Yousuff Dukuly v. John Ashcroft, Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-1497
YOUSUFF DUKULY,
Petitioner
v.
JOHN ASHCROFT,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Immigration and Naturalization Service
Board of Immigration Appeals
(BIA No. A75-838-806)
Argued February 25, 2004
Before: RENDELL, BARRY and FISHER, Circuit Judges.
(Filed March 24, 2004)
Daniel G. Anna [ARGUED]
Anna & Anna
533-A Darlington Road
Media, PA 19063
Counsel for Petitioner

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2
John Ashcroft
Richard M. Evans
Michael P. Lindemann
Daniel E. Goldman [ARGUED]
U.S. Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878, Civil Division
Washington, DC 20044
Michael T. Dougherty
U.S. Department of Justice
Office of Immigration Litigation
1331 Pennsylvania Avenue, N.W.
Washington, DC 20530
Counsel for Respondent
OPINION OF THE COURT
RENDELL, Circuit Judge.
Yousuff Dukuly, a citizen of Liberia, petitions for review of a decision by the
Board of Immigration Appeals (“BIA”) denying Dukuly’s application for asylum and
withholding of deportation. In so ruling, the BIA affirmed without opinion the findings
of the Immigration Judge (“IJ”) that Dukuly lacked credibility because he provided
inconsistent statements and fabricated documents to the Court, and because he failed to
produce sworn testimony from a key witness. Dukuly timely filed this Petition for
Review. We have jurisdiction under 8 U.S.C. § 1252. We will deny the petition for
review.

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1 “Thompson Swaray” is also referred to as “Thompson,” “Mr. Thompson,” and
“Foumba Swaray” throughout the record. According to Dukuly’s counsel, “Thompson”
is Swaray’s “Christian nickname.” Like the IJ, we will refer to him as “Thompson.”
3
I.
Dukuly was the sole witness and he provided a narrative of his experiences. In
1997, after receiving training from the Liberian National Security Agency, he was
assigned to the “VIP Security Section” at a compound occupied by a Liberian
councilman. Dukuly subsequently provided ECOMOG, an African supervisory
organization, with an anonymous tip that a large cache of weapons and ammunition was
being stored at the compound. Consequently, ECOMOG troops invaded the facility,
found the arms and ammunition, and arrested the councilman.
During the invasion of the compound, Dukuly fled with his family to Guinea.
Upon his return to Liberia a few weeks later, Dukuly was interrogated by a national
security official regarding any part he may have played in informing ECOMOG about the
weapons cache. According to Dukuly, during the course of the interrogation he was
severely beaten and urinated upon by guards. Dukuly was later released and taken to a
friend’s house to recuperate. No one was allowed to visit Dukuly for the following two
weeks except his friend, Thompson Swaray.1
Soon after Dukuly recovered from the interrogation, he returned to work at the
request of his employers. At some point thereafter, as Dukuly was driving home from
work, five soldiers in a jeep stopped him and tried to force him into their vehicle.

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2 Dukuly later testified that he learned about both rapes through his friend, Thompson.
He learned about his wife’s rape in early April and his sister’s rape in July.
4
Witnesses immediately informed ECOMOG about the situation, and troops rescued him
from the attempted abduction. Dukuly subsequently went into hiding. He learned from
Thompson that two days later, the same five soldiers and a general invaded Dukuly’s
home. The general allegedly raped Dukuly’s wife, who had just given birth to a child,
and the soldiers stole valuables from the home. Two months later, in June 1997, Liberian
soldiers allegedly captured and raped Dukuly’s sister.2 During that incident, the soldiers
told Dukuly’s sister that her entire family would suffer because Dukuly had disgraced the
councilman by informing ECOM OG about the cache of weapons formerly stored at his
compound.
Meanwhile, as he was in hiding, Dukuly obtained a visa under a false name. He
then traveled to the United States where he was admitted as a nonimmigrant visitor for
business on June 18, 1997. The visa authorized Dukuly to remain in the States no later
than September 6, 1997 – however, he overstayed the visa and thus would have been
removed but for the fact that he completed an application for asylum in late September
1997. The IJ subsequently reviewed Dukuly’s application. After holding three separate
hearings regarding Dukuly’s case, the IJ eventually denied his application and
withholding of removal, but granted his application for voluntary departure. Dukuly
appealed the IJ’s decision to the BIA, and the BIA affirmed the IJ’s decision without

