Haruno Musa Darbo v. U.S. Attorney General

685 F. App'x 870
CourtCourt of Appeals for the Eleventh Circuit
DecidedApril 18, 2017
Docket16-12767 Non-Argument Calendar
StatusUnpublished

This text of 685 F. App'x 870 (Haruno Musa Darbo v. U.S. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Haruno Musa Darbo v. U.S. Attorney General, 685 F. App'x 870 (11th Cir. 2017).

Opinion

PER CURIAM:

Haruna Musa Darbo, a native and citizen of The Gambia, seeks review of the Board of Immigration Appeals’s (“BIA”) decision affirming the immigration judge’s (“IJ”) denial of his application for (1) asylum; (2) withholding of removal; and (3) relief under the Convention Against Torture (“CAT”). Darbo first argues the BIA erred by affirming the IJ’s finding that he was statutorily ineligible for asylum. He then argues the BIA erred by affirming the IJ’s finding that he was not credible and had not met the burden of proof for withholding of removal. Finally, Darbo argues the BIA erred by affirming the IJ’s finding that he had not met the burden of proof for CAT relief. After careful review, we dismiss Darbo’s petition for lack of jurisdiction in part and deny his petition in part.

I.

Darbo came to the United States on an F-l student visa on November 27, 1983. He filed an application for asylum, withholding of removal, and CAT protection on May 25, 2010. Darbo decided to apply for asylum after he discovered his name had been placed on a most wanted list by the National Intelligence Agency in The Gambia. This list was published in at least two different online newspapers. The U.S. Citizen and Immigrations Services interviewed Darbo on December 9, 2010, and later that month referred his application for further proceedings. On January 3, 2011, the U.S. Immigration and Customs Enforcement served Darbo with a notice to appear, informing him that removal proceedings against him were beginning. The notice to appear said Darbo was removable because he failed to maintain the conditions of the student visa under which he was admitted to the United States.

Darbo did not contest the government’s allegations and conceded removability. Instead he sought asylum and withholding of removal based on his political opinion and membership in a particular social group, as well as CAT protection. Darbo explained several of his colleagues had been threatened and unjustly detained by the Gambian government, He also said that if he returned to the The Gambia, he would be detained, tortured, and killed. Darbo pointed to the most wanted list for proof of his claims. He also submitted a U.S. Department of State report on The Gambia’s human rights issues, as well as a number of affidavits and articles describing political turmoil, unrest, and Darbo’s activism in The Gambia. Darbo attached to his application a statement saying that his father was a founding member of the People’s Progressive Party, and that several other close family members were heavily involved with that political party and other ideologically similar parties as well. Darbo explained that a coup d’état occurred in The Gambia in 1994, and the resulting authoritarian regime was not friendly to his family’s political involvements. He claimed there was significant danger in The Gambia to political dissidents, and also said he would be targeted because of his family, his activism in helping Gambian *873 journalism, an interview with a Gambian newspaper in which he was critical of the Gambian government, and because he was on the most wanted list.

On May 14, 2014, an IJ held a hearing at which Darbo testified. On December 3, 2014, the IJ denied Darbo’s application. The IJ found that Darbo was not credible. In making this adverse credibility determination, the IJ pointed to inconsistencies in Darbo’s statements about his claimed relatives, inconsistent dates he provided, and key omissions in his application and testimony. The IJ concluded that (1) Darbo’s asylum application was time-barred and his testimony and corroborating evidence were not credible and thus could not show changed circumstances to excuse the time bar; (2) Darbo’s removal would not be withheld because he could not meet his burden of proof given the lack of credible evidence; and (3) Darbo was not eligible for CAT protection because he had not met his burden of proof given the lack of credible evidence. Darbo appealed this decision to the BIA. The BIA affirmed and adopted the IJ’s decision on April 25, 2016. This appeal followed.

II.

We review de novo whether we have subject-matter jurisdiction over a claim. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007). When the BIA issues a decision, we review only that decision and the IJ’s decision to the extent the BIA adopted it. Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1344 (11th Cir. 2007). In this case, the BIA expressly adopted and affirmed the IJ’s decision so we review both decisions.

We review de novo the BIA’s legal determinations. Id. Any factual determinations are reviewed under the “substantial evidence” test. Id. Substantial evidence means that the BIA’s decision is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (quotation omitted). This Court will reverse factual findings “only when the record compels a reversal; the mere fact that the record may support a contrary conclusion is not enough to justify a reversal of the administrative findings.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).

A.

Darbo argues the BIA erred by affirming the IJ’s finding that he was statutorily ineligible for asylum. Generally, asylum applications must be “filed within 1 year after the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). However, an untimely application may be considered “if the alien demonstrates ... either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application.” Id. § 1158(a)(2)(D). We do not have jurisdiction to review the BIA’s factual determina.tion about whether a petitioner met the one-year time limit or whether an exception applies. Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 957 (11th Cir. 2005) (per curiam); 8 U.S.C. § 1158(a)(3).

Darbo says the BIA erred by discrediting his testimony, and therefore he was not afforded due process. This Court does have jurisdiction to review constitutional claims or questions of law raised in a petition for review. Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 (11th Cir. 2007) (per curiam); 8 U.S.C. § 1252(a)(2)(D). However, although Darbo says he is raising a due process challenge, his argument is really about a factual determination: whether the evidence he presented was credible and demonstrated changed circumstances. The record shows the IJ con *874 sidered Darbo’s evidence and reached a different factual conclusion than the one Darbo argued. Under Arias, we cannot consider factual challenges about how the evidence was weighed “couched in constitutional language.” 482 F.3d at 1284.

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Bluebook (online)
685 F. App'x 870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haruno-musa-darbo-v-us-attorney-general-ca11-2017.