*1 chapter under either renders the the District Court provision dismissing Com- ambiguous meaning or alters its to phrase complaint mittee’s for lack of standing. suits. allow courts to authorize derivative clear, § language 544 is a
Because totally un- pre-Code practice review of necessary. regard The same is true with
to public policy concerns discussed majority. light import of the clear §of 544 and language because the language result that commands is not ab- surd, need Aysar ABDULRAHMAN, explore public there is no to Petitioner policy implications standing. derivative point. argument, final At oral One ASHCROFT, Attorney John General of parties explored possi-
Court and the other States, Respondent the United may bilities which be available to creditors’ (1) committees, seeking appoint- such as: No. 02-2513. pursue ment of a or an examiner trustee to transfers; (2) allegedly request- fraudulent United States Court of Appeals, ing bankruptcy compelling a court order Third Circuit. act; possession the debtor an seeking lifting stay order the automatic Argued Feb. 2003. a pursue
to allow creditors’ committee to Opinion May filed: fraudulent transfer action state court on any condition that assets recovered are brought back to the estate. We are not case, upon,
called in this to decide the viability of these or other possibilities.
However, many possibilities raised holding
demonstrate that that creditors’ committees lack standing derivative § pursue not necessarily actions will potentially result forfeiture of valuable causes of action.
V. Conclusion The Bankruptcy Code does not autho- bankruptcy grant rize courts to derivative standing to creditors’ committees and the
Supreme rejected Court has the notion any policy- the federal courts have making construing role in statutory clear If it is a
language. good idea for creditors’ standing, committees have is a courts, Congress, matter not the Underwriters, decide. 530 U.S. Hartford 13-14, at forego- S.Ct. 1942. For the reasons, ing judgment I would affirm the *4 York,
Kai (Argued), W. De New Graaf NY, for Petitioner. MeCallum,
Robert D. Assistant Attor- General, ney Department United States Division, Drucker, Justice Civil Alison R. Counsel, Litigation Senior Office Immi- (Ar- gration Litigation, Igoe Alison Marie gued), Immigration Litigation, Office of DC, Washington, for Respondent. BECKER, Before: Chief Circuit * ** SCIRICA, Judge Judge Circuit
SHADUR,*** Judge. District
* *** Judge Shadur, completed Becker his term as Chief Honorable Milton I. United States Judge May on 2003. Judge District Court for the Northern District ** Illinois, by designation. sitting Judge began Judge Scirica his term as Chief 4,May on ineligible OF THE COURT for asylum
OPINION
constitutes a “final
order of removal” that may
subject
SHADUR,
Judge.
District
judicial
1252(a)(1).
review under Section
(“Abdulrahman”)
Aysar Abdulrahman
But where as here the Board has deferred
a married citizen and native of the Sudan
to the IJ’s decision rather than rendering
August
who entered the
United States
must,
own opinion,
its
“a reviewing court
23, 2001 without valid documents and re-
as a
logic,
matter of
review the IJ’s deci
asylum.
quested political
Although
sion to assess whether the BIA’s decision
Immigration and Naturalization Service
(id.
2;
appropriate”
defer was
at 549 n.
(“INS”) determined that Abdulrahman had
Chen Yun
v. Ashcroft,
Gao
persecution,
a credible fear of
it initiated
(3d Cir.2002)).
That review is ex
charging
removal proceedings,
Abdulrah-
tremely
in scope.
narrow
Because Con
1182(a)(7)(A)(i)(l)1
§
man under 8 U.S.C.
gress
delegated
has
authority over the im
being
with
inadmissible to the United
migration
General,
laws to
Attorney
referring
him to an immigra-
States
inwho
turn
that authority
vested
(“D”)
judge
hearing.
tion
for a
Abdulrah-
Board, principles of Chevron deference ap
responded by filing
man
an application for
(Chen
ply
immigration
context
Yun
*5
political asylum
withholding
and
of remov-
Gao,
271,
299 F.3d at
citing INS v.
requesting
al and
relief under the Conven-
415, 424,
Aguirre-Aguirre, 526 U.S.
