Aboubecrine N'diom v. Alberto R. Gonzales, Attorney General of the United States

(6th Jackson, Cir. F.3d simply v. we will purposes, tencing Guideline 2005) appellate “we as an (reaffirming that that is an element into an offense not read of the the articulation conviction, court must still have nor statute of prior not the sen court reached defendant, the district found reasons nor by the to admitted United States ultimately imposed”); tence jury. a doubt a reasonable beyond Cir.2005) Webb, 373, 383 403 F.3d prior convic- the defendant’s Neither (“Post-Booker dis expect to we continue intent contained element tions explana a judges provide reasoned trict current sen- allow his that would distribute in order sentencing decisions tion for their § 4B1.1. under enhanced tence to be review.”). appellate facilitate III. conclusion, hold that convic we Code former Ohio Revised

tions under 2925.03(6) “con qualify do not

§ under U.S.S.G. offenses”

trolled substance by con court erred

§ 4B1.1. The district therefore VA We

cluding otherwise. RE sentence and Montanez’s CATE N’DIOM, Petitioner- Aboubecrine remand, the resentencing. On MAND Appellant, suf “impose must sentence district court necessary, ficient, than greater of 18 U.S.C. comply purposes” with the GONZALES, Attorney R. Alberto 3553(a). v. Rich § also States See United States, of the United General ardson, Cir. 553-54 Respondent-Appellee. 2006) (“We obligation emphasize No. 04-3742. in each case to communicate district court imposing spe clearly its rationale for Appeals, Court of United States raises defendant cific sentence. Where Sixth Circuit. seeking a lower

particular argument Feb. 2006. Argued: sentence, must reflect both the record 24, 2006. and Filed: March Decided judge considered the defen the district judge and that ex argument dant’s reject [accepting or] the basis for

plained Foreman, it.”); at 644 n.

(“It that a district court’s noting worth is a ‘reasonable’ sen

job impose is not to Rather, a court’s mandate

tence. district sufficient, but not impose ‘a sentence necessary, comply with

greater than 3553(a)(2). Reason of section

purposes’ standard of re appellate is the

ableness a district court judging whether

view task.”); States accomplished

has its United charged only convictions indictment and of Montanez's to turn to the documents, permissible possessory the conclusion offenses. other in each the same. The indictment would be

495 August 29, Board’s decision affirms the 2003, decision of Immigration Judge finding hearing at the (J.A. 16-27) to be “not credible” based entirely on the fact that N’Diom’stestimo- ny Judge before the much more de- specific tailed and toas the basis for his persecution fear of than the information he gave Asylum Officer at the time he (See initially applied asylum. J.A. at 165-66, 197.) pertinent statutory basis and stan- dard of review for our remand action in Ventura, this case is set out INS v. 537 12, 13, 16, 353, U.S. 123 S.Ct. 154 L.Ed.2d curiam): 272 (per Federal Attorney statutes authorize the General, discretion, grant asy- lum to an “per- alien who demonstrates secution or a well-founded fear of perse- cution on account of ... political [a] opinion,” they require Attorney deportation General to withhold where the alien’s “life or freedom would be Schreiber, BRIEF: ON Svetlana J. Immigra- threatened” for that reason. Svetlana, Associates, Schrieber & Cleve- Act, Nationality tion land, Ohio, Bryce, for Petitioner. Rita 101(a)(42)(A),208(a), 243(h), §§ 66 Stat. Justice, Cleveland, Department U.S. 166, amended, 8 U.S.C. Ohio, Respondent. 1253(h)(1) (1994 1101(a)(42), 1158(a), §§ V). Supp. ed. and MERRITT, MARTIN, Before: GILMAN, Judges. Circuit disputes legal princi No one the basic MERRITT, J., opinion delivered the ples govern remand. Within broad - MARTIN, 502), (pp.

