Mahamadou Daramy, a/k/a Jakara Drammeh v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2537
MAHAMADOU DARAMY,
a/k/a Jakara Drammeh,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A79-290-920
(U.S. Immigration Judge: Honorable Mirlande Tadal)
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 11, 2010
Before: SCIRICA, Chief Judge, BARRY and SMITH, Circuit Judges.
(Filed: February 8, 2010)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Appellant-Petitioner Mahamadou Daramy appeals the denial of his applications for
asylum, withholding of removal, and protection under Article 3 of the UN Convention

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The BIA had jurisdiction over this matter under 8 C.F.R. § 1003.1(b)(3), which grants1
it appellate jurisdiction over decisions of immigration judges in removal cases. We have
jurisdiction to review a final order of removal under 8 U.S.C. § 1252. Briseno-Flores v.
Att’y Gen., 492 F.3d 226, 228 (3d Cir. 2007). Removal proceedings occurred in Newark,
New Jersey, and venue is therefore proper under 8 U.S.C. § 1252(b)(2).
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Against Torture (“CAT”). The Immigration Judge (“IJ”) held that the “law of the case”
doctrine precluded Daramy’s applications because they are “in sum and substance the
same applications for relief” as the ones Daramy previously submitted and which were
denied. Additionally, the IJ found Daramy’s applications untimely because they were not
filed “within one year after the date of the alien’s arrival in the United States.” The Board
of Immigration Appeals (“BIA”) affirmed on both grounds. Daramy filed a timely
appeal. We will vacate and remand.1
I.
Daramy is a native and citizen of Sierra Leone. He first arrived in the United
States, without inspection or authorization, on or about April 1, 2001. On May 5, 2001,
he filed an application for asylum based on race, religion, and nationality; withholding of
removal; and protection under CAT. In support of his application, Daramy stated that
Revolutionary United Front (“RUF”) rebels attacked his village in 1999, destroyed his
family home, shot his parents to death, and took him to a rebel camp, where he was
beaten and jailed for refusing to join their cause. Daramy claimed he was freed when the
camp was liberated and then traveled to a refugee camp in Guinea, where he spent six

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months. Daramy stated that a friend at the camp assisted him in procuring documents and
a ticket to come to the United States.
On December 21, 2004, the Department of Homeland Security (“DHS”) served
Daramy with a Notice to Appear. The hearing was held before the Immigration Court in
Seattle, Washington on April 20, 2005, and on November 2, 2005, the IJ denied Daramy’s
application. The IJ found Daramy not credible because of “material inconsistencies
between [his] testimony and his written statements,” and questioned the authenticity of
Daramy’s documents. The IJ also concluded Daramy’s application was untimely because
Daramy did not have a passport and therefore could not prove when he first arrived in the
United States. Additionally, the IJ stated that even if Daramy was found credible, the
court would deny relief for failure to show that alleged persecution occurred on account
of a protected ground: “The respondent testified that he does not know if his family was
politically active and he stated no grounds why he or his family was targeted by the rebels
other then [sic] to recruit the respondent and his brother into the rebel forces. A
recruitment is not a protective ground.” Finally, the IJ noted that country conditions in
Sierra Leone had changed since 1999 “to such a material extent that they have rebutted
any reasonably [sic] possibility that the respondent would be harmed should he be
returned to Sierra Leone.” The IJ also denied CAT protection, finding “no competent
credible objective evidence that should the respondent be returned to Sierra Leone,” he

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would be tortured. Daramy’s request for voluntary departure was also denied because he
did not have a valid travel passport.
On November 8, 2005, Daramy filed a motion to reopen and reconsider, arguing
that the court made numerous errors in its November 2, 2005 decision. In the alternative,
Daramy requested that the court grant him voluntary departure because he had since
obtained valid travel documents. On November 29, 2005, the Immigration Court
reopened the proceedings and granted Daramy voluntary departure. On the merits,
however, the court denied the motion, stating that even if adverse findings regarding
Daramy’s credibility were erroneous, the outcome would not change because of the
alternative ground for the IJ’s November 2, 2005 decision—material change in country
conditions.
On November 30, 2005, Daramy filed a timely appeal with the BIA. During the
pendency of the appeal, on or about April 19, 2007, Daramy departed from the United
States to Gambia to look for his sister. While he was in Gambia, the BIA affirmed the
IJ’s decision, adopting the portions of the IJ’s opinion regarding untimeliness of the
asylum application, change in country conditions in Sierra Leone, and lack of evidence
for protection under CAT. Daramy did not file a petition for review with the Court of
Appeals for the Ninth Circuit.
On July 8, 2007, Daramy returned to the United States, without inspection or
authorization. On July 19, 2007, the DHS served him with a Notice to Appear. At the