119
Against
tion
Torture.
1439,
(1999)).
S.Ct.
Abdille F.3d 482 in an dark tained isolated for two room Cir.2001)). required While aliens are Although given weeks. he was food and a that persecution likely to show is “more cup small of twice day, water a he was not,” they subjective than must “a show assaulted, verbally daily beaten with sticks persecution of supported fear and and whips questioned about his Stu- objective persecution evidence that ais dent agents Union activities. Before the possibility” (Fengchu Chang reasonable him, they agree him released forced to INS, (3d Cir.1997)). writing political his abandon activities. Testimony may alone be sufficient to meet release, Upon his Abdulrahman returned again so it is long as credible burden — (Chen 272). Gao, During hearing home. Yun 299 F.3d at testimony amended his initial that he Background treatment sought hospital, stating at a he was treated at with home herbal medi- Most the evidence at his removal hearing family cines that his came from the members had ob- Abdul- rahman himself. Unless otherwise indicat- tained from the hospital. presumption part country That can be rebutted if the INS his or her that conditions preponderance applicant's country changed establishes a of the evi- in the have so as applicant reasonably longer dence that could to make his or her fear no reasonable 208.13(b)(l)(i) (ii)). persecution by relocating (Reg. §§ avoid and another later,
Roughly year night one on the Although Abdulrahman had stated in his 10, 2000, eight security ar- agents airport March initial interview that he did not time, any rested Abdulrahman for second have family States, the United his (“Suliman”) taking security him from his home to a Hafiz uncle Suliman also testi- interroga- office Birahi. There he was fied at the hearing removal on his behalf. Suliman, days again subjected ted for two and fled who Sudan 1996 and being torture before transferred to Khobra had been granted political asylum in the Prison, States, where he remained for a month. United testified that at the United in prison interrogated Embassy While was about States an applicant Sudan activities, political verbally his assaulted will be denied a if visa he mentions the a whip. again, beaten with Once be- existence of relatives the United States. sign fore his release he was forced to a Suliman further testified that although he promising politi- statement to refrain from had heard from Abdulrahman’s mother activity. cal nephew that his having was problems in Sudan, he did not know the nature of At about 1:00 a.m. on March problems those and did not any per- have security agents came to Abdulrahman’s sonal knowledge of Abdulrahman’s activi- time, house and arrested him for the third ties with the Student Union. Suliman also taking once more him to the “Ghost stated he did not know that his neph- House.” He believes was arrested be- ew coming was to the United States or a cause name was on list of Student that Abdulrahman had traveled to the Union members that had been taken from United States under his uncle’s name. meeting student broken up by security officers earlier that evening. Abdulrah- Abdulrahman did not produce any docu- man interrogated detained one mentation of his membership the Stu- month, beaten, during Union, which he was dent explaining that he was afraid whipped electrically all carry shocked over such documents himself and that body. captors pointed His out that his contacts in the Sudan could not do so this was his third arrest and threatened for fear of government surveillance. He that if he again they was arrested documentary would did submit reports and arti- *7 “liquidate” him. Before he was released cles that described the in conditions the again he agree was made to in writing reports to Sudan. Those detail the Sudan’s desist from political activities. poor record on human rights long- and the standing ethnic and religious conflicts be- days Ten after his release Abdulrahman tween the northern and southern Sudanese attended a public celebration that was people. Although there was a record of by police. halted Abdulrahman returned security intimidating Sudanese forces day home and later that learned that one harassing students opposed gov- who the of his friends in the Student Union was ernment, reports the made no mention of missing. Fearing that he would be ar- the Student Union. again, Mayo rested he fled to where he for stayed two months. After discussing reviewing After Abdulrahman’s testimo- evidence, his situation with his ny friends the Stu- and documentary the IJ con- Union, dent Abdulrahman decided to flee cluded that Abdulrahman was not credible He Sudan. obtained a certificate testimony of because his insufficiently was citizenship detañed, govern- from the Sudanese internally inconsistent and illogi- ment, procured false travel documents and cal. testimony regard- She found that his left August the Sudan on ing his involvement with the Student Un- general support ion too his relationship was claim. even his to Abdulrahman of apart Even the lack evidence of his questionable. summary, remained In membership