the court. J. 500 agency limits the law entrusts the delivered a separate concurring opinion. eligibility make the basic deci - GILMAN, 505), (pp. J. 502 delivered a question. E.g., sion here in 8 U.S.C. separate dissenting opinion. (1994 1253(h)(1) 1158(a); § § 8 U.S.C. ed.); Elias-Zacarias, 481, supra, at OPINION 812, 38; 478, U.S. 112 S.Ct. 117 L.Ed.2d MERRITT, Judge. Circuit Aguirre-Aguirre, INS v. U.S. (1999). In this L.Ed.2d 590 petitioner case of the 119 S.Ct. (2002). N’Diom, 4, 2004, May § we review the deci- 3.1 In such See also 8 CFR “judicial can Immigration Appeals judgment sion of the Board of circumstances a Department of the U.S. of Justice found at not be made to do service for an admin (“J.A.”) Appendix judgment.” Chenery Joint 8-9. As so istrative SEC us, many coming Corp., such cases now 63 S.Ct. before U.S. continued (1943). reports “international “appellate Nor can an L.Ed. 626 involuntary servi- slavery the domain in the form upon ... intrude court 151-52.) (J.A. exclusively entrust Press Congress has persisted.” which tude A Ibid. agency.” Department an administrative coun- ed to after the State reports em appeals generally military “is not court of that a try report in 2004 state inquiry novo to conduct de powered 3, 2005. See Wik- coup August occurred to being reviewed and into the matter Mauritania, http://en.wikipedia. at ipedia, on such its own conclusions based (last 17, reach visited Jan. org/wiki/Mauritania Light Power & Co. inquiry.” an Florida State, 2006); Background Dep’t of U.S. Lorion, 744, 729, 470 105 S.Ct. U.S. Mauritania, http://www.state.gov/ Note: (1985). Rather, 1598, 84 L.Ed.2d (last visit- govtnote 5467.htm# r/pa/ei/bgn/ course, in rare cir except proper “the 2006). have How those events ed Jan. cumstances, agency to the is to remand conditions remains country affected now investigation explana for additional unclear. Chenery Corp., tion.” Ibid. SEC Cf. Immigration Judge ruled At the trial the 194, 196, 67 S.Ct. 332 U.S. and testi- documents witness inadmissible (1947) (describing the rea L.Ed. 1995 they by N’Diom because mony proffered remand). sons days ten advance were not submitted following we are procedure That is the rules, Judge ruled local and so the under this case. that, depended upon ... “Thus the 18.) (J.A. Judge testimony.” The his I. as follows the summarized citizen of the N’Diom is a native and “discrepancies” to six led pointing Republic Islamic of Maurita- West African reject testimony. No “dis- to nia, mil- country approximately three were found in his recital of crepancies” minority group, people. lion His ethnic he received. All of the so-called torture “Fulani,” African comes the black “discrepancies” simply are omissions part country, of the and Sen- southeastern lies in particular detail. None are state egal Department’s to the south. The State to or opposite of a statement the sense “Country Rights on Human Prac- Reports prior inconsistent with a statement: (J.A. at 151— February tices” of Discrepancy respondent testi- 64), governments— states that “successive Fulani, native and fied that he was a military pursued both civil and vari- —have ” Mauritania, who went citizen policies of ‘Arabization’ that involve ous at the Libya to obtain an education discrimination, imprisonment and torture of Mauri- expense government like the of members of ethnic minorities that, tania. He testified when Afri- slavery Fulani and of black also began to de- government Mauritanian (J.A. persists cans still some areas. Fulani and other black citizens port 163.) Report The same states Senegal and from Mauritania “human re- government’s rights record Mali, and respondent protested killings by “unlawful securi- poor,” mained organiza- may have even formed security ty reported, “the forces” respondent activities of the force, tion. The reportedly forces used excessive Maurita- came to the attention of the beat, detainees,” “re- or otherwise abused Libya who sum- nian ambassador speech, press stricted freedom embassy and told moned him to the ... assembly religion,” discriminated The re- stop him to these activities. against groups,” ethnic “southern-based Discrepancy Shortly thereafter, spondent respondent refused. testi- Libya fied that five government jail took the re- he was months in jail then moved from the spondent custody. person- into at the Fourth District jail of Nouakchott to a Exhibit al statement found at Jail, called