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further opinion.
In his decision, the IJ stated that he found Dukuly’s testimony “fairly persuasive.”
Nevertheless, he ultimately determined that Dukuly’s credibility was “fatally damaged”
because Dukuly presented the Court with inconsistent statements and fabricated
documents, and because Dukuly failed to produce sworn testimony from Thompson.
First, the IJ noted that Dukuly never mentioned the rapes of his wife and sister in
his asylum application. Instead, the application merely indicates that Dukuly’s wife had
been threatened with rape – not that she had actually been raped. Furthermore, the
application indicates that Dukuly’s sister had been arrested, detained and interrogated –
but not that she had been raped. When asked about these omissions, Dukuly testified that
they were a result of the fact that he had been hurried and stressed when he filled out the
application.
Second, the IJ mentioned that at one point, Dukuly testified that when his wife was
raped on April 27th, his newborn child was only a few days old – yet at another point in
his testimony, Dukuly said that the baby was born on April 1st. Dukuly offered no
explanation for this inconsistency.
Third, the IJ discussed at length two documents which had been entered into
evidence during Dukuly’s hearings. The first is a report from the American Embassy in
Monrovia, wherein it is confirmed that the John F. Kennedy Medical Center in which
Dukuly claims his sister was treated for rape does in fact exist. However, according to

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3 Dukuly makes four additional arguments, all of which lack sufficient merit to warrant
detailed discussion. First, he contends that the IJ erred in finding that Dukuly made
insufficient efforts to obtain evidence in support of his case. However, nowhere in his
decision did the IJ conclude that Dukuly made such insufficient efforts. Rather, the IJ
found that the evidence which Dukuly did produce lacked credibility.
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the Embassy, the Center has no records of his sister’s admission during the period in
question. The report also indicates that Dukuly’s wife received treatment at a rape clinic,
but that there was a discrepancy with regard to medical records concerning her treatment.
The second document, a letter from an administrator at the Kennedy Medical
Center, states that Dukuly’s sister was treated for rape at the Japanese Liberian Friendship
Hospital – not at the Kennedy Medical Center. More notably, the letter indicates that
correspondence previously submitted to the IJ by Dukuly as evidence of his sister’s
treatment was completely fabricated.
Finally, the IJ noted that, at an earlier hearing, the IJ had encouraged Dukuly to
either produce Thompson as a witness at the next hearing, or at least produce a signed and
sworn affidavit from him. Despite this suggestion, Dukuly failed to do so.
Accordingly, the IJ denied Dukuly’s application for asylum. Dukuly filed this
timely appeal.
II.
Dukuly makes three main arguments on appeal: 1) the IJ misapplied the law in
determining that Dukuly submitted falsified documents to the Court; 2) the IJ erred in
finding Dukuly not credible; and 3) the IJ erred in denying asylum to Dukuly.3 In light of

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Second, Dukuly argues that the BIA erred by not considering additional documents
that Dukuly submitted to the BIA in August and October 1999. Yet nothing in the record
suggests that these documents were accompanied by a motion to reopen or to remand in
conformity with the BIA’s regulations, currently codified at 8 C.F.R. §§ 1003.2(a)-(c)
(2003). Because we are not at liberty to consider additional evidence on appeal, see 8
U.S.C.A. § 1252(a)(1), this argument must fail.
Third, Dukuly contends that the IJ violated his due process rights in failing to grant
Dukuly additional time to present evidence. However, at oral argument, Dukuly’s
counsel conceded that Dukuly’s attorney never requested any additional time from the IJ.
We do not see how Dukuly’s due process rights were implicated when he did not even
seek the time he says he was deprived of.
Finally, Dukuly argues that this Court should adjust his status to “legal permanent
resident” based on Dukuly’s recent marriage to a United States citizen. Again, this issue
is raised for the first time on appeal. Dukuly has not indicated that he submitted the
necessary documents in support of this argument to the BIA in conformity with its
regulations. Thus, he has failed to exhaust his available remedies, leaving us without
jurisdiction to consider this argument. Xie v. Aschroft, 357 F.3d 239, 246 n.8 (3d Cir.
2004).
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the standard we must apply to an IJ’s decision regarding the evidence before him in an
asylum proceeding, after reviewing the relevant portions of the record, we conclude that
these arguments lack merit.
Where the BIA affirms without opinion an IJ’s decision, “the IJ’s opinion
effectively becomes the BIA’s, and, accordingly, [we] must review the IJ’s decision.”
Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001). In the context of asylum
cases, adverse credibility determinations are reviewed under a substantial evidence
standard. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002) (citing Balasubramanrim v.
INS, 143 F.3d 157, 161 (3d Cir. 1998)). In other words, a reviewing court must sustain
an adverse credibility determination if there is substantial evidence in the record to