in the group, Abdulrahman IJ concluded that Abdulrahman was ineli- explained specifically orga- had never gible for relief because had not he met his political its internal goals, nization’s struc- proving past burden of persecution and secretary. ture how he became its In had not provided sufficient evidence that the IJ that while addition observed Abdul- he perse- had a well-founded fear of future only explanation rahman’s for his arrests cution. Union, membership was his the Student Abdulrahman appealed that decision to why explain particu- had failed Board, arguing that the IJ erred in her targeted lar for harsher was treatment credibility determination and her find- than other members the group. Be- ings not substantially supported were cause there was no specific testimony or Deferring evidence. to the IJ and political other evidence of Abdulrahman’s affirming ruling, her the Board concluded involvement or other activities than mem- had adequately she stated the basis Union, bership Student as well as no for her adverse determination specific explanation of how those activities and that had correctly she concluded that arrests, led to his the IJ found no basis for Abdulrahman had not his met burden of concluding testimony that his about the proof. petitioned Abdulrahman timely this arrests was credible. Court for review of the Board’s decision. specificity, addition such lack of questioned consistency logic IJ Application the Relevant Standards of Abdulrahman’s claims. She noted that argues Abdulrahman the Board although he claimed to have been tortured in affirming ruling erred for IJ’s three approximately arriving five months before (1) the applied wrong reasons: IJ bur- States, physical the United he bore no den of proof asylum standard to appli- his Further, evidence mistreatment. she (2) cation, impermissibly acted as a found that his failure obtain medical witness rather than impartial an arbiter injuries at hospital treatment his was the IJ’s findings were based on not explained substantial evidence. We address each ar- herbal medicine he through obtained gument in turn. family members was practice common the Sudan. She also found that Abdulrah- Burden Proof ability man’s to obtain a certificate of citi- zenship government from the First, Sudanese argues August inconsistent with his tes- erroneously applied IJ the more strin *8 timony he hiding that was in from the gent likely standard, “more than not” ap government and could not obtain travel plicable removal, withholding to his documents documentation of his mem- asylum past claim that he perse suffered bership in the Student Union. cution. But because Abdulrahman failed appeal to raise that issue in his to the though
Even that the conceding human Board, not jurisdiction we do have to con dismal, rights in situation the Sudan 1252(d)(1) sider the question. pro Section the not persuaded by IJ was Abdulrah- judicial vides for review final testimony man’s that had been orders of political- if ly “only in removal ... has active the Sudan or suffered the alien exhaust the claimed harms. She further ed all administrative found that remedies available to credible, not right.” Suliman’s was also the alien as of Thus an alien is
595 required quite apart to raise and exhaust his or her But nonprecedential ground as to each claim or for Grant, remedies opinions, force District Court id. preserve right relief if he or she is to at 441 expressly n. 5 distinguished the judicial (Alleyne review of that claim v. issue that case—whether a failure to (3d INS, 1177, Cir.1989), 879 F.2d 1182 exhaust would preclude review of an INS 1105(a)(c) (the concluding pre- that Section decision keep petitioner in custody provision) decessor to the current “bars during his proceedings removal —from particular questions consideration of not unequivocal statutory mandate at issue Board”). in an to the appeal raised here, which expressly requires exhaustion for review of removal decisions. And Although attempts Abdulrahman to ar- McCarthy Madigan, 140, 144, v. 503 U.S. gue proof that the burden of issue was 1081, 112 (1992), S.Ct. 117 L.Ed.2d appeal raised his notice of and written sought also upon by to be relied Abdulrah- Board, brief to the are in those efforts man, made clear that Congress “[w]here vain. Even when those documents are mandates, specifically exhaustion is re expansively, nothing viewed there even quired.” Abdulrahman, Although like suggests the issue IJ’s asserted Grant, petitioner detained, has been application of the incorrect standard. Ab- authority cites no for overriding dulrahman’s to the our appeal argued Board (1) requirement exhaustion propositions: two basic that mandated IJ Sec 1252(d)(1). tion finding erred Abdulrahman was not Because Abdulrahman could have raised the findings wrong-standard credible the IJ’s were is so, substantial Al- sue before the supported evidence. Board and failed to do (R. 14, though Abdulrahman did 42- ground assert review on that been has foreclosed. 