referring Hundred Meter respondent being psycho- described typical the size of a cell apparently. logically physically tortured testified that Libyan government pur- Hundred Jail particularly Meter was a respon- hatred of Arabs. The ported jail bad and that this was a situation today Libyan testified dent where he was to live basical- only psychologically tor- government ly underground and he was either in him, tured but this is the in a first bright darkness or lights had shown discrepancies number which the of upon him. respondent The testified during will on Court comment the that required eye glasses he is to wear of this course decision. that, as a result of but he does not respondent The testified that he have a a physician letter from explain- under compul- returned Mauritania injuries how the which he said he custody upon and was taken into sion has [Discrep- suffered were caused. arriving airport at the and was then ancy is, 2.] respondent That the has a police taken to station. The respon- presented any objective not evidence slapped by testified that was dent he concerning necessity the for him to govern- of the Mauritanian officers glasses. wear being ment and accused of a member Discrepancy application 3 The FLAM, and that he wrote “lots of of asylum the respondent states that was things against in the Fulani the law released in March 1993 and then is language.” The respondent testified silent until that respondent a fear the when he what it that asked was that following up the break of the UFD that he wrote he was told he would Political Party This is to [sic]. be enough respondent learn soon and the testimony contrasted with the he of- that testified over the course of time fered today which was that after he tortured, including having he was custody was released from in he 1993 applied genital parts electrodes to his in was held a kind of house arrest being put jaguar and also into the between 1993 and and 1998. which position, understands Court [Discrepancy respondent 3] The testi- previous involve basical- cases to living fied that in he was the home of ly trussing being holding a human his has cousin who submitted docu- upside down. in support application, ments his see Exhibits 5-H and 5-1. The respondent testified that he Discrepancy songs, The poetry, plays respondent wrote Fu- testi- lani, required fied report that he was they published. but were not He police every in Nouakchott plays, station songs, poet- said these Monday and he was not allowed to ry were known to the authorities in This city. appear leave the does not and, request at the Mauritania in his 1-589. Court, he recited a few lines of one song Government, Unity Discrepancy called of Mauritania in cross-examination, importance he of all which lauded the introduced notes of asylum unity. Mauritanian citizens act officer Exhibit 8 and of the United Exhibit 9. before the tribunals Refer at told the Assessment to Government, officer the Court cannot States Apparently, before report, that the has offered respondent conclude being he told about anything testimony today. about say did credible arrest he testified about second which 25-26.) (J.A. N’Diom reason that today. or any unable to introduce witness was Discrepancy respondent testi- corroborating documentary evidence his officers that on fied October lawyer immigration was picked came to house comply trial did not at the understand today that respondent up. He stated requiring ad- ten-day the local rule wife, who was this so shocked his then Judge commented vance submission. The ultimately died and pregnant, she times on violations several counsel’s 1-589 nor appear this does not rules, his in conduct- local ineffectiveness officer. related to the N’Diom, and the incom- ing examination Indeed, notes of handwritten of his for the petence preparing office officer, page indicate trial. any- if officer asked the him after his thing happened had II. in re- respondent release 1993. The re believe this needs to be We nothing hap- plied to the officer that in a manded for further consideration full except was pened that he hearing fair N’Diom with the counsel by harassed report and that he felt com appeal has now obtained on or other being required report on such a light counsel. In of the recent petent regular basis. condi coup, rights the earlier 2004 human 18-21.) added.) (J.A. The (Emphasis Mauritania, reported for and the hos tions conclusory in

