               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 07a0138n.06
                          Filed: February 20, 2007

                                          No. 05-4470

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


MAMADOU FALL,                                   )
                                                )
       Petitioner,                              )
                                                )   ON PETITION FOR REVIEW OF AN
       v.                                       )   ORDER OF THE BOARD OF
                                                )   IMMIGRATION APPEALS
ALBERTO GONZALES, Attorney General,             )
                                                )
       Respondent.                              )
                                                )
                                                )


       Before: DAUGHTREY and ROGERS, Circuit Judges; OBERDORFER, District Judge.*


OBERDORFER, District Judge.

       Mamadou Fall petitions for review of the October 21, 2005, order of the Board of

Immigration Appeals (BIA), affirming the Immigration Judge’s (IJ’s) June 7, 2005, denial of his

application for asylum, withholding of removal, and relief under the Convention Against Torture

(CAT). We assume familiarity with the case’s procedural history and background.

       Fall is a fifty-two year-old native of Mauritania and a member of the Fulani ethnic group.

His wife and children presently live in Senegal. He sends them financial support derived from

his wages as a restaurant cook in Columbus, Ohio.



       *
      The Honorable Louis F. Oberdorfer, United States District Court for the District of
Columbia, sitting by designation.
       Fall testified that he entered the U.S. using another person’s passport in March 1999. A

decade earlier, the government of Mauritania apparently had detained him and confiscated all his

land because it believed, incorrectly, that Fall belonged to an anti-government political

organization advocating on behalf of his ethnic group, black Fulani. Fall claims that after ten

months of brutal interrogation, the government released him to be forcibly deported to Senegal,

where he was reunited with his wife and family. In Senegal, the Falls had two other children and

struggled economically.

       In 1996, Fall was in the employ of a construction worker in Senegal, through whom he

met someone who was willing to sell him a Senegalese passport for Fall’s personal use. So Fall

rented a passport and with it traveled to the U.S., illegally entering the country, he says, in March

1999. He ultimately settled in Columbus, Ohio, to work as a restaurant cook.

       In August 1999, Fall applied for asylum, and the former INS commenced removal