488 F. App'x 135
7th Cir.2012Background
- Konte petitions for review of a BIA decision denying asylum, withholding, and CAT relief.
- Court dismisses asylum denial for lack of jurisdiction; remands to vacate removal to Senegal.
- Board and IJ treated asylum filing under time-bar but court reviews only legal questions and constitutional claims.
- Court recognizes changed-circumstances exception does not affect the legal outcome of asylum denial.
- Credibility and corroboration issues under REAL ID Act are evaluated; pre-REAL ID Act standards may apply.
- Konte’s use of a fraudulent passport is examined for its bearing on credibility and corroboration; several inconsistencies from the first asylum application are key.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction over asylum denial. | Konte: NTA admission binds entry date; time-bar should collapse. | Board/IJ avoided binding effect; eligibility remained disputed. | Jurisdiction to review asylum denial is limited; petition dismissed for asylum. |
| Whether the IJ/Board correctly applied credibility standards. | REAL ID Act did not govern pre-2005 applications; credibility should be pre-REAL ID. | REAL ID Act applies; Board correctly framed credibility. | Pre-REAL ID standard applies; Board's outcome same under post- and pre-REAL ID Act law. |
| Whether reliance on admission of a false passport invalidates credibility. | False passport used to depart Senegal; not to escape persecution; may not bear on credibility. | Use of false documents can implicate credibility. | Court discusses nuanced impact; not dispositive; still supports denial of relief. |
| Whether the Board correctly required corroboration under REAL ID Act. | Corroboration not required where testimony credible; pre-REAL ID standards apply. | CORROBORATION required under REAL ID Act; reasonable expectation of corroboration. | REAL ID Act corroboration standard applied; substantial evidence supports denial. |
| Whether Senegal was properly designated as first country of removal. | Failure to raise this argument preserved it only as a footnote; forfeited. | Not contested; Board’s designation stands. | Forfeited; court does not disturb designation. |
Key Cases Cited
- Abraham v. Holder, 647 F.3d 626 (7th Cir. 2011) (one-year asylum filing deadline; statutory exceptions; review of legal questions allowed)
- Hakopian v. Mukasey, 551 F.3d 843 (9th Cir. 2008) (admission in NTA may bind if uncontested; contingent on government actions)
- Cortez-Pineda v. Holder, 610 F.3d 1118 (9th Cir. 2010) (admissions may not bind if later contested; date of entry not conclusively established)
- Ikama-Obambi v. Gonzales, 470 F.3d 720 (7th Cir. 2006) (pre-REAL ID credibility standard; explicit credibility findings preferred but implicit findings can suffice)
- Dawoud v. Gonzales, 424 F.3d 608 (7th Cir. 2005) (pre-REAL ID Act credibility; lack of corroboration not required for credible applicants)
- Rodriguez Galicia v. Gonzales, 422 F.3d 529 (7th Cir. 2005) (REAL ID Act corroboration standard applies across post/post periods)
- Long-Gang Lin v. Holder, 630 F.3d 536 (7th Cir. 2010) (material inconsistencies may support adverse credibility finding)