Judge ruling summarized his security government tile treatment fashion, as follows: minority, forces of members of the Fulani no recapitulate, To contains the 1-589 necessary. retrial N’Diom’s claim testimony about arrest in 1998 or an an is no in the record before There indication says earlier house The 1-589 arrest. Judge or the Immigration us re- nothing being about respondent cognizance took the dire human Board during quired report every Monday in rights situation or the mis Mauritania say any- his earlier arrest nor does it treatment of the black African Fulani fol- thing dying about his wife of shock government. country reports If the lowing arrest of the in respondent torture, explain slavery, and other month. being jailed 1998 and his for one rights unimportant human violations are or case, like

irrelevant to this we would no officer has reason explanation of the have some Board’s incomplete report be his or [sic]. See, subject. e.g., views on this Mostafa to Re- Court finds the Assessment 622, 625-26 Cir. rely fer is a and does reliable document 2005) (remanding opin the Board’s where it, making deter- negative absolutely ion “contains no discussion against respondent. minations country in Iran” and “never conditions reports Department Because of the nature of this the State mention[s]” confused record, record); especially it relates to the included in the Zubeda v. Ash as Cir.2003) (3d croft, has 333 F.3d 477-78 various stories that the INS, (remanding opinion where the Board’s “to chez v. 164 F.3d Cir. 1999) ... tally ignores reports government (noting that the BIA is required to agencies rights organizations and human “address in a reasoned manner expla wide, appear country detail what to be nations that applicant] [the offers for these systematic gang rape, incidents of mutila inconsistencies”). perceived tion, murder”); and mass Kamalthas v. addition, the record discloses that INS, (9th Cir.2001) 251 F.3d N’Diom’s counsel was clearly lacking (remanding where “nowhere in opinion its competence diligence, as the Immigra- did the BIA consider the documented (J.A. tion Judge noted several times. country conditions in Sri Lanka which cor 23-24.) result, As a witness widespread practice roborate the of tor documentary evidence purporting males”); against ture Tamil Mansour v. explain why N’Diom’s alleged fear of per- (7th Cir.2000) 908-09 secution genuine legitimate (remanding where the opinion Board’s excluded. Had the Board considered this failed to discuss a Department State re evidence relevant to his fear persecution port detailing country Iraq, conditions in Mauritania, might it adjudicated have and observing that “had the BIA ad differently. N’Diom’s claim Report might dressed the have viewed may N’Diom may not have a merito- applicant’s] differently”). [the torture claim rious claim asylum. cannot, We how- Judge and the Immigra- Board of ever, conduct a meaningful review where tion Appeals did not find much of N’Diom’s the Board does not sufficiently articulate testimony lacking credibility. In broken reasoning its nor evaluate the applicant’s English explained N’Diom that a transla- claim “on the record considered tor original asylum wrote his petition and Elias-Zacarias, whole.” INS v. 502 U.S. had left out details and that the 478, 481, 812, 112 S.Ct. 117 L.Ed.2d 38 officer had “keep cautioned (1992). We understand that immigration short.” Immigration Neither the Judge judges officials and are pressed by hard nor explains why they the Board disbelieve sympathize. overload. We Federal explanation this for the earlier omission of appellate judges are confronted covering details his wife’s death and the problem. Nevertheless, same policy persecution upon he suffered his arrival of our law is not to deport aliens back Mauritania after period his initial justified who have a fear of returning to See, of imprisonment and torture. e.g., their country. native The combination of Gonzales, Zheng v. 154 241 Fed.Appx. (1) coup a in Mauritania uncertainty and (2d Cir.2005) (unpublished)" (remanding (2) conditions, present about incompetent where Immigration Judge “did not counsel, questionable rejection of specifically applicant’s prof- address” testimony testimony fered explanations for inconsistencies nor — seems plausible and consistent state his with known finding reasons for the explana- facts about tions to be “not conditions Mauritania— reasonable” and “not ra- tional”); leads us to vacate the Ashcroft, Guo v. decision of the F.3d (9th Cir.2004) (“An Board Immigration Appeals adverse credibili- and re- ty finding is not mand for question based on evi- the case retrial of the substantial eligibility asylum. dence when BIA of N’Diom’s If ‘[t]he [or did not IJ] applicant’s] comment on explanation, [an Board still believes after retrial nor suggest any reason that it lying, found his N’Diom is a more detailed explana- credible’.”); explanation not Campos-San- tion disbelieving of its reasons for the tes- sea-washed, gates Here at our sunset necessary. Does the adminis timony is woman a mighty shall stand disbelieve his agency trative torch, imprisoned is the whose Lybia, testi concerning his arrest flame Mother and her name Ex- lightning, mony upon returning to Mauri of torture iles. From her beacon-hand