Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
10-14-2008
Forkpa-Bio v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1938
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1938
___________
MULBAH B. FORKPA-BIO,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
(Agency No. A72-502-971)
Immigration Judge: Rosalind K. Malloy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 10, 2008
Before: AMBRO, FUENTES and FISHER, Circuit Judges
(Filed: October 14, 2008)
___________
OPINION
___________
PER CURIAM
Appellant Mulbah B. Forkpa-bio, a native and citizen of Liberia, was admitted to
the United States on or about July 10, 1982 on a non-immigrant B-1 visa. He overstayed.
About seventeen years later, on July 1, 1999, Forkpa-bio filed an asylum application with
the former Immigration and Naturalization Service (“INS”). The INS referred it to an
Immigration Judge, and, on July 5, 2000, Forkpa-bio was served with a Notice to Appear
(“NTA”), alleging that he was removable under the Immigration and Nationality Act
(“INA”) § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as a non-immigrant who remained in
the United States for a time longer than permitted. The NTA indicated that Forkpa-bio
was to appear on August 29, 2000 at the Immigration Court in Philadelphia,
Pennsylvania. He failed to appear and was ordered removed in absentia.
Forkpa-bio’s removal proceedings subsequently were reopened, and, on
February 15, 2005, he appeared before an Immigration Judge at a master calendar
hearing, and admitted the factual allegations contained in the Notice to Appear. The IJ
thus found him removable as charged. Forkpa-bio expressed a wish to pursue his asylum
application, and the IJ questioned him to determine whether he was eligible for any other
forms of relief. The IJ determined that he was ineligible for cancellation of removal
under 8 U.S.C. § 1229b(b), because he had been separated from his only qualifying
relative for five years and could not therefore show hardship to that relative, see 8 U.S.C.
§ 1229b(b)(1)(D). The IJ also found that legalization under the Immigration and Reform
Act of 1986 (“IRCA”) was no longer available.1 The IJ further found that Forkpa-bio was
1
An alien seeking to legalize his status through IRCA must have filed a
legalization application between May 5, 1987 and May 4, 1988. 8 U.S.C.
§ 1255a(a)(1)(A).
2
not eligible to adjust status in the absence of an approved Form I-130 immigrant visa
petition.
On April 12, 2005, Forkpa-bio again appeared before the IJ, and provided a copy
of a receipt notice for a Form I-130 filed on his behalf by his United States citizen
brother. The IJ continued proceedings for processing of the visa petition, and also
recommended that Forkpa-bio seek the assistance of an attorney. Forkpa-bio appeared at
his continued master calendar hearing on December 6, 2005, and informed the IJ that his
Form I-130 had not been approved. The IJ noted that, even with an approved visa
petition, the time to adjust status for siblings of United States citizens was very long.2
The IJ again encouraged Forkpa-bio to retain counsel.
On November 29, 2006, Forkpa-bio appeared without counsel for his merits
hearing. He testified that he fears returning to Liberia because it is not a safe place to
live, and government officials or others would be jealous of him due to the time he spent
in the United States. He testified that his parents and brother were killed during the civil
war in 1993 and his town was burned down. When asked why he did not file an asylum
application prior to 1999, he answered that he “never thought of that” because he was
married and was unaware of the asylum procedure. A.R. 191-92, 224. Prior to coming to
2
The government notes in its brief on appeal that, for August 2008, immigrant
visas are available for siblings of United States citizens whose immigrant visa petitions
were filed in September 1997. See U.S. Dep’t of State Visa Bulletin (Aug. 2008),
available at http://travel.state.gov/visa/frvi/bulletin/bulletin 4310.html.
3
the United States, he was unable to obtain employment with the Liberian government
because of his membership in the Belle tribe. A.R. 168-69, 173. The Liberian
government is dominated by Americo-Liberians, who discriminate against native
Liberians. However, he found employment with “profit institutions.” A.R. 169. One of
his brothers lives in the United States and his five sisters remain in Liberia. A.R. 176. He
did not know the location of four of his brothers. A.R. 176. Additionally, he testified
that he feared being robbed upon returning to Liberia because those who are perceived as
having money are often the victims of robberies. A.R. 179-83.
