its ordinary meaning o f the "alien's most recent coming or crossing into the United States after having traveled f ro m somewhere outside of the country." Id. at 683. The BIA also held that under 8 C .F .R . § 1208.4(a)(2)(ii) (2008), "the identification and use of the date of the alien's last a rriv a l in the United States for purposes of calculating the 1-year filing period is m a n d a to ry, not discretionary or conditional." Id. at 684. Therefore, it concluded that the IJ erred in calculating a 1-year filing period on the basis of the prior arrival date. Id. In reaching its holding, the BIA explicitly rejected the reasoning of JoaquinP o r r a s . See id. ("We disagree with Joaquin-Porras in that we discern no basis for c o n stru in g the regulation as not taking into account entries that occurred after brief a b se n c es from the United States."). The BIA observed that the IIRIRA's "legislative h is to ry provides no direct insight into the Attorney General's intent in promulgating the clea r regulatory text through which he implemented his delegated authority to administer, in te rp re t, and enforce the 1-year filing period." Id. at 685. The BIA recognized that "the lite ra l construction of the term `last arrival' may have the potential to permit certain aliens to defeat the purpose of the 1-year asylum filing deadline by making a brief trip abroad

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f o r the sole or principal purpose of evading the time bar and resuscitating the ability to s e e k asylum." Id. Because it was not disputed in that case that the petitioner's trip was f o r a legitimate purpose, the BIA did not "examine whether the regulation should be read to embody an implicit exception in a case where it is found that an alien's trip abroad was s o le ly or principally intended to overcome the 1-year time bar." Id. W e must accord deference to the BIA's interpretation of the one-year deadline p ro v is io n in 8 U.S.C. § 1158(a)(2)(B) and corresponding implementing regulation, 8 C .F .R . § 1208.4(a)(2)(ii). See INS v. Aguirre-Aguirre, 526 U.S. 415, 424­25 (1999) (h o ld in g that "principles of Chevron deference are applicable" in the immigration context a n d emphasizing that "judicial deference to the Executive Branch is especially a p p ro p ria te in the immigration context"); see also Kamara v. Att'y Gen., 420 F.3d 202, 2 1 1 (3d Cir. 2005) (stating we "will afford Chevron deference to the BIA's reasonable in te rp re ta tio n s of statutes with which it is charged with administering" (internal citations o m itte d )). Because Congress did not define the term "the date of the alien's arrival" in 8 U .S .C . § 1158(a)(2)(B), "the agency's interpretation is given controlling weight unless it is arbitrary, capricious, or manifestly contrary to the statute." United States v. Geiser, 527 F .3 d 288, 292 (3d Cir. 2008) (internal quotations omitted). Further, "an agency's in te rp re ta tio n of its own regulation[] is `controlling unless plainly erroneous or in c o n sis te n t with the regulation.'" Star Enter. v. EPA, 235 F.3d 139, 147 (3d Cir. 2000) (q u o tin g Auer v. Robbins, 519 U.S. 452, 461 (1997)).

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In re F-P-R- is the BIA's controlling precedent interpreting 8 U.S.C. § 1158(a)(2)(B) as implemented by 8 C.F.R. § 1208.4(a)(2)(ii). The BIA's interpretation is not plainly erroneous or inconsistent with the statute or regulations; it employed a s o u n d plain meaning canon of construction. See Bonneville Int'l. Corp. v. Peters, 347 F .3 d 485, 491 (3d Cir. 2003) ("We begin the process of statutory interpretation with the p lain meaning of the statute--we must first consider the text." (internal citation omitted)); c f. Mercy Catholic Med. Ctr. v. Thompson, 380 F.3d 142, 152­53 (3d Cir. 2004) ("[A]n a g e n c y's interpretation of its own regulations is not entitled to substantial deference by a re v iew in g court where an alternative reading is compelled by the regulation's plain m ea n ing . . . ." (internal quotation marks omitted)). U n d er In re F-P-R-, Daramy's asylum application might not be barred by the 1ye a r deadline. Like the petitioner in In re F-P-R-, Daramy applied for asylum shortly af ter arriving in the United States, albeit following prior presence in the country. The IJ's a p p lic a tio n of a one-year bar is inconsistent with the BIA's current interpretation and m u st be reexamined. On remand, the BIA can consider whether Daramy's application is b a rre d under its current interpretation of 8 U.S.C. § 1158(a)(2)(B), as implemented by 8 C .F .R . § 1208.4(a)(2)(ii), and remand to the Immigration Court for further development o f the factual record if required.

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I I I. F o r the reasons set forth above, we will vacate the decision of the BIA and remand to the BIA for proceedings consistent with this opinion.

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