Glows tania, just imminent arrest before and his welcome; her eyes mild world-wide so, country? If are he left the what facts air-bridged harbor that command The See, findings e.g., on? contrary its based lands, frame, “Keep, twin ancient cities Sylla Cir. v. she your pomp!” cries with si- storied 2004) (noting that an adverse tired, lips. your your me lent “Give supported by specific finding “must be poor, yearning huddled masses Your reasons”); 299 F.3d Gao free, your breathe The ivretched refuse of (3d Cir.2002) (Adverse credibility find these, homeless, shore, teeming Send ings by specific cogent “supported must be me, my tempest-tost lamp beside lift must reasons. The reasons be substantial golden door!” nexus the findi legitimate bear a way long have come a from these We ng.”).1 Instead, in the halls of our sentiments. the decision of Board of Accordingly, immigration today, courts the sentiments Appeals is vacated and the Immigration like all too often are more “don’t let the hereby case is remanded the Board you your way door hit out.” in light opin- of this further consideration conscientious, many There are no doubt ion. dedicated, thorough immigration country. Unfortunately, courts across the MARTIN, Jr., F. Circuit BOYCE their hard work is overshadowed Judge, concurring. significantly increasing adju- rate which reason, logic, lacking dication and effort Liberty, At the base of Statue of is immigration reaching from other courts by Emma Lazarus is en- poem wonderful e.g., the federal circuits. See Benslimane graved It is called The New on tablet. Gonzales, 829-30 repeating: Colossus and is worth Cir.2005) (“This judicial between tension giant fame, Not like the brazen Greek adjudicators due administrative judicial limbs nation’s conquering hostility immigra- with astride to the from land; misconception policies tion or to a of the land to appear dissenting colleague country support 1. the does not under- conditions Our appeals reviewing problems stand that a court of the N'Diom's claim. These three to- may simply gether BIA an reverse the for the remand. The create need definitely because it concludes that the BIA may may dissent be correct or not that each alternatively may wrong is for or remand problem standing alone and in from isolation we remand, further consideration when that the find may justify the not a but tak- others proceedings leave us in sub- administrative together all these factors we three of be- stantial doubt as the correctness of the necessary lieve reconsideration is in order to proceedings justice as a whole and the be that a serious mistake is not confident Ventura, supra, result. See INS v. and the taking place rigid The law is not as here. in Section II. cases cited above dissenting our isolated the real world as colleague addition, lead us to believe. Adminis- would dissenting opinion the takes requires (1) trative a hard look at all of review agency's issue with our view of the conclu- (2) together, simply the a nar- credibility findings, factors taken sion the based counsel, though row each as incompetence of focus that treats it clear the only agency intelligently problem the the case. failure to discuss of judicial problems immigration standard of review of ad proper courts. Like- wise, been, It fact reviewing ministrative decisions. is due to the courts have in my adjudication opinion, of these at the unduly that the cases tolerant of ineffective Unfortunately, level has fallen below the counsel. administrative the realities of justice.”); legal prevent minimum standards of the situation certain checks on Gonzales, 229796, *5 n. in immigration proceedings. Rexha v. 2006 WL counsel It is (6th Cir.2006) (noting quite deported petitioner “horror sto difficult for a persist nasty, arrogant, attorney malpractice ries of and conde sue his or to file courts”); scending immigration complaints immigration Metko v. with the courts. (6th Cir.2005) Gonzales, And, Fed.Appx. politically seekers are power- less, (Martin, J., voiceless, concurring) (“Although I am and often at mercy sympathetic issue, with the difficulties faced counsel and the courts. The there- caseload, fore, immigration requires courts and its it self-policing. some The im- a responsible providing migration should be com bar would be well served plete asy strongly considering and accurate determination on promul- whether forget impact gate i.e., lum claims. Let us not certain standards of conduct — hearings of these on the lives of the indi ABA-like Guidelines for the Performance viduals involved. The least we can in Immigration Proceedings— ask of Counsel immigration court provide thor that could assist counsel in representing analysis ough complete immigration for its deter help clients and also beyond identifying evaluating mination minor incon courts in performance. counsel’s sistencies, differences, language Although immigration cultural courts them- barriers.”); Gonzales, problems, Mece v. selves have serious would be a (6th Cir.2005) (“The 562, 572 problem Board’s fail disservice to claim that the lies ure to find clear error in immigration only immigration with the courts. judge’s adverse determination Fortunately, regard to administra- us, say, leaves we are frank to more than a reform, Attorney tive General