                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 16a0183n.06

                                              Case No. 15-3836
                                                                                                     FILED
                              UNITED STATES COURT OF APPEALS                                  Mar 31, 2016
                                   FOR THE SIXTH CIRCUIT                                  DEBORAH S. HUNT, Clerk


OMARI TOYI,                                                 )
                                                            )
        Petitioner,                                         )
                                                            )        ON PETITION FOR REVIEW
v.                                                          )        FROM THE UNITED STATES
                                                            )        BOARD   OF  IMMIGRATION
LORETTA E. LYNCH, U.S. Attorney                             )        APPEALS
General,                                                    )
                                                            )
        Respondent.                                         )        OPINION.
                                                            )



BEFORE: KETHLEDGE, DONALD, and ROTH, Circuit Judges.

        BERNICE BOUIE DONALD, Circuit Judge. Omari Toyi, a native and citizen of

Burundi, petitions this Court for review of the Board of Immigration Appeals’ (BIA) decision

affirming an immigration judge’s (“IJ”) denial of his application for asylum, withholding of

removal, and protection under the Convention Against Torture (CAT).                                    8 U.S.C.

§§ 1158(b)(1)(A), 1231(b)(3); 8 C.F.R. §§ 1208.16(c), 1208.18. Respondent, the government,

argues that the Court lacks jurisdiction under 8 U.S.C. § 1158(a)(3) to review the BIA’s denial of

asylum and that Toyi failed to meet his burden of proof to be entitled to withholding of removal.

For the following reasons, we AFFIRM the denial of asylum and withholding of removal.


 The Honorable Jane J. Roth, Circuit Judge for the United States Court of Appeals for the Third Circuit, sitting by
designation.
Case No. 15-3836
Toyi v. Lynch
                                               I.

       Petitioner Omari Toyi was raised as a member of the Hutu community in Burundi. As a

native and citizen of Burundi, Toyi grew up around Bujumbura, the country’s capital, where he

claimed he fell victim to the persecution committed by the Tutsi members of the Burundi

government against Hutus.

       In his asylum application, Toyi alleged that, in 1989, the Tutsis violently attacked his

Hutu community, killing both his parents and burning down his home. He described how the

terror of the gunshots caused him to run away and hide during the attack. After the attack ended,

he returned home, or to what was left of it, where, his neighbors told him that his parents were

dead and that the Tutsis had entered his family home with guns. Based on what the neighbors

told him, Toyi suspected that they both had been shot.

       Toyi claimed that, following his parents’ death, he suffered three instances of torture and

abuse by the Tutsis: once in 1994, again in 1998, and once again in 2002. He claimed that, in

1994, he was beaten up by some Tutsis in his neighborhood. In 1998, he was in a central market

in Bujumbura where he was attacked by a group of young Tutsis and told that they were

attacking him because he was a Hutu. Toyi claimed that again, in 2002, as he was leaving the

central market, he was picked up by some Tutsis, including a soldier, who accused him of

feeding Hutu rebels and helping the Hutu political party, the Frodebu. Although Toyi denied the

allegations and told the Tutsis that he was a mere “supporter of the Hutu community,” the Tutsis

threw him in a prison in Ngozi province.

       Toyi claimed that the prison was very crowded, filled with inmates who were all Hutus

and guards who were all Tutsis. While in prison, he claimed that he was under constant threat of

being beaten by the guards. He eventually managed to escape the prison after a fellow inmate



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broke down the door. Afterwards, Toyi claimed that he traveled for two weeks in small carts to

reach the border between Burundi and Tanzania. In Tanzania, he allegedly obtained a passport

from somebody from Bujumbura and used it to travel on a boat to Buffalo, New York, arriving

in the United States on August 24, 2002. He further claimed that when he arrived, a “guy from

the boat” helped him exit the boat and enter the United States. He does not claim that he went

through U.S. Customs nor that he was admitted. He has no documentation indicating the date of

his entry because he allegedly lost the passport and cash in a taxicab.

       On December 19, 2002, Toyi filed an I-589 application form for asylum and for

withholding of removal with the U.S. Citizenship and Immigration Services (USCIS). The

asylum officer assigned to Toyi’s case, Daniel McCarthy, met with Toyi informally to discuss

his application and his reasons for seeking asylum.         Afterwards, the officer prepared an

“Assessment to Refer,” a document summarizing the interview, attached it to the asylum

application, and referred the application to the immigration judge (“IJ”) for formal adjudication.

