The U.S. Court of Appeals for the Sixth Circuit this week issued an opinion in Deh v. Blanche, denying in part and dismissing in part an appeal filed by a Mauritanian national who alleged he was denied due process thanks to a bad interpreter at the hearing in which an immigration judge denied his applications for asylum, withholding of removal (“statutory withholding”) under section 241(b)(3) of the immigration and Nationality Act (INA), and protection under the Convention Against Torture (CAT). The court also made clear that aliens fleeing alleged persecution and torture should seek protection in the first safe country they come to, rather than waiting to apply here, or risk being found not credible.
Efra Samba Deh
The petitioner, Efra Samba Deh, is a national of Mauritania, but even though he claims to be from a country in northwestern Africa, he appeared at a port of entry in California (some 6,000 miles away) on an unspecified date, without proper entry documents.
Because he lacked proper admission documents, DHS detained him in apparent accordance with section 235(b) of the INA and placed him into removal proceedings, where he conceded removability.
As relief from removal, Deh applied for asylum, statutory withholding, and CAT, alleging he had been persecuted and tortured in Mauritania in the past, and would suffer such harm in the future if returned.
“In his asylum application”, the Sixth Circuit explained, “Deh claimed that he had been forced to work as a slave and that Mauritanian authorities had arrested and tortured him multiple times. He also provided a letter from his sister recounting that Mauritanian police had repeatedly tortured him.”
The immigration judge held three separate hearings on Deh’s applications for protection, at which the petitioner claimed that he “had worked as a slave in Mauritania, performing hard labor without enough food” — but denying, contra his sister’s letter and his own statements in his asylum application, that he had ever been arrested back home.
Moreover, while Deh told an immigration officer that he had been living in the village of Sangue-Dieri before coming to this country, he claimed on his asylum application that he had resided in Wompuou from 2012 to 2018.
In his testimony, however, he claimed instead that he had been living in the city of Kiffa before moving to Nouakchott, the nation’s capital, during that period and before departing Mauritania.
Finally, whereas Deh claimed at his first asylum hearing that his older brother had been killed in Mauritania, when asked on his asylum application whether any family member had been mistreated he simply responded that “some of his family, including two of his brothers, remain enslaved”.
As the foregoing suggests, there were a number of inconsistencies among Deh’s various claims, and not surprisingly, the immigration judge latched onto them in denying his applications for asylum, statutory withholding, and CAT.
During those three hearings, Deh was assisted by interpreters in his native Fulani, which is described as “one of the most widely dispersed languages in Africa, with over 36 million speakers across 18 countries, from the Atlantic coast to the Red Sea”.
Apparently, the Fulani interpreter at the third hearing was subsequently disqualified from serving in that capacity, and instead of appealing the immigration judge’s decision to the Board of Immigration Appeals (“BIA”, the DOJ administrative tribunal that reviews immigration decisions), Deh filed a motion to reopen with the immigration judge, claiming translation difficulties “tainted” his case.
In an affidavit attached to that motion, Deh averred that he “had some issues with understanding the Fulani interpreter”, and “feared the interpreter might have been speaking a different dialect of Fulani and thus failed to relay everything” he had said to the judge.
The immigration judge in response noted that Deh had been “repeatedly” told to inform the court if he had any issues with the interpreter, which neither the alien nor his attorney did.
Further, the immigration judge noted, Deh “failed to identify any specific interpretation errors” that had tainted his testimony, and on these grounds, the judge denied the motion.
Deh appealed that denial to the BIA, arguing (in the Sixth Circuit’s words) that the immigration judge had “erred by denying his motion to reopen proceedings in light of the allegedly incompetent interpretation” and contending that the court had also “erred by declining to use his own discretion to reopen the proceedings sua sponte” — that is, on the immigration judge’s own accord.
The BIA dismissed the appeal, again noting that Deh failed to complain about the interpretation in real time and also failed to identify any errors in the translation, while concluding there were no “exceptional situations” in this case that would have required the immigration judge to reopen sua sponte.
Sua sponte reopening is a discretionary (as opposed to mandatory) authority, and in its 1997 opinion in Matter of J-J-, the BIA concluded it should only be exercised “in exceptional situations”, and is not “to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship”.