44) that the IJ “erred as matter of IJ Bias discretion,” generalized law and claim did not alert the Board the issue he Second, Abdulrahman con seeks to raise for the first time here.4 tends that the IJ improperly acted as a witness at the removal alternatively argues hearing, conducting imposition proceedings of the exhaustion in a requirement biased manner that waived, Zemski, should citing Grant v. his process rights.5 violated due re We (E.D.Pa.1999). F.Supp.2d 441-42 view de novo whether Abdulrahman’s due posed Even if government Abdulrahman had the issue to 5. Here the contends Abdul- Board, well, hardly persuasive. Following it rahman failed to exhaust this issue so case, reviewing that we are also foreclosed from a recitation of the facts of the process argument. Although grounded due law, applicable correctly stating outlined procedural process, due a claim of IJ bias determining the standard for whether Abdul- subject remains to administrative exhaustion produced rahman had sufficient evidence to requirements mandating that the issue be eligibility asylum. establish his Abdulrah- (see raised before the Board Sanchez-Cruz man relies instead on the IJ's comment in the INS, (9th Cir.2001)). determination, context of her appeal While Abdulrahman's to the Board did she likely which concluded that it was more process not frame the matter in due terms in telling than not that Abdulrahman was not words, many appeal so both notice of independent truth. That determination was argued his later brief to the Board that the IJ *9 of her conclusion that Abdulrahman had impermissibly based her decision on her own proof failed to meet his burden of that he was speculative beliefs rather than on the evi whole, eligible for relief. Read as a the IJ's such, adequately dence. As alerted the properly applies decision states and the law of issue, preserving Board to the thus it for our asylum. review. 596 (Lee in
process rights
underlying proceedings
were violated
Moi
manner
(3d
INS,
378,
unfair,
264
Chong v.
F.3d
386
Cir.
fundamentally
partial,
and
2001)).
prejudicial.”
allegation
Abdulrahman’s
the IJ
Abdulai,
597 Sarvia-Quintanilla INS, v. As she did not obstruct or deni on the stand fact, (9th Cir.1985) interject 1387, testimony. she grate 1395 had earlier cau only clarify to allow him to inconsistent ed tioned: him opportunity or the give
responses An immigration judge alone in posi- is a respond Although further detail. tion to observe an alien’s tone and de- by during used the hear language the IJ meanor, explore inconsistencies and in her does reflect an ing opinion testimony, apply and to workable and annoyance and with Abdul- dissatisfaction consistent standards the evaluation of testimony that is far from com rahman’s is, by testimonial He evidence. virtue of mendable, courtesy such a lack of and the skill, his acquired uniquely qualified to profession level of expected absence decide whether an alien’s testimony has fall) (or, accurately, do not rise alism more about it the truth. ring of The courts of (Aguilar- violation process to a of due appeals far should be less confident of Solis, 569, citing Liteky 168 at F.3d their ability important, to make such but States, 540, 555-56, United 114 U.S. subtle, often determinations. (1994)). 1147, 127 S.Ct. L.Ed.2d Arguing that ruling IJ’s evidence, lacked substantial Abdulrahman Substantiality Evidence charges that failed to provide spe Finally Abdulrahman contends cogent cific reasons for her determination credibility determina that IJ’s adverse credibility. argues that he lacked He that was not based on evidence tion substantial many of the provided reasons she in the record. review IJ’s factual We either were with inconsistent the evidence eligibility determination of an alien’s unsupported by anything or were in the asylum under the substantial evidence agree record. We that some of the IJ’s (Chen 272). Gao, Yun 299 F.3d at standard problematic, comments are indeed but IJ, Findings including of fact ad the end those deficiencies do not call for determinations, credibility will verse stringent reversal under the test dictated they to the extent that are upheld “sup by Elias-Zacarias. substantial, by reasonable, ported pro bative evidence on the record considered For example, points out Elias-Zacarias, (id.). INS v. whole” as a IJ discredited his be- 502 U.S. 481 n. 112 S.Ct. assertedly explain why cause he failed to high a L.Ed.2d 38 has set hurdle among he alone the members of the Stu- factual permitting findings reversal of targeted by security dent Union was evidence only when the record would contrary, forces. To the Abdulrahman’s ” “compel (emphasis original) a reason testimony was that members of the other contrary a able factfinder to make deter also Student Union were harassed and mination. arrested. But the IJ’s disbelief that Ab- arguably out is singled dulrahman
Implementing the Elias-Zacarias
supportable
claim that
as to his
his mem-
Gao,
standard,
Chen Yun
not obtain such other mem- the IJ’s characterization is but persecuted group bers of his would in she went note the end on to her lack of unable, likewise and offered expertise Abdulrahman medical and refrained'from ad- ability to do explanation no their what dressing the matter further.