The government submitted the 2005 Department of State Report on Human Rights
Practices in Liberia, and the 1998 Department of State Profile of Asylum Claims and
Country Conditions for Liberia. According to the 1998 Profile, in December 1989, rebel
forces led by Charles Taylor campaigned to overthrow President Samuel Doe. President
Doe was captured and executed in September 1990, marking the end of constitutional
government in Liberia and the beginning of a civil war, which continued until Taylor’s
inauguration as president of Liberia in August 1997. Fighting resumed in 1999, and
continued until 2003. From October 2003 until November 2005, Liberia was governed by
the interim National Transitional Government of Liberia (“NTGL”). On November 23,
2005, Ellen Johnson-Sirleaf won the multi-party presidential election. Prior to President
Johnson-Sirleaf winning the election, the NTGL was considered to have generally
respected the human rights of its citizens, although problems persisted in some areas,
4
including deaths from mob violence, police abuse and harassment, and harsh prison
conditions. In 2005, unlike previous years, rebel combatants no longer retained control of
rural areas and civilian authorities generally maintained effective control over rural areas.
Civilian authorities generally maintained effective control over security forces.
At the conclusion of the merits hearing, the IJ issued an oral decision, denying
Forkpa-bio’s applications for asylum, withholding of removal, and protection under the
Convention Against Torture. The asylum application was denied as untimely, and the IJ
found that Forkpa-bio did not establish exceptional or changed circumstances to excuse
his failure to file his asylum application by April 1, 1998. 8 C.F.R. § 1208.4(a)(2)
(requiring that an asylum applicant file his application within the one year of his arrival in
the United States or April 1, 1997, whichever is later).3
The IJ further found that Forkpa-bio failed to establish a clear probability that he
would be harmed on account of a protected ground if he were to return to Liberia. The IJ
noted that Forkpa-bio described some discrimination in the form of failing to obtain
government employment on account of his ethnicity, and that he claimed to fear future
persecution due to his speculation that Liberians would be suspicious of his residence in
the United States, but these allegations did not rise to the level of persecution. The IJ
3
If the alien can establish “either the existence of changed circumstances which
materially affect the applicant’s eligibility for asylum or extraordinary circumstances
relating to the delay in filing the application,” failure to file the application by the relevant
deadline may be excused. 8 U.S.C. § 1158(a)(2)(D).
5
acknowledged that Forkpa-bio credibly described a high prevalence of crime in Liberia,
but she determined that this was not a basis for the relief of withholding of removal.
With respect to his Convention Against Torture claim, the IJ found that Forkpa-bio failed
to establish that he more likely than not would be tortured upon his return to Liberia. The
IJ ruled that Forkpa-bio was eligible for voluntary departure, and issued an alternate order
of removal to Liberia.
Forkpa-bio appealed the IJ’s decision to the Board of Immigration Appeals, and on
March 4, 2008, the Board adopted and affirmed the IJ’s decision, citing Matter of
Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994) (Board may adopt or affirm decision of
immigration judge, in whole or in part, when it is in agreement with reasoning and result
of that decision). The Board agreed that Forkpa-bio did not present exceptional
circumstances sufficient to overcome his failure to timely file his asylum application, and
that he was not eligible for withholding of removal or protection under the Convention
Against Torture.
Instead of filing a petition for review with this Court, Forkpa-bio attempted to seek
review of the Board’s March 4, 2008 decision by filing a petition for writ of habeas
corpus under 28 U.S.C. § 2241 in the United States District Court for the Eastern District
6
of Pennsylvania on March 21, 2008 (at D.C. Civ. No. 08-cv-01384). The District Court
transferred the habeas corpus petition to this Court pursuant to 28 U.S.C. § 1631.4
We will deny the petition for review. We have jurisdiction generally to review
final orders of removal under 8 U.S.C. § 1252(a)(1). However, because Forkpa-bio failed
to present a constitutional claim or question of law, we lack jurisdiction to review the
Board’s finding that he did not timely file his asylum application. The INA precludes
judicial review of the Board’s determination regarding the one-year filing deadline and
whether extraordinary circumstances exist to excuse the filing delay. 8 U.S.C.
§ 1158(a)(3); see also Sukwanputra v. Gonzales, 434 F.3d 627, 633 (3d Cir. 2006)
(judicial review bar of section 1158(a)(3) does not violate Due Process Clause). Despite
this bar to review, we retain jurisdiction to review questions of law and constitutional
issues regarding the application of 8 U.S.C. § 1158(a)(2). Jarbough v. U.S. Attorney
General, 483 F.3d 184, 190 (3d Cir. 2007); 8 U.S.C. § 1252(a)(2)(D). Although Forkpa-
bio claims in his opening brief on appeal that the denial of asylum violated his Equal
Protection and Due Process rights, we find the argument insufficient to invoke our
jurisdiction. Jarbough, 483 F.3d at 190 (argument that IJ simply reached wrong outcome
is not properly viewed as constitutional challenge).
