                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0318n.06

                                          No. 13-3361
                                                                                      FILED
                         UNITED STATES COURT OF APPEALS                          Apr 24, 2014
                              FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk


MOUSTAPHA LAYE MBENGUE,                               )
                                                      )
       Petitioner,                                    )
                                                      )    ON PETITION FOR REVIEW
v.                                                    )    FROM THE UNITED STATES
                                                      )    BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., Attorney General,                )    APPEALS
                                                      )
       Respondent.                                    )
                                                      )
                                                      )


       BEFORE: GILMAN, GIBBONS, and STRANCH, Circuit Judges.

       PER CURIAM. Moustapha Laye Mbengue, a native and citizen of Mauritania, petitions

this court for review of an order of the Board of Immigration Appeals (BIA) dismissing his

appeal from the denial of his applications for asylum, withholding of removal, and protection

under the Convention Against Torture (CAT). For the reasons set forth below, we deny the

petition for review.

       Mbengue purportedly entered the United States in 2001. In 2002, Mbengue, a black

Wolof, affirmatively applied for asylum, withholding of removal, and CAT protection, asserting

that authorities in Mauritania arrested, jailed, and mistreated him and his family and then

deported them to Senegal. He fears being jailed, subjected to torture, or killed if he returns to

Mauritania. The Department of Homeland Security subsequently served Mbengue with a notice

to appear, charging him with removability as an immigrant who, at the time of entry, was not in

possession of a valid entry or travel document.           See 8 U.S.C. §§ 1182(a)(7)(A)(i)(I),
No. 13-3361
Mbengue v. Holder

1227(a)(1)(A). Mbengue admitted the factual allegations set forth in the notice to appear,

conceded removability, and again requested asylum, withholding of removal, and CAT

protection.

       After a hearing, an immigration judge (IJ) denied Mbengue’s applications for relief and

ordered his removal to Mauritania. The IJ found that Mbengue was not a credible witness based

on material and significant inconsistencies going to the heart of his claims and that he failed to

provide any credible or trustworthy corroboration in support of his claims. The IJ further found

that Mbengue failed to provide clear and convincing evidence that his asylum application was

filed within one year of his arrival in the United States, given that he filed his initial application

on March 12, 2002, and testified that he entered the United States sometime in March 2001. If

Mbengue had timely filed his application, testified credibly, and provided corroboration,

according to the IJ, he would have established past persecution. The IJ went on to find that, even

if Mbengue established past persecution, his application would be denied for two reasons:

(1) there has been a fundamental change in circumstances, including the successful repatriation

of Afro-Mauritanian refugees, such that he no longer has a well-founded fear of persecution in

Mauritania, and (2) he does not merit a favorable exercise of discretion, considering his ten years

of safe residency in Senegal, his entry using a false passport, and his lack of family ties in the

United States at the time of his entry. The IJ concluded that Mbengue, having failed to satisfy

his burden of proof for asylum, necessarily failed to meet the higher standard for withholding of

removal and that he also failed to establish that it is more likely than not that he would be

subjected to torture in Mauritania to satisfy his burden of proof for CAT protection.

       Mbengue appealed the IJ’s decision to the BIA.             Dismissing the appeal, the BIA

concluded that the IJ’s adverse-credibility determination was not clearly erroneous and that


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Mbengue v. Holder

Mbengue could not establish eligibility for asylum, withholding of removal, or CAT protection

given the absence of credible evidence.

       This timely petition for review followed. “Where, as here, the BIA expressly adopts and

affirms the IJ’s decision but adds comments of its own, we directly review the decision of the IJ

while also considering the additional comments made by the Board.” Elias v. Gonzales, 490

F.3d 444, 449 (6th Cir. 2007). We review factual findings, including credibility determinations,

for substantial evidence, reversing “only if any reasonable adjudicator would be compelled to

conclude to the contrary.” Hachem v. Holder, 656 F.3d 430, 434 (6th Cir. 2011). Because

Mbengue filed his initial application prior to the effective date of the REAL ID Act of 2005, the

adverse-credibility determination “must be based on issues that go to the heart of the applicant’s

claim” and “‘cannot be based on an irrelevant inconsistency.’” Sylla v. INS, 388 F.3d 924, 926

(6th Cir. 2004) (quoting Daneshvar v. Ashcroft, 355 F.3d 615, 619 n.2 (6th Cir. 2004)).

       Mbengue contends that he was credible in all aspects of his testimony. Mbengue first

asserts that providing testimony more detailed than his application does not support an adverse-

credibility finding. In his initial application and again in his updated application, Mbengue

stated that he was detained “several days” by Mauritanian authorities. Mbengue testified at the

hearing that he was detained for two or three months. As the BIA stated, “[t]his is not more

detail, but, rather, a significant inconsistency” regarding the length of Mbengue’s detention. See

Cheboun v. Holder, 385 F. App’x 560, 564 (6th Cir. 2010) (stating that varying accounts of the

duration of imprisonments go to the heart of the persecution claim); Kostic v. Holder, 340 F.

App’x 249, 253 (6th Cir. 2009) (stating that discrepancies regarding the length of detention go to

the heart of the claim). Mbengue next argues that the IJ made speculative inferences about a

letter from his former neighbor, Moussa Fall. When questioned why Fall, a white Moor, would


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Mbengue v. Holder

refer to “the white Arab chas[ing] us” and “our brothers and sisters” still in prison, Mbengue

asserted that his brother, who cannot write in French, dictated the letter to Fall. Given that the

letter was signed by Fall and that Mbengue did not reveal the true author until confronted on

cross-examination, the IJ’s finding that “this letter is either fraudulent or, at best, facially flawed,

and seriously misleading” is supported by substantial evidence. As to a second letter written by

his brother, Mbengue asserts that he provided an explanation for the discrepancy between the

date on the letter and the postmark on the envelope and that this discrepancy does not go to the

heart of his claim. Mbengue does not address the “more significant problem” identified by the

IJ: the letter, dated January 12, 2005, refers to the deaths of Mbengue’s parents, but Mbengue

testified that his mother died at the end of 2005 and that his father died in September 2006.

        The record does not compel a contrary conclusion regarding Mbengue’s lack of

credibility.   The adverse-credibility determination precludes Mbengue from satisfying his

burdens of proof for asylum, withholding of removal, and CAT protection. See El-Moussa v.

Holder, 569 F.3d 250, 256-57 (6th Cir. 2009). Accordingly, we deny the petition for review.




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