he could not. lines, Along questioned similar IJ challenges also properly
Abdulrahman testimony Abdulrahman’s that he although the IJ’s criticism of Abdulrahman’s testi- hiding in he was was able to obtain an mony customary about the use of alterna- identity from document the Sudanese Bu- availability tive medicine and the limited Immigration, Passports, reau of Citizen- hospitals disparaging in the Sudan. ship and Identification Cards because the testimony, impermissibly that com- IJ that issued citizenship office his certificate mented that “all have hospitals countries from separate was the office that issued doctors, however he wish to pro- [sic] points travel documents. As Abdulrahman regarding vide this false information medi- out, whether or not such documents are in country, cal in institutions so be it.” by separate fact issued Sudanese offices That statement had no basis whatever in was But nowhere evidence. the IJ did highly irreg- record was therefore go not far as to a finding so make on the Although ular. say the IJ went on to those structure of offices. Rather she ex- if truly been had treated pressed doubt in hiding her that someone with herbal medicine rather than at a hos- from the so government easily could obtain pital, had offered no evidence to sub- just from government days document treatment, stantiate such we view that as before he forced the country was to flee wholly placing a unrealistic burden on Ab- being by avoid arrested and tortured really dulrahman —what could have been government. him in way confirmatory available to instances, then, In several the IJ fell evidence on that score? That is exemplary well short of what we are entitled to ex- problematic mindset the IJ pect judicial officers—her commen- case, appears have brought tary not was confined to evidence in though it does lead us overturn her the record and impermissible smacked of decision under the standard review we conjecture. clearly While that was im- must our apply, panel entire shares the proper, it remains true that the IJ en- expressed concurring views opinion gaged appropriate otherwise adverse in that respect. credibility determinations. In addition the IJ discredited Abdulrah- But overriding consideration here explanation man’s that the Sudan’s securi- extraordinarily must be the deferential ty intentionally forces utilized torture standard mandated Elias-Zacarias. techniques that would not leave scars. Al- In those terms we cannot conclude from though there was no evidence the rec- as a any evidence whole that reason- way ord either about whether electric compelled able factfinder would be to find shocks or (including other forms of torture testimony that Abdulrahman’s was credi- if beatings) would leave scars and so how true, certainly ble. It is as also stressed heal, long those scars take to would IJ, Abdulrahman’s “highly found it improbable” Abdul- political about his activities the Sudan rahman could have been tortured and the nature of the Union yet August March 2001 and Student arrive body remarkably generalized. Although with no marks on or other evi- tes- dence physical Again mistreatment. tified that Student Union was con- *12 human, contrary with and eco- political by the nation to that made cerned the and IJ Sudanese, rights upheld he Board. by nomic of the southern the orga- the specific no details about offered Conclusion objectives. activities or Nor did nization’s Because Abdulrahman failed to the identify any specific rallies or raise meetings, he issue the before Board as to the organized by the whether functions or attended IJ had an Union, applied excessively stringent though even he had been a Student standard claim asylum, to his for arewe years. for almost 15 member Abdulrah- precluded reviewing claim that his on description of Student man’s his role as Next, ground. although certainly we are secretary similarly lacking Union was troubled some of the comments in the and about the specifics provided input no opinion, IJ’s we cannot conclude that the of leadership internal structure or the or- proceedings against were biased Abdulrah- ganization. totally Overall he failed to ex- process man his such that due rights were his asserted with the plain how activities violated. atten- brought Student Union him to the security