of the puzzled.”); Liptak, little Adam Courts recently acknowledged United States Judges’ Handling Criticize Asylum problem in immigration courts when Cases, TIMES, 26, 2005, N.Y. Dec. at A1.1 immigration he issued memorandum to problem only judges lies not with the ad- and to the members of the Board of courts, however, ministrative Immigration Appeals but also with and also ordered the petitioners’ own Deputy Attorney counsel. This case General and Associate demonstrates as much. Attorney develop compre- Ineffective assis- General “to tance of in immigration pro- immigration counsel—or hensive review of the courts.” ceedings, process gets Attorney due much The General’s memorandum ac- law— But, more attention in criminal knowledges cases. that “there are some [immi- inadequacy gration aptly and carelessness of some coun- whose conduct can courts] be sel has allowed or facilitated some of the described as or even abusive intemperate Peterson, day 1. See also Lisa Getter & Jonathan Board members worked a 9 hour without Assailed, restroom, lunch, Speedier Deportation Rulings any Rate breaks for the or other- of TIMES, 5, 2003, wise, approximately L.A. Jan. available at 2003 each case received ten despite WL 24211941. The article discusses the minutes of attention the fact that ordi- speedy Immigra- narily, immigration produce rate at which the Board of cases records in Appeals many pages, tion decides cases and describes how the of and of those hundreds that seeking allege they two Board members each decided more than relief that will be tortured fifty day. deported. cases on one The means that if the or killed if testimony for explanations or his improve.” N’Diom’s and whose work must Whatev- Benslimane, opinion, F.3d Its impetus, the see the various inconsistencies. er (“All that however, that is clear is it cannot nor follows at 830 neither articulates immigration the au- in the interest of reviewing be an ad- the standard proper thorities, judicia- the the federal taxpayer, Adverse credibility verse determination. with the citizens concerned effective ry, or of findings credibility determinations are immigration of the nation’s enforcement the def- fact under that must be reviewed routinely orders to be laws removal standard. erential “substantial evidence” courts, power and the nullified the 2& n. Yu v. Department in the of of correction lies (6th. Cir.2004). standard, we Under this prosecutes re- Security, Homeland which are factual determi- not to reverse IJ’s cases, Department of Jus- moval and BIA unless we nation as affirmed tice, adjudicates in which them its Immi- only supports find the evidence not “that gration Immigration Court and Board conclusion, it.” contrary compels but Attorney General’s remind- Appeals”), Ashcroft, 380 Marku v. those is a much one. er to courts needed Cir.2004) ma- (emphasis original). The credit, Attorney To his General stated: jority from this apparently departed has you always to mind the urge “I bear standard, remanding instead because cases and lives significance your adjudicate[ BIA ... “might ] who they affect. To the aliens stand be- if it various differently” emphasizes you you, fore are the face American factors considers rele- majority justice. Not all will be entitled to the vant. they But I insist that each be relief seek. courtesy respect. Any- treated unpersuasive I find the assertion also thing less would demean the office that my colleagues that the “Board [did] you you Department hold and the which sufficiently reasoning articulate nor its step right serve.” This is a di- applicant’s claim on the rec- evaluate the A rection. nation so concerned with free- Maj. Op. ord as a considered whole.” liberty ought dom and to accord a little omitted). (citation quotation marks respect dignity more those who The opposite record reflects that from us that which we claim to so seek be fact, majority opinion true. itself proud to offer. cites the record where IJ instances observations, I these concur. With as form- discrepancies referred to various The IJ’s the basis for decision. GILMAN, RONALD LEE Circuit incom- only decision was based not on the Judge, dissenting. pleteness application, I Because believe substantial evi- contends, majority also on the opinion supports credibility dence adverse IJ’s fact inconsis- that N’Diom’s determination, I unper- and because am attached personal tent with his statement suaded N’Diom’s ineffective-assis- the application. These inconsistencies claim entitles him to a tance-of-counsel the IJ that N’Diom had embel- convinced remand, respectfully dissent. to the story, ultimately lished his led IJ’s adverse determination. I. ADVERSE CREDIBILITY DETERMINATION majority opinion further criticizes majority relying opposed that a the IJ on contends remand is for omissions -495 necessary Maj. Op. the BIA failed to credit to direct contradictions. because (“All ‘discrepancies’ “major of the so-called inconsistencies]” the Shkabari simply particular omissions to a are state court because Shkabari’s status as a leader None are lies in sense of a detail. the Party, of the Democratic as well as fear his opposite statement to inconsistent hospital, “greatly the local his enhanced statement.”). My colleagues prior a over- persecution.” claim of Id. at 