Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-9-2008
Conde v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3615
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3615
AISSATOU CONDE,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A95 841 422)
Immigration Judge: Honorable Donald Vincent Ferlise
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 9, 2008
Before: BARRY, SMITH and HARDIMAN, Circuit Judges
(Opinion filed July 9, 2008)
___________
OPINION
___________
PER CURIAM
Aissatou Conde, a native and citizen of Guinea, entered the United States in
December 2002. She was charged with removability under Immigration and Nationality
Act (“INA”) § 237(a)(1)(A) [8 U.S.C. § 1227(a)(1)(A)], as an alien not in possession of a
valid entry document. Conde conceded her removability but applied for asylum,
withholding of removal, and protection under the United Nations Convention Against
Torture (“CAT”). She claimed that she was persecuted because of her affiliation with the
political opposition party RPG. See Fadiga v. Attorney General, 488 F.3d 142, 147 & n.8
(3d Cir. 2007) (discussing origins of RPG party). In particular, Conde asserted that she
was assaulted in school by a group of students who supported a candidate for another
political party, that she was attacked by police during a political demonstration, and that
she was arrested, imprisoned, beaten and raped.
Citing several alleged inconsistencies in her story, the Immigration Judge (“IJ”)
denied relief, finding that Conde “fabricated her entire case in chief.” Conde appealed
and filed a motion to remand, asserting for the first time that she had been subjected to
female genital mutilation (“FGM”). In June 2007, the Board of Immigration Appeals
(“BIA”) dismissed the appeal, finding no clear error in the IJ’s adverse credibility
determination. The Board also denied the motion to remand because the FGM claim did
not involve new and material evidence. Conde filed a timely petition for review of the
BIA’s decision.
An applicant for asylum has the burden of establishing that she is unable or
unwilling to return to her home country “because of [past] persecution or a well-founded
fear of future persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion[.]” INA § 101(a)(42)(A) [8 U.S.C.
§ 1101(a)(42)(A)]; see 8 C.F.R. 208.13(a); Abdille v. Ashcroft, 242 F.3d 477, 483 (3d
Cir. 2001). This Court reviews the determination that an applicant has failed to
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demonstrate past persecution or a well-founded fear of future persecution under the
substantial evidence standard. See Abdille, 242 F.3d at 483. That standard is also used to
review adverse credibility determinations. See Balasubramanrim v. INS, 143 F.3d 157,
161 (3d Cir. 1998). Adverse credibility determinations based on speculation or
conjecture are not upheld. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). In
general, “minor inconsistencies and minor admissions that reveal nothing about an . . .
applicant’s fear for his safety are not an adequate basis for an adverse credibility finding.”
Id. Any discrepancies must involve the heart of the claim.1 Id. Because the BIA
explicitly approved of one of the IJ’s adverse credibility determinations and implicitly
adopted the IJ’s other findings, we review the decisions of both the BIA and the IJ. See
Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004).
Although the core of this case involves the adverse credibility determinations,
Conde devotes a majority of her opening brief to arguing that she is eligible for asylum
because she was forced to undergo FGM. The BIA never reached this issue, however,
which was raised for the first time in a motion to remand the proceedings. Instead, the
Board denied the motion to remand because the FGM claim could have been discovered
and presented prior to the hearing before the IJ and because Conde had failed to establish
that her former counsel was ineffective. See 8 C.F.R. § 1003.2(c)(1); Korytnyuk v.
1
The provisions of the Real ID Act of 2005 that address the Court’s review of an
adverse credibility finding do not apply in this case because Conde applied for relief
before the Act’s effective date. See Kaur v. Gonzales, 418 F.3d 1061, 1064 n.1 (9th Cir.
2005).
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Ashcroft, 396 F.3d 272, 282 (3d Cir. 2005) (holding that a motion to remand is equivalent
to motion to reopen filed while appeal is pending). Importantly, as the government points
out, Conde has made no effort to demonstrate that the BIA abused its discretion in
denying the motion to remand. See Vakker v. Att’y Gen., 519 F.3d 143, 146 (3d Cir.
2008) (stating that this Court “generally reviews motions to remand deportation
proceedings, like motions to reopen or reconsider, for abuse of discretion.”). The failure
to identify or argue an issue in an opening brief constitutes waiver of that argument on
appeal. See Lie v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005). Here, because Conde
mentions the denial of the motion to remand only in the “Statement of the Case and Fact”
section of her brief, she has waived her challenge to that portion of the BIA’s order. See
Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (citations omitted) (holding
that an issue referred to in the statement of the case but not discussed in the body of the
opening brief is deemed waived”).
Moreover, although Conde does allege that “the IJ’s lack of credibility
determination, affirmed by the BIA, was not supported by substantial evidence,” she fails
to address with any degree of specificity the findings supporting that determination.
Rather, she merely claims that the IJ relied on “a few inconsistencies that were not
material to [her] asylum application.” But Conde’s brief never identifies any of those
inconsistencies, much less explains why they were not supported by substantial evidence.
Conde also asserts in conclusory fashion that “the tone, tenor, disparagement and the
sarcasm of the IJ tainted the proceedings in such a way that Petitioner was not able to
4
present [her] case.” The only evidence offered in support of this argument is a short
exchange between Conde and the IJ concerning the date that she allegedly was attacked in
school. This minor excerpt from the hearing, which by itself does not reflect improper
conduct by the IJ, fails to demonstrate that Conde’s ability to present her claim was
prejudiced. See Cham v. Att’y Gen., 445 F.3d 683, 692 (3d Cir. 2006). Because Conde
has been represented by counsel in these proceedings, “it is not our obligation to ferret out
[her] arguments. That, after all, is the purpose of briefing.” McCarthy v. SEC, 406 F.3d
179, 186 (2d Cir. 2005). We do not find that manifest injustice would result if we decline
to reach the adverse credibility determinations. See Filja v. Gonzales, 447 F.3d 241, 256
n.8 (3d Cir. 2006). Under the circumstances, Conde’s generalized arguments lack the
specificity required to preserve for review any challenge to the credibility finding. See
Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005) (deeming fear of future
persecution claim abandoned where petitioner devoted only a single conclusory sentence
to his argument).
For the foregoing reasons, we will deny the petition for review.
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