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support it. Gao, 299 F.3d at 272 (citing Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir.
1998)). Under this standard, such a determination must be upheld unless “‘any
reasonable adjudicator would be compelled to conclude to the contrary.’” Gao, 299 F.3d
at 272 (quoting 8 U.S.C. § 1252(b)(4)(B)).
Under 8 U.S.C. § 1101(a)(42), an otherwise removable alien may be granted
asylum if he demonstrates that he is a “refugee,” defined as “any person . . . unable or
unwilling to return to . . . [his or her] country because of persecution or a well-founded
fear of persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion . . . .” An applicant for asylum can demonstrate that he
has a well-founded fear of future persecution by showing that he has “a genuine fear, and
that a reasonable person in [his] circumstances would fear persecution if returned to [his]
native country.” Gao, 299 F.3d at 272 (citing Elnager v. INS, 930 F.2d 784, 786 (9th Cir.
1991)). An applicant claiming to be a refugee has the burden of supporting his asylum
claim with credible evidence. Gao, 299 F.3d at 272 (citing Abdille v. Ashcroft, 242 F.3d
477, 482 (3d Cir. 2001)). Indeed, a persecution claim that lacks credibility “cannot satisfy
the burdens of proof and persuasion necessary to establish eligibility for asylum or
withholding of deportation.’” Xie , 359 F.3d at 241 (citing Matter of M-S-, 21 I. & N.
Dec. 125 (BIA 1995)).
An asylum applicant’s “consistent and detailed testimony can be sufficient
to meet the burden of establishing persecution.” In Re O-D-, 21 I. & N. Dec. 1079, 1081

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(BIA 1998) (citations omitted). On the other hand, the production of counterfeit
documents, in the absence of an explanation concerning such production, “creates serious
doubts regarding the [applicant’s] overall credibility.” Id. at 1083 (citations omitted).
First, Dukuly argues that the IJ misapplied the law in determining that he
submitted falsified documents to the Court. He asserts that, in In Re O-D-, a case that the
IJ relied upon, forensic experts made the determination that the documents at issue were
counterfeit. Id. at 1079. Thus, Dukuly argues, the IJ in this case should not have relied
on the correspondence from the American Embassy and the John F. Kennedy Medical
Center, because the authors of these communications (who reviewed Dukuly’s allegedly
counterfeit documents) were not forensic experts. However, because the Federal Rules of
Evidence do not apply in asylum proceedings, the IJ was not obligated to establish the
documents’ authenticity through the testimony of forensic experts. See Ezeagwuna v.
Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003). Indeed, in an asylum proceeding, the “‘test
for admissibility of evidence . . . is whether the evidence is probative and whether its use
is fundamentally fair . . . .’” Id. (quoting Bustos-Torres v. INS, 898 F.2d 1053, 1055 (5th
Cir. 1990)); see also 8 C.F.R. § 1240.7(a) (2003) (noting that an IJ may receive in
evidence “any oral or written statement that is material and relevant to any issue in the
case . . . .”). Because there is no evidence that admission of the correspondence was
unfair or that the documents lacked probative value, we find that the IJ properly

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4 Dukuly also argues that, because he was not aware that the documents he presented
were fraudulent, the IJ should not have relied on the fact that they were when he made his
credibility determination. However, it is clear that Dukuly bore the burden of proving his
claim with credible evidence. Gao, 299 F.3d at 272 (citation omitted). Because there was
some evidence that the counterfeit documents Dukuly produced were incredible, this
contention is without merit.
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considered them in making his determination.4
Second, Dukuly argues that the IJ erred in finding him not credible.
Although the IJ did indicate that he found Dukuly’s testimony about the events at the
compound “fairly persuasive,” the IJ ultimately based his adverse credibility finding on
the entirety of the record. In particular, the IJ focused on Dukuly’s inconsistent and at
times incoherent statements, the falsified documents he presented to the Court, and the
fact that sworn testimony from a key witness was never provided. Because the
combination of these elements constitutes the “substantial evidence” necessary to support
an adverse credibility determination, and because we find that no reasonable adjudicator
would be compelled to conclude to the contrary, we will uphold the IJ’s determination.
Finally, Dukuly contends that the IJ erred in denying his application for asylum
and withholding of deportation. However, in light of the IJ’s adverse credibility
determination, we find no error in the IJ’s denial of Dukuly’s application for asylum and
withholding of deportation.
III.
Accordingly, we will deny the petition for review.

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