329. however, look, major a con- discrepancy Shkabari, Here, as in alleged testi- cerning N’Diom’s torture in allegations of monial that facts were omitted in N’Diom’s N’Diom, in Libya. claiming per- after his asylum believed, if application, am- would statement that he and physically sonal was plify persecution his claim. ex- The last in psychologically Libya, tortured testified ample persecution reported in N’Diom’s subjected before IJ that he was to asylum or in application notes of only. a psychological torture Such dis- Asylum in Officer occurred 1993. N’Diom certainly crepancy goes to the heart of IJ, however, testified before the he that claim, Sylla N’Diom’s see had been under house arrest to from 1993 Cir.2004), considering that 1997, that he endured a subsequent arrest was relying N’Diom on this evidence of in that and his wife had as a died persecu- torture demonstrate past his result of from his shock 1998 arrest. Prior necessary prerequisite obtaining tion—a noted, testimony, to N’Diom’s as the IJ his asylum. application and other portrayed materials Moreover, purported this distinction be person as “a who had a existed direct tween contradictions the one perfectly normal manner in his country and hand omissions on the other is not years.” the last ten by our supported caselaw. See Shkabari Gonzales, Cir. during These additional claims made 2005) (holding may form “omissions N’Diom’s led the IJ to conclude of an adverse determi the basis that N’Diom had “embellished his testimo- nation, provided substantially they are ny” “effectively story” created new claim”) (citation asylum related hearing. for the The IJ’s concern omitted). Shkabari, quotation marks In persecution] grew “tale [of N’Diom’s petitioner applied the Albanian telling” warning heeds Shkabari leadership basis that on the his exaggerations that such re- are often the Party allegedly Democratic of Albania led sult of a to enhance an immigrant’s desire country. persecution his native Shkabari, claim. See 427 F.3d at 329. court affirmed an credi Shkabari adverse justified believe that the IJ was in deter- bility determination on the of two basis allega- mining that N’Diom’s slew of new (1) omissions: Shkabari testified at his hearing, none of tions at the which were hearing before the IJ that he was the record, supported by prior evidence in the chairman of the Albanian Par Democratic credibility. lack of indicated his ty, yet asylum application failed to majority’s Contrary to assertion role, leadership Shkabari mention the BIA the IJ and failed to consider hearing claimed that he was afraid explanations for these inconsis- go hospital because the rival tencies, a of the record party it, review indicates political yet controlled he stated fact, IJ otherwise. the decision of the application in his that was treat he acknowledges N’Diom’s claim that he hospital police ed at local after “keep it Asylum him with Officer to scalding burned water. Id. told short,” goes explain These omissions considered the decision on to 329-30. in Mau- of current conditions light tions in responsible for still held why N’Diom was Fulanis that black ritania and determined pinpointed The IJ the inconsistencies. being persecuted to longer no specifically were Asylum Officer fact that Second, and by N’Diom. claimed hap had extent anything whether asked N’Diom substan- importantly, the deferential jail from in more his release pened to him after than requires more tial-evidence standard disregarded had that N’Diom an adverse to disturb by plausibility answer mere for elaboration opportunity this Because credibility determination. though he later negative —even a con- “compel” not death, before us does as well as record that his wife’s testified Marku, result, arrest, trary in 1998. see occurred contemporaneous affirm the adverse credi- 1201 would therefore F.3d Guo Cf. Cir.2004) (“An credibility bility determination. adverse evi finding is not based on substantial II. INEFFECTIVE- N’DIOM’S did not IJ] BIA [or dence where [t]he ASSISTANCE-OF-COUNSEL explanation applicant’s] [an comment on CLAIM that it found his suggest any nor reason credible.”) (emphasis add explanation not N’Diom’s majority opinion blames The (citation ed) (alterations in original) counsel, discrepancies on his numerous omitted). quotation marks “clear- majority characterizes as whom the diligence.” lacking competence ly great majority opinion places also Maj. properly at 499. If counsel had Op. is no on the fact that emphasis “[t]here evidence, majority presented certain us that the indication in the record before reasons, adjudicated have “might the BIA cog- the Board took Immigration Judge or Maj. differently.” Op. N’Diom’s claim rights human situation nizance of the dire added.) majority (Emphasis 499. of the or the mistreatment Mauritania however, acknowledge that fails to opinion, government.” black African Fulani reject BIA consider and only not did the Maj. decision to remand is Op. at 498. Its counsel, complaints about his oversight partly purported based on this as- that N’Diom’s claim of ineffective order, also BIA. In the BIA’s by the IJ and the properly before sistance of counsel is however, explicitly considered the rele- us. country report vant and concluded: testimony respondent’s