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hearing before the Immigration Court in Newark, New Jersey, on August 2, 2007,
Daramy conceded removability. On August 17, 2007, Daramy filed new applications for
asylum based on political opinion and membership in a particular social group,
withholding of removal, and CAT protection. The factual basis for these applications was
the same as that for the applications filed in 2001.
On December 20, 2007, the IJ of the Immigration Court in Newark, New Jersey
denied Daramy’s new applications. Finding the applications were “in sum and substance
the same applications for relief submitted to the court on April 20, 2005,” the IJ
concluded that the law of the case doctrine precluded Daramy from making the same
applications for relief. Additionally, the IJ held the applications were untimely because
“[w]hile the Respondent ‘last arrived’ in the United States on July 8, 2007 the court finds
that the Respondent has in actuality been ‘present’ in the United States since April 2001,
except for a brief trip to Gambia for the express intention of returning to the United States
to reapply for asylum.” Accordingly, the court found “that in determining Respondent[’s]
eligibility for asylum, April 2001 and not July 8, 2007, is the date on which
Respondent[’s] ‘presence’ in the United States commenced.”
Daramy appealed to the BIA, and on April 28, 2008, the BIA adopted and affirmed
the IJ’s decision. Specifically the BIA held that “this case involves the litigation of
already-disposed-of issues, albeit in new proceedings to remove the same individual,” and
“the legal issues decided expressly or by implication in the prior immigration proceedings

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Where “the BIA both adopts the findings of the IJ and discusses some of the bases for2
the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.”
Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). We exercise plenary review over an
agency’s legal determinations, “subject to the principles of deference articulated in
Chevron v. Natural Resources Defense Council, 467 U.S. 837, 844 (1984).” Pierre v.
Att’y Gen., 528 F.3d 180, 184 (3d Cir. 2008) (citing Briseno-Flores, 492 F.3d at 228 (3d
Cir. 2007) and Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004)). We must uphold the
factual findings if they were “supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992); Abdille v. Ashcroft, 242 F.3d 477,483–84 (3d Cir. 2001) (“Under the substantial
evidence standard, [the agency’s factual findings] must be upheld unless the evidence not
only supports a contrary conclusion, but compels it.”).
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involving the same individual shall apply under the ‘law of the case’ doctrine in the
interests of judicial economy, jurisprudential integrity, and finality in immigration
proceedings.” The BIA also adopted the IJ’s “additional finding that the respondent may
not now seek asylum as he has failed to file his application within one year of his arrival
in the United States,” because his last arrival “followed a temporary departure from the
United States rather than a flight from prosecution.”
Daramy filed a timely appeal.2
II.
A.
The BIA affirmed the IJ’s application of the law of the case doctrine to deny relief
based on the findings in the initial removal proceedings in 2005. The law of the case
doctrine “posits that when a court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages in the same case.” Christianson

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v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988) (quoting Arizona v. California,
460 U.S. 605, 618 (1983)); see also ACLU v. Mukasey, 534 F.3d 181, 187 (3d Cir. 2008).
“Law of the case rules have developed to maintain consistency and avoid reconsideration
of matters once decided during the course of a single continuing lawsuit.” Pub. Interest
Research Group of N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 116 (3d Cir.
1997) (quoting 18 Charles A. Wright, Arthur R. Miller & Edward Cooper, Federal
Practice and Procedure § 4478, at 788 (1981)); see also Casey v. Planned Parenthood of
Se. Pa., 14 F.3d 848, 856 (3d Cir. 1994). Thus, the law of the case doctrine “do[es] not
apply between separate actions.” 18B Charles A. Wright, Arthur R. Miller & Edward
Cooper, Federal Practice and Procedure § 4478, at 638–39 (2d ed. 2002); see also Soc’y
of Separationists, Inc. v. Herman, 939 F.2d 1207, 1214 (5th Cir. 1991) (“[The prior case]
and the case before us are altogether separate proceedings, so law of the case is
inapplicable.”); Harbor Ins. Co. v. Essman, 918 F.2d 734, 738 (8th Cir. 1990).
The law of the case doctrine is inapposite to this case because the removal
proceedings in question, initiated with service of a Notice to Appear on July 19, 2007 and
held in Newark, New Jersey, are separate from the removal proceedings previously
initiated with service of a Notice to Appear on December 21, 2004 and held in Seattle,
Washington. The IJ applied the law of the case doctrine based on Daramy’s concession
“that his applications for relief submitted to this court on August 17, 2007 are in sum and
substance the same applications for relief submitted to the court on April 20, 2005.” The

