Kalilou Toure v. Attorney General United States
681 F. App'x 126
| 3rd Cir. | 2017Background
- Kailou Toure, a Malian national, entered the U.S. on a B1 visa in 1997, overstayed, and fathered three U.S.-citizen children in Philadelphia.
- A 2006 family-court order granted the children’s mother primary physical custody and Toure partial custody one day per week; Toure provided financial support and intermittent contact.
- In 2008 Toure conceded removability and applied for cancellation of removal under INA § 240A(b) based on hardship to his qualifying U.S.-citizen children; the contested issue was whether removal would cause "exceptional and extremely unusual hardship."
- At the IJ hearing Toure testified credibly about his relationship with the children but did not call or seek testimony from the children’s mother; he admitted he chose not to because he expected her testimony would be unfavorable.
- The IJ drew an adverse corroboration inference under INA § 240(c)(4)(B) for lack of corroboration, concluded the claimed hardship did not meet the elevated standard, and denied cancellation; the BIA affirmed without opinion.
- Toure’s motion to reopen and reconsider—seeking a subpoena for the mother’s testimony—was denied by the BIA as the evidence could have been presented at the earlier hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the IJ applied the correct legal standard for "exceptional and extremely unusual hardship" | Toure: IJ misapplied the hardship test and failed to consider all record evidence, including permanence of separation | Gov: IJ’s discretionary hardship determination is review-limited; no legal error in test application | Court: Jurisdiction exists as question of law; IJ applied correct legal standard, no reversible error |
| Whether drawing an adverse inference from failure to corroborate was improper | Toure: IJ unduly emphasized absence of mother’s testimony and failed to weigh other evidence | Gov: Adverse inference permitted by statute where corroboration not provided | Court: IJ considered record evidence and permissibly drew adverse inference under statutory rule |
| Whether the IJ/BIA should have compelled or given favorable weight to mother’s testimony | Toure: Hostile relationship made voluntary testimony unlikely; BIA should have issued subpoena or discounted adverse inference | Gov: Mother’s testimony was available and Toure strategically chose not to present it; subpoena unnecessary | Court: No error—Toure could have presented or compelled testimony earlier; BIA did not abuse discretion in denying reopening/subpoena |
| Whether permanent separation alone establishes "exceptional and extremely unusual hardship" | Toure: Permanent separation from children compels finding of requisite hardship per historic BIA decisions | Gov: Post-IIRIRA precedent requires a higher, fact-specific showing; permanence alone insufficient | Court: Permanence alone does not automatically meet the elevated standard; IJ’s fact-specific analysis consistent with precedent |
Key Cases Cited
- Pareja v. Attorney General, 615 F.3d 180 (3d Cir. 2010) (jurisdiction and review of hardship standard under INA cancellation framework)
- Abdulai v. Ashcroft, 239 F.3d 542 (3d Cir. 2001) (requirement to consider all evidence when assessing hardship)
- Chukwu v. Attorney General, 484 F.3d 185 (3d Cir. 2007) (reviewing IJ reasoning when BIA affirms without opinion)
- Mendez-Moranchel v. Ashcroft, 338 F.3d 176 (3d Cir. 2003) (limits on reviewing discretionary weight of evidence)
- Guo v. Ashcroft, 386 F.3d 556 (3d Cir. 2004) (standards for motions to reopen)
- Bejar v. Ashcroft, 324 F.3d 127 (3d Cir. 2003) (standards for motions to reopen and reconsider)
- Fong Haw Tan v. Phelan, 333 U.S. 6 (1948) (removal as a drastic measure requiring careful government presentation of issues)