4
We find this transfer proper insofar as Forkpa-bio filed his habeas corpus petition
within thirty days of the Board’s decision. See 28 U.S.C. § 1631; see also 8 U.S.C.
§ 1252(b)(1).
7
Turning to the issues over which we have jurisdiction, where, as here, the Board
adopts and affirms the opinion of the IJ, we review the IJ’s decision. See Abdulai v.
Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001). The IJ’s factual determinations are
upheld if they are supported by reasonable, substantial, and probative evidence on the
record considered as a whole. Immigration & Naturalization Serv. v. Elias-Zacarias, 502
U.S. 478, 481 (1992). The standard for withholding of removal under INA
§ 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), is: “the Attorney General may not remove an
alien to a country if the Attorney General decides that the alien’s life or freedom would be
threatened in that country because of the alien’s race, religion, nationality, membership in
a particular social group or political opinion.” The standard is more exacting than the
asylum standard and requires the alien to show by a “clear probability” that his life or
freedom would be threatened on account of a protected ground in the proposed country of
removal. Immigration & Naturalization Serv. v. Stevic, 467 U.S. 407, 412 (1984); see
also Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987)
(“would be threatened” standard has no subjective component).
An applicant for withholding of removal may establish that his life or freedom
would be threatened upon his return to the proposed country of removal either by
demonstrating that he suffered past persecution in that country on account of a protected
ground or that he more likely than not would suffer future persecution in that country on
account of a protected ground. 8 C.F.R. § 1208.16(b)(1), (2). Persecution is defined as
8
“threats to life, confinement, torture, and economic restrictions so severe that they
constitute a threat to life or freedom.” Kibinda v. U.S. Attorney General, 477 F.3d 113,
119 (3d Cir. 2007) (quoting Fatin v. Immigration & Naturalization Serv., 12 F.3d 1233,
1240 (3d Cir. 1993)). It “refers only to severe conduct and does not encompass all
treatment our society regards as unfair, unjust or even unlawful or unconstitutional.” Id.
The record in this case does not compel a finding of past persecution. Non-severe
economic discrimination of the kind noted by the IJ here does not rise to the level of
persecution, see In re: T-Z-, 24 I. & N. Dec. 163, 171-74 (BIA 2007), and an allegation of
prospective incidents of random violence does not establish persecution on account of a
protected characteristic. See Konan v. U.S. Attorney General, 432 F.3d 497, 506 (3d Cir.
2005) (general conditions of civil unrest or chronic violence and lawlessness do not
generally amount to persecution). The IJ dismissed Forkpa-bio’s testimony about his fear
of future persecution by Taylor forces lying in wait, appropriately relying on the 2005
Country Report which specifically rebuts this testimony. The death of Forkpa-bio’s
parents during the 1993 civil war in Liberia is tragic, but does not demonstrate that it is
now more likely than not that he will be singled out for persecution on account of a
protected ground. The Country Report reflects that the civil war ended in 2003, and
conditions have improved since that time. Further, Forkpa-bio produced insufficient
evidence that he would be targeted for mistreatment on account of his ties to the United
9
States or any protected ground. The 1998 Profile notes that thousands of Liberians,
including President Johnson-Sirleaf, have lived and studied in the United States.
To establish a basis for relief under the Convention Against Torture, the alien must
establish that it is more likely than not that he would be tortured if returned to the country
of removal. 8 C.F.R. § 1208.16(c)(2). Torture is defined as “an extreme form of cruel
and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading
treatment or punishment. . . .” 8 C.F.R. § 1208.18(a)(2). The IJ concluded that Forkpa-
bio did not meet his burden of establishing that it is more likely than not that he would be
tortured upon his return to Liberia, 8 C.F.R. §§ 1208.16, 1208.18, and we conclude that
the record does not compel a different conclusion.
Finally, to the extent that Forkpa-bio argues that he is eligible for a waiver of
inadmissibility under 8 U.S.C. § 1182(h) or former 8 U.S.C. § 1182(c), he failed to
exhaust these issues before the IJ or on appeal to the Board, and thus we lack jurisdiction
to consider these claims. See 8 U.S.C. § 1252(d)(1); Zheng v. Gonzales, 422 F.3d 98,
107-08 (3d Cir. 2005).
For the foregoing reasons, we will deny the petition for review.
10