tion forces led to his of is Finally, distressing it that three claimed arrests. seems to have failed to obli- adhere to the gation every judicial of officer to assure
Moreover, evidence documentary only not fact but also the appearance pro- did that Abdulrahman submit did Indeed, justice. of espe- that obligation is any support generalized vide to his testi- where, cially important as this of class any proof Thus he failed to mony. submit cases, the determinations of the trier in or with membership of his involvement fact subjected are to particularly narrow Union, it explaining the Student that was appellate scrutiny. dangerous too for him to have carried proof membership. of his And obtained But in end the dismissal of Abdul- his claim that despite all those in the south applications rahman’s supported joined organization, none the coun- evidence, in substantial that a reasonable try reports he submitted men- even factfinder could conclude from the record tions the Union place Student or its had not met his burden political landscape. Sudan’s Abdul- While establishing his eligibility asylum. for asylum claim rahman’s was based almost Accordingly, petition his DE- review is completely his arrests because of his NIED. Union,
membership pro- the Student BECKER, Circuit Judge, concurring. nothing testimony vided other than his that the organization establish even exist- opinion Immigration Judge The the amorphous ed. Given nature of the (IJ) is with laden statements such as in that respect, quarrel evidence we cannot I following, which find troubling terms with the IJ’s ultimate determination viability of their as judgments: presentation Abdulrahman’s lacked the respondent “The testified that necessary level of credibility. herbs, by grandmoth- was treated with his balance, then, mother, On we conclude it er and and told the Court these Sudan, things was not unreasonable for the IJ to find way are the are done in go that Abdulrahman’s was insuffi- to the do people hospital they do not ciently detailed support asylum here in the Again, Western World. case, Hence claim. we cannot hold that not the all countries all have [sic] doctors, however, determi- compel hospitals record evidence would he wish view, they to provide my extremely [sic] this false information re- come close about garding the medical institution constituting error. Sci- Judges reversible country, [Op. 596-597] so it.” at How- join riea Shadur this concurrence. ever, upon based available information Sudan, Respondent’s
about the conten- events, tion At seems reasonable. all basis for the IJ’s conclusion seems far *13 clear; rather, quite it seems tenuous.
(2) “I asylum application notice in his conveniently fortunately, stated that all of him If beatings left without scars. DRAKES, Appellant Trevor respondent was beaten as much as he was 3, 2001, given beaten on March he left his country improb- in August highly it’s AND IMMIGRATION that all able of his sears would have been NATURALIZATION asylum application healed the time his SERVICE. prepared and submitted the Court. No. 02-2886. I physician, As am not a medical the Court
will not any address this matter further. United of Appeals, States Court highly But clearly, that statement is im- Third Circuit. We, probable.” at [Op. on the 598-599.] Submitted Under Third Circuit LAR hand, easily other can beatings conceive of 34.1(a) May 2003. scars; might that do not they leave even way such a not to administered as do Filed June so. very unlikely respon- “It’s that the dent would have been able to travel from
other destinations to the United States name, under Mr. Hafiz Sulman’s without knowledge. Mr. Sulman’s There must arrangements have been some made be- [Op. tween the 599-600.] two.” at contrast, why we do know Abdulrah- man could not have traveled without Sul- Indeed, knowledge.
man’s could how have communicated with Sulman under the
circumstances? Immigration Judge’s
The statements barely cross the line into the of fact realm
finding, although Judge Shadur correct
that, in extremely view of our narrow stan- review,
dard of we are constrained to view them doing. join as so I Judge While I opinion,
Shadur’s write separately highlight express these statements and to them,
my extreme discomfiture with they Indeed, border cavalier.