Apparently, however, the BIA used the statutory term “exceptional circumstances”, the standard for rescinding an order of removal issued in in absentia removal hearing when the alien fails to appear, in dismissing Deh’s appeal instead of the precedential term of art, “exceptional situations”, for sua sponte reopening.
I will return to that error, below.
The Sixth Circuit Order
Deh filed a petition for review with the Sixth Circuit from the BIA’s dismissal of his appeal and the immigration judge’s order denying reopening and, as noted, the circuit court dismissed in part and denied in part that petition on April 29.
As a factual matter, the circuit panel concluded that “regardless of the interpreter’s disqualification, the immigration judge correctly found that Deh wasn’t credible” given the many directly relevant inconsistencies among his various claims.
With respect to his claim that “the allegedly inaccurate interpretation violated his due-process rights”, the circuit explained that pursuant to precedent, “an illegal alien in removal proceedings ... is entitled only to a ‘full and fair hearing’”, and immigration judges have “broad discretion” in conducting such hearings.
“Proceedings violate the Due Process Clause”, the circuit held, “only when they are so fundamentally unfair that the alien was prevented from reasonably presenting his case”, and “even then, an alien must show that his inability to present his case affected the outcome of the proceeding”.
“Very few alleged defects at an immigration hearing”, the Sixth Circuit panel concluded, “rise to that extreme level”, and these didn’t come close, given that Deh failed to object to the interpreter and failed to identify “any specific interpretation errors, even on appeal”.
As for Deh’s contention in his petition for review that the immigration judge and BIA erred in not reopening his proceedings sua sponte, the circuit panel noted that, under its precedent, it lacks jurisdiction to review such decisions, but in any event, the BIA “cited the exact legal standard — 'exceptional situations’ — that Deh wanted it to apply”.
“Deh”, the circuit panel concluded, “can’t create jurisdiction by flyspecking the Board’s opinion for a loose synonym”.
Deh’s Failure to Seek Protection Abroad
Interestingly, in addition to the numerous discrepancies among Deh’s various statements that the immigration judge and the BIA identified, the Sixth Circuit identified another reason why his claim was not credible: He failed to seek protection during his journey to California:
Deh claims that he fled from Mauritania to escape persecution. But he traveled through several other countries without seeking asylum before reaching the United States. Deh’s failure to seek asylum from any country that he passed through on his way to the United States significantly undermines his claims for asylum, CAT protection, and withholding of removal. That’s because individuals with a genuine fear of persecution would likely seek protection in the first safe country in which they arrive. [Citations omitted.]
DOJ, including the BIA and immigration judges, in the Sixth Circuit and elsewhere, should take note of that finding, given that nearly all aliens who seek asylum, statutory withholding, and CAT here have “traveled through several other countries without seeking asylum before reaching the United States”.
Asylum is a discretionary protection, and while the BIA in its 1987 landmark opinion in Matter of Pula held that “whether the alien passed through any other countries or arrived in the United States directly from his country” is a factor that may be considered in determining whether to grant asylum in the exercise of discretion, the Board has never held it goes to credibility as well.
Failing to seek protection in the first safe country an alien comes to, however, clearly undermines the applicant’s claims of either persecution or torture, if for no other reason than it suggests the alien is actually an economic migrant who is merely seeking to resettle in a country with the highest standard of living.
Analysis and Publication
Two aspects of the Sixth Circuit’s opinion in Deh suggest the court meant to send a signal to other petitioners who seek Article III review after failing to make credible asylum claims — as well as to other courts.
First, the petitioner’s claim plainly and objectively borders on the frivolous, and the circuit panel could have dispensed with his petition in a much shorter and less in-depth order than it did.
Second, the circuit designated this order for publication, meaning it’s binding throughout the Sixth Circuit and persuasive precedent elsewhere.
Don’t be surprised to see opinions out of the Fifth and 11th Circuits (in particular) referencing the Sixth Circuit’s finding that an alien’s travel through multiple countries before seeking protection in the United States undermines the credibility of that alien’s asylum claim.
Illegal aliens are entitled “to a full and fair hearing” on their claims, but not much else. And the ones who fail to keep their stories straight are likely just spinning their wheels — especially when they claim to be seeking protection from persecution and torture, but cherry-pick the country where they want to receive it.