Because the proceeding is civil deportation Because associations cannot be political to his criminal, N’Diom’s ineffective- rather than true and because the coun- accepted as claim is reviewed assistance-of-counsel shows try conditions evidence of record to the Due Process Clause pursuant government no the Mauritanian Fifth Amendment. Denko Fulanis in longer expels or harms black Cir.2003). Ineffective torture, way that rises to the level context will of counsel this assistance ineligible relief]. [for “only if due-process violation constitute fundamentally un- proceeding was so majority assertion prevented was testimony was fair that the alien rejection BIA’s of N’Diom’s (cita- reasonably his case.” Id. presenting “questionable” because his omitted). marks More- quotation facts tion and “plausible and consistent with known over, of N’Diom’sineffective- there- consideration about conditions in Mauritania” is First, by this court is claim counts. assistance-of-counsel fore incorrect on two only properly pre- if allega- N’Diom actually appropriate BIA considered N’Diom’s his claim to the BIA. the introduction of this the merits of evidence would sented Ramani v. 378 F.3d 560 have altered the outcome of the case. See See Cir.2004). Gonzales, Sako 434 F.3d Cir.2006) (holding that the alien “must es- a claim of seeking An alien to raise that, tablish but for the ineffective assis- in immi- assistance of counsel ineffective counsel, tance of he would have been enti- (1) proceedings set gration residing tled to continue in the United (2) affidavit, relevant facts an forth the States”); see also Huicochea-Gomez allegations pro- inform counsel (6th Cir.2001) 237 F.3d an to re- opportunity vide counsel with (holding that the alien “carries the burden spond, disciplinary file a formal establishing assistance ineffective explain why or one has not been complaint him”). prejudiced counsel This court Lozada, 19 I. & N. Dec. filed. Matter of emphasized policy has also that “[s]ound (BIA 1988); Hamid v. see also support compliance reasons with the Loza- (6th Cir.2003) 465, 469 Ashcroft, 336 F.3d requirements,” da one of which is to “dis- claim (refusing to consider such a where Hamid, courage] allegations.” baseless requirements the Lozada were not satis- 336 F.3d at 469. fied). order of the BIA makes clear his properly that N’Diom failed to raise majority opinion, by making no ineffective-assistance-of-counsel claim be- accepting mention of Lozada and at face satisfy cause he did not the conditions value N’Diom’s assertion that the excluded Lozada, prohibits the failure of which us proven evidence would have the merits of Ramani, considering his claim. See case, arguably requires his remand Moreover, at 560. even if 378 F.3d every immigrant case in which claims claim, properly N’Diom had raised the attorney that his was ineffective. Such a opined BIA that it would have considered position only contrary is not to the law of meritless because he was argument court, Hamid, this see prejudice unable to show from his coun- swamp already would also overbur- (“We oversight. Op. BIA further sel’s dened BIA with needless remands. that the has demonstrated note neither the content of the testimonial and III. CONCLUSION

documentary sought evidence he to have admitted, nor that evidence would how unpersuaded Because I am that the rec- case.”). changed have the outcome of this compels contrary ord conclusion as to majority opinion does not discuss determination, the adverse Lozada, procedural requirements of I majority opinion because believe that the improperly complaints considers improperly considers N’Diom’s ineffective- adjudicating this against his counsel claim, respectfully assistance-of-counsel case, and assumes that the mistakes made dissent. petition. fatal to N’Diom’s counsel were (“The Maj. reason that N’Diom Op. any

was unable to introduce witness

documentary corroborating his evidence immigration lawyer that his comply

at the trial did not understand or [rules]”). noted, BIA

with the local As the

however, N’Diom was unable show

Case Details

Case Name: Aboubecrine N'diom v. Alberto R. Gonzales, Attorney General of the United States

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 24, 2006

Citation: 442 F.3d 494

Docket Number: 04-3742

Court Abbreviation: 6th Cir.