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Available at http://www.justice.gov/eoir/efoia/ocij/oppm01/OPPM01-02.pdf.3
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BIA correctly noted that “this case involves the litigation of already-disposed-of issues,
albeit in new proceedings to remove the same individual.” But its legal conclusion that
“[i]n such a situation, the legal issues decided expressly or by implication in the prior
immigration proceedings involving the same individual shall apply under the ‘law of the
case’ doctrine’” was erroneous because the law of the case doctrine does not apply to
separate actions.
The IJ and BIA relied on legal authorities applying the law of the case doctrine in
the same case, not separate cases. In In re S-Y-G-, 24 I. & N. Dec. 247, 250 (BIA 2007),
the BIA held that the IJ’s adverse credibility determination, which was affirmed by the
BIA and not appealed to the Court of Appeals, remained the law of the case on remand
from a subsequent appeal on a separate issue. Therefore, In re S-Y-G- involved the same
removal proceedings. The BIA also cited In re City of Phila. Litig., 158 F.3d 711 (3d Cir.
1998), where we stated that “[u]nder the law of the case doctrine, one panel of an
appellate court generally will not consider questions that another panel has decided on a
prior appeal in the same case.” Id. at 717. Finally, the Operating Policy and Procedure
Memorandum 01-02–Changes of Venue, from the Office of the Chief Immigration3
Judge, instructs immigration judges to follow the law of the case doctrine in cases where
venue is changed. Here, no change of venue took place—the removal proceedings in
Newark, New Jersey were separate from those in Seattle, Washington. The IJ and the

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Our holding need not disturb the BIA’s asserted “interests of judicial economy,4
jurisprudential integrity, and finality in immigration proceedings.” Traditional res
judicata principles have been applied in immigration proceedings. See, e.g., Duvall v.
Att’y Gen., 436 F.3d 382, 386–90 (3d Cir. 2006); Medina v. INS, 993 F.2d 499, 503–04
(5th Cir. 1993); Ramon-Sepulveda v. INS, 824 F.2d 749, 750 (9th Cir. 1987); Matter of
Fedorenko, 19 I. & N. Dec. 57, 61–67 (BIA 1984); see also Restatement (Second) of
Judgments § 83. But although “[t]he doctrine of law of the case is similar to the issue
preclusion prong of res judicata in that it limits relitigation of an issue once it has been
decided,” the doctrines are distinct. Rezzonico v. H & R Block, Inc., 182 F.3d 144, 148
(2d Cir. 1999). “[L]aw of the case is concerned with the extent to which law applied in a
decision at one stage of litigation becomes the governing principle in later stages of the
same litigation. Res judicata does not speak to direct attacks in the same case, but rather
has application in subsequent actions.” Id. But we will not apply res judicata rules in the
first instance. See Konan v. Att’y Gen., 432 F.3d 497, 501 (3d Cir. 2005) (“[A] reviewing
court is powerless to decide in the first instance issues that an agency does not reach.”);
see also INS v. Ventura, 537 U.S. 12, 18 (2002) (per curiam). The BIA can consider
those principles in the first instance, and remand to the Immigration Court to further
develop the factual record as might be necessary. The BIA may also wish to consider in
the first instance whether the statutory bar under 8 U.S.C. § 1158(a)(2)(C) applies to
Daramy’s second asylum application. We express no opinion on the merits of these
issues or whether they have been preserved.
We generally do not have jurisdiction to review the Attorney General’s5
determinations regarding the one-year deadline provided in 8 U.S.C. § 1158(a)(2)(B).
See 8 U.S.C. § 1158(a)(3) (“No court shall have jurisdiction to review any determination
of the Attorney General under paragraph (2).”). However, we have jurisdiction to review
any “constitutional claims or questions of law” raised in a petition for review,
(continued...)
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BIA erred in applying the law of the case doctrine here because the doctrine is
inapplicable in the context of separate proceedings.4
B.
The BIA also affirmed the IJ’s “additional finding that the respondent may not
now seek asylum as he has failed to file his application within one year of his arrival in
the United States.” Asylum cannot be granted “unless the alien demonstrates by clear5

