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Sandie v. Attorney General of the United States

April 3, 2009

EMMANUEL TANGO SANDIE, PETITIONER
v.
ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT



On Petition for Review from the Board of Immigration Appeals BIA No. A98-775-770 Immigration Judge: The Honorable Miriam Mills.

The opinion of the court was delivered by: Smith, Circuit Judge

PRECEDENTIAL

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) October 20, 2008

Before: SMITH, COWEN, Circuit Judges and THOMPSON, District Judge.*fn1

OPINION

Emmanuel Tango Sandie petitions for review of a Board of Immigration Appeals (BIA) decision denying him asylum. Sandie claims he has a well-founded fear of persecution. He alleges that a secret group, the Wonde & Poro Society, will kill him, if he returns to his native Sierra Leone, because he refuses to become their Supreme Leader. Alternatively, if he were to acquiesce and become Supreme Leader of this group, he claims that he would be tortured and forced to commit murder as part of its leadership initiation ritual. The BIA affirmed the Immigration Judge's (IJ) determination that Sandie failed to corroborate his story and so failed to carry his burden of proof. Because the BIA committed no error in reviewing the IJ's corroboration determination, we will deny Sandie's petition.

Sandie successfully moved to stay his removal while his petition for review was pending. Subsequently, Sandie sought clarification that his motion to stay removal implicitly included a request to stay the voluntary departure period. Because removal and voluntary departure are different measures implicating different equities, we hold that a request to stay a voluntary departure period is not implicit in a motion to stay removal. Accordingly, we will deny Sandie the relief he seeks.

I.

Sandie is a citizen and native of Sierra Leone. He arrived in the United States in December 2003 to attend high school for one semester, entering as a non-immigrant J-1 visitor with authorization to remain until June 9, 2004. Sandie remained in the United States beyond that date. On March 5, 2005, he applied for asylum, withholding of removal, and protection pursuant to the Convention Against Torture (CAT).

In April 2005, the Department of Homeland Security initiated removal proceedings against Sandie. Before the Immigration Court, Sandie conceded removability and renewed his application for asylum, withholding of removal, and protection under CAT.

The IJ heard Sandie testify in support of his application on November 22, 2005. She denied Sandie's application on March 24, 2006, finding that Sandie's testimony was not credible and that, even if his testimony were viewed as "weak" instead of not credible, he failed to meet his burden of proof due to a lack of reliable evidence to corroborate his testimony. At the same time, the IJ granted Sandie's request to depart voluntarily from the United States.

Sandie appealed the IJ's decision denying his application for asylum. On February 23, 2007, the BIA affirmed the IJ's determination that Sandie failed to corroborate his story so that even if Sandie's testimony were presumed credible, he did not meet his burden of proof. The BIA also concluded that Sandie had not established that his refusal to become the Supreme Leader of the Wonde & Poro Society was cognizable as a political opinion under the Immigration and Nationality Act, which requires fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). This petition for review followed.*fn2

II.

We have jurisdiction to review final orders of the BIA under 8 U.S.C. § 1252. The BIA focused its review on the IJ's determination that Sandie failed to meet his burden of proof with evidence corroborating his testimony. Because the IJ's corroboration discussion and determinations are affirmed and partially reiterated in the BIA's decision, we review them along with the BIA decision. See Guan v. Gonzales, 432 F.3d 391, 394 (3d Cir. 2005) ("Where . . . the BIA agrees with the IJ's conclusion that a petitioner is not credible and, without rejecting any of the IJ's grounds for decision, emphasizes particular aspects of that decision, we will review both the BIA's and IJ's opinions-or more precisely, we review the IJ's decision including the portions not explicitly discussed by the BIA.") (internal citations omitted); see also Korytnyuk v. Ashcroft, 396 F.3d 272, 287 (3d Cir. 2005) ("[W]hile the 'final order' we review is that of the BIA . . . [t]here are some situations in which a court of appeals effectively reviews an IJ's decision . . . .") (internal quotation marks and citation omitted); Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004) ("Inasmuch as the BIA deferred to the IJ's credibility determinations and adopted the reasons the IJ set forth, we have authority to review both determinations."); Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004) ("[T]he BIA also appears to have substantially relied upon the adverse credibility finding of the IJ. ...


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