In the Assessment to Refer, McCarthy noted the dates of Toyi’s entry and the filing of the

asylum application and expressly stated that Toyi had “established by clear and convincing

evidence that his request for asylum was filed timely.” A.R. 236.

       On July 16, 2014, the IJ admitted the asylum officer’s notes and Assessment to Refer into

the record over Toyi’s objection, and, as an initial matter, found Toyi removable under 8 U.S.C.

§ 1182 (a)(6)(A)(i), as charged.      The IJ further issued an oral decision denying Toyi’s

applications for relief and protection and ordered his removal to Burundi. The IJ also concluded

that Toyi was not credible, highlighting several discrepancies between his written narrative and

his oral interview statements.    Specifically, the IJ found that Toyi inconsistently described

whether his parents were both killed on the same day, whether he knew how his father was



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killed, whether he saw his mother’s corpse, and the number of times he was physically harmed

by the Tutsis in Burundi. Even if taken as credible, Toyi’s statements, the IJ concluded, do not

establish his date of entry into the United States, and thus, that he timely filed his asylum

application within one year of his entry.

       Toyi appealed the IJ’s decision before the BIA, arguing that the IJ erred in finding him

not credible and denying him relief and protection. On July 9, 2015, the BIA dismissed the

appeal and affirmed the IJ’s decision after finding that Toyi failed to show by clear and

convincing evidence that he timely applied for asylum and that the IJ’s adverse credibility

finding was not clearly erroneous. The BIA dismissed Toyi’s claims and affirmed the IJ’s

findings. In this Court, Toyi now contends on appeal that the BIA erred in its finding that Toyi

failed to fulfill his burden of proof in demonstrating that he timely applied for asylum and is

entitled to withholding of removal.

                                                II.

       We review the BIA’s decision as a final agency determination and review all legal

determinations made by the IJ and the BIA de novo. Mandebvu v. Holder, 755 F.3d 417, 424

(6th Cir. 2014). Alternatively, we review factual findings deferentially under a substantial

evidence standard, upholding factual findings only if they are ‘“supported by reasonable,

substantial, and probative evidence on the record.”’ Id. (quoting Ramaj v. Gonzales, 466 F.3d

520, 527 (6th Cir. 2006)). This means that we only reverse the BIA’s factual findings if there is

evidence that “not only supports a contrary conclusion, but indeed compels it,” where the finding

is “manifestly contrary to law.” Id. (citation omitted); see 8 U.S.C. § 1252(b)(4)(C).

                                                A.




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        Toyi argues that the BIA erred in denying him asylum in two ways: (1) by finding his

application for asylum untimely where the asylum officer expressly referred his application to

the IJ as timely; and (2) by finding his statements describing the alleged persecution lacking in

credibility.

        Federal courts ordinarily lack jurisdiction to review the BIA’s determination that an

asylum application is untimely. 8 U.S.C. § 1158(a)(3); Mandebvu, 755 F.3d at 425. The

Immigration and Nationality Act (“INA”) requires an asylum application to be “filed within

1 year after the date of the [applicant]’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B).

Under the REAL ID Act of 2005, the only way we can retain jurisdiction to review applications

that were denied for untimeliness is if the applicant “seeks review of constitutional claims or

matters of statutory construction.” Mandebvu, 755 F.3d at 425 (internal citations omitted). To

meet this requirement, such matters or claims must consist of nondiscretionary legal issues of

statutory interpretation or mixed questions of law and fact so long as the facts are undisputed.

See Huang v. Mukasey, 523 F.3d 640, 650 (6th Cir. 2008) (explaining that 8 U.S.C. § 1158(a)(3)

bars our review of asylum applications for untimeliness when the appeal seeks review of a

discretionary or factual question).

        Here, Toyi contends that it is undisputed that he timely filed his application for asylum,

because, in his Assessment to Refer, his asylum officer stated that Toyi “established by clear and

convincing evidence that his request for asylum was filed timely.” A.R. 236. He argues that the

IJ and the BIA were “estopped” from making the contrary factual finding that Toyi failed to

establish the timeliness of his asylum application. However, an “Assessment to Refer may in

fact be sufficiently reliable on certain points but not sufficiently reliable on others.” Koulibaly v.