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(...continued)5
notwithstanding “any other provision of this chapter . . . which limits or eliminates
judicial review.” 8 U.S.C. § 1252(a)(2)(D). The proper interpretation of the 1-year
deadline in 8 U.S.C. § 1158(a)(2)(B) is a question of law over which we have jurisdiction.
See Mudric v. Att’y Gen., 469 F.3d 94, 101 (3d Cir. 2006); see also Khunaverdiants v.
Mukasey, 548 F.3d 760, 765–66 (9th Cir. 2008); Joaquin-Porras v. Gonzales, 435 F.3d
172, 178 (2d Cir. 2006) (“As the government concedes, the proper interpretation of the
one-year deadline provision of 8 U.S.C. § 1158(a)(2) is a question of law over which we
have jurisdiction under the REAL ID Act.”).
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and convincing evidence that the application has been filed within 1 year after the date of
the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). “The 1-year period
shall be calculated from the date of the alien’s last arrival in the United States or April 1,
1997, whichever is later.” 8 C.F.R. § 1208.4(a)(2)(ii) (2009). The term “last arrival” is
not defined by statute or its implementing regulations.
The IJ relied on Joaquin-Porras v. Gonzales, 435 F.3d 172 (2d Cir. 2006), where
the Court of Appeals for the Second Circuit held that “the term ‘last arrival in the United
States’ should not be read to include an alien’s return to the United States after a brief trip
abroad pursuant to a parole explicitly permitted by United States immigration
authorities.” Id. at 179. Notably, the Court of Appeals for the Second Circuit did not
have the benefit of the BIA’s interpretation of this provision. Id. at 178 (“When,
however, as is the case before us, the BIA summarily affirms a decision of an
immigration judge, we do not extend [] deference to the IJ’s statutory interpretations.”
(internal citations omitted)). Instead, the court noted that “in other contexts ‘last arrival
[in] the United States’ has been taken to exclude returns from temporary departures from

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the country.” Id. at 179. Further, the court concluded its interpretation “best accords with
the purpose of the statute as a whole.” Id. Specifically, the court observed that the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No.
104-208, 110 Stat. 3009, which added the 1-year deadline to the Immigration and
Nationality Act (“INA”), aimed to address “the abuse of humanitarian provisions such as
asylum.” Id. at 180 (quoting S. Rep. No. 104-249, at 3 (1996)). Accordingly, the court
concluded that “[p]ermitting applicants to reset the asylum clock by taking a short
excursion abroad would undermine the one-year deadline’s clear purpose of focusing the
asylum process on those who have recently fled persecution in their home countries.” Id.
Although the IJ in this case relied on the reasoning of Joaquin-Porras, and the
BIA affirmed, a subsequent decision by the BIA in In re F-P-R-, 24 I. & N. Dec. 681
(BIA 2008), adopted an opposite viewpoint and rejected Joaquin-Porras’s interpretation.
The relevant facts of In re F-P-R- are similar to this case. The petitioner, a native and
citizen of Mexico, initially arrived in the United States in 1983 without inspection. Later
that year, he returned to Mexico where he stayed until returning to the United States
without inspection in 1989. He remained in the United States without lawful status until
he returned to Mexico on June 17, 2005, to attend a funeral. He then returned to the
United States on July 20, 2005, when he was apprehended and placed in removal
proceedings. The petitioner conceded removability and filed an application for asylum.
Id. at 681–82. The IJ found the petitioner “ineligible for asylum as a result of his failure