Mukasey, 541 F.3d 613, 621 (6th Cir. 2008). Toyi’s argument that the IJ and the BIA had to



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defer to the conclusions contained in the Assessment to Refer gets the law backwards. The BIA

is not permitted, much less required, to blindly accept the conclusions contained in an

Assessment to Refer. See id.

       Here, the BIA adopted the IJ’s factual finding that Toyi failed to show that he applied for

asylum within one year of arriving in the United States. Under 8 U.S.C. § 1158(a)(3), the BIA’s

determination is insulated from judicial review. This Court therefore lacks the authority to

review Toyi’s petition as it pertains to his application for asylum.

                                                 B.

       Next, we turn to the BIA’s finding regarding Toyi’s request for withholding of removal

under the INA and the CAT.          To qualify for withholding of removal, an applicant must

demonstrate that it is more likely than not that, if removed to a designated country, his “life or

freedom would be threatened” on account of a protected ground. INA § 241(b)(3)(A), codified

at 8 U.S.C. § 1231(b)(3)(A). Regardless of whether the request was made pursuant to the INA

or the CAT, we review the BIA’s decision on a request for withholding of removal under the

same standard. Huang, 523 F.3d at 651. Withholding of removal is not discretionary, but

mandatory if a petitioner establishes that his “life or freedom would be threatened in the

proposed country of removal on account of race, religion, nationality, membership in a particular

social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(a); Khalili v. Holder, 557 F.3d 429,

435 (6th Cir. 2009) (internal citation omitted). The BIA has defined “persecution” as “the

infliction of harm or suffering by the government, or persons the government is unwilling or

unable to control, to overcome a characteristic of the victim.” Pilica, 388 F.3d at 950 (internal

citation omitted). To be eligible for withholding of removal under the CAT, an applicant must

establish that he would be subject to torture by or at the instigation of, or with the consent or



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acquiescence of a public official or person acting in an official capacity.       See 8 C.F.R.

§ 1208.18(a)(1).

       An applicant seeking withholding of removal faces “a more stringent burden than what is

required on a claim for asylum.” Liti v. Gonzales, 411 F.3d 631, 640 (6th Cir. 2005). Unlike

with asylum applications, the determination of whether a petitioner is entitled to withholding of

removal is based on circumstances existing at the time of adjudication and not at the time of

filing. Yousif v. Lynch, 796 F.3d 622, 632 (6th Cir. 2015). The Attorney General is precluded

from removing a petitioner if at the time of adjudication, it is “more likely than not” that the

petitioner, if removed, would be persecuted. Id.

       Here, the IJ examined a 2013 Burundi human rights report that Toyi submitted for the

record and found that the report did not indicate any ongoing threat of persecution or torture

against Hutus.     The IJ found, rather, that the report tracked positive changes in political

conditions in Burundi since the Rwandan Hutu-Tutsi genocide, which suggested efforts toward

full integration among the Hutus and the Tutsis. The IJ noted, for example, that the report

indicated that the country was getting closer to maintaining equal representation of Tutsis and

Hutus in both the military and the government. In turn, the IJ concluded that the report was

“devoid of indication that there is an ongoing civil conflict between the Hutu and Tutsis in

Burundi.” A.R. 59.

       In his briefing before this Court, Toyi presented evidence of very recent ethnic killings

and political assassinations, not to mention, a United Nations statement describing worsening

conditions and warning of mass violence erupting in Burundi.          However, none of these

documented changes in country conditions that were raised in his briefs were before the BIA. In

considering a petition for relief from a final order of removal, we must decide the petition only



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on the administrative record on which the order of removal is based[.]”                 8 U.S.C.

§ 1252(b)(4)(A).   Accordingly, we have no authority to take into consideration additional

evidence, and we find that the reports already included in the administrative record do not

compel a reversal of the BIA’s findings.

       In light of the recent deteriorating security situation in Burundi, however, Toyi is not

helpless in obtaining relief. When a petitioner discovers new information after the BIA has

finalized deportation proceedings, the proper procedure is for the applicant to request the BIA to

reopen the proceedings. 8 C.F.R. § 1003.23(b)(3)–(4)(i). Therefore, Toyi may still file a motion

to reopen his immigration court proceedings and to stay his removal because of “changed

country conditions,” as provided for under 8 C.F.R. § 1003.23(b)(3)–(4)(i).

                                               III.

       Based on the foregoing, we AFFIRM the BIA’s decision denying Toyi asylum and

withholding of removal.




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