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to file . . . within 1 year of his ‘last arrival’ in the United States,” adopting the rationale of
Joaquin-Porras to calculate the petitioner’s “1-year period of eligibility to apply for
asylum from his second arrival in the United States in 1989 instead of his most recent
coming to this country on July 20, 2005.” Id. at 682.
The BIA sustained the appeal, giving the term “last arrival” its ordinary meaning
of the “alien’s most recent coming or crossing into the United States after having traveled
from somewhere outside of the country.” Id. at 683. The BIA also held that under 8
C.F.R. § 1208.4(a)(2)(ii) (2008), “the identification and use of the date of the alien’s last
arrival in the United States for purposes of calculating the 1-year filing period is
mandatory, not discretionary or conditional.” Id. at 684. Therefore, it concluded that the
IJ erred in calculating a 1-year filing period on the basis of the prior arrival date. Id.
In reaching its holding, the BIA explicitly rejected the reasoning of Joaquin-
Porras. See id. (“We disagree with Joaquin-Porras in that we discern no basis for
construing the regulation as not taking into account entries that occurred after brief
absences from the United States.”). The BIA observed that the IIRIRA’s “legislative
history provides no direct insight into the Attorney General’s intent in promulgating the
clear regulatory text through which he implemented his delegated authority to administer,
interpret, and enforce the 1-year filing period.” Id. at 685. The BIA recognized that “the
literal construction of the term ‘last arrival’ may have the potential to permit certain aliens
to defeat the purpose of the 1-year asylum filing deadline by making a brief trip abroad

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for the sole or principal purpose of evading the time bar and resuscitating the ability to
seek asylum.” Id. Because it was not disputed in that case that the petitioner’s trip was
for a legitimate purpose, the BIA did not “examine whether the regulation should be read
to embody an implicit exception in a case where it is found that an alien’s trip abroad was
solely or principally intended to overcome the 1-year time bar.” Id.
We must accord deference to the BIA’s interpretation of the one-year deadline
provision in 8 U.S.C. § 1158(a)(2)(B) and corresponding implementing regulation, 8
C.F.R. § 1208.4(a)(2)(ii). See INS v. Aguirre-Aguirre, 526 U.S. 415, 424–25 (1999)
(holding that “principles of Chevron deference are applicable” in the immigration context
and emphasizing that “judicial deference to the Executive Branch is especially
appropriate in the immigration context”); see also Kamara v. Att’y Gen., 420 F.3d 202,
211 (3d Cir. 2005) (stating we “will afford Chevron deference to the BIA’s reasonable
interpretations of statutes with which it is charged with administering” (internal citations
omitted)). Because Congress did not define the term “the date of the alien’s arrival” in 8
U.S.C. § 1158(a)(2)(B), “the agency’s interpretation is given controlling weight unless it
is arbitrary, capricious, or manifestly contrary to the statute.” United States v. Geiser, 527
F.3d 288, 292 (3d Cir. 2008) (internal quotations omitted). Further, “an agency’s
interpretation of its own regulation[] is ‘controlling unless plainly erroneous or
inconsistent with the regulation.’” Star Enter. v. EPA, 235 F.3d 139, 147 (3d Cir. 2000)
(quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)).

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In re F-P-R- is the BIA’s controlling precedent interpreting 8 U.S.C.
§ 1158(a)(2)(B) as implemented by 8 C.F.R. § 1208.4(a)(2)(ii). The BIA’s interpretation
is not plainly erroneous or inconsistent with the statute or regulations; it employed a
sound plain meaning canon of construction. See Bonneville Int’l. Corp. v. Peters, 347
F.3d 485, 491 (3d Cir. 2003) (“We begin the process of statutory interpretation with the
plain meaning of the statute—we must first consider the text.” (internal citation omitted));
cf. Mercy Catholic Med. Ctr. v. Thompson, 380 F.3d 142, 152–53 (3d Cir. 2004) (“[A]n
agency’s interpretation of its own regulations is not entitled to substantial deference by a
reviewing court where an alternative reading is compelled by the regulation’s plain
meaning . . . .” (internal quotation marks omitted)).
Under In re F-P-R-, Daramy’s asylum application might not be barred by the 1-
year deadline. Like the petitioner in In re F-P-R-, Daramy applied for asylum shortly
after arriving in the United States, albeit following prior presence in the country. The IJ’s
application of a one-year bar is inconsistent with the BIA’s current interpretation and
must be reexamined. On remand, the BIA can consider whether Daramy’s application is
barred under its current interpretation of 8 U.S.C. § 1158(a)(2)(B), as implemented by 8
C.F.R. § 1208.4(a)(2)(ii), and remand to the Immigration Court for further development
of the factual record if required.

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III.
For the reasons set forth above, we will vacate the decision of the BIA and remand
to the BIA for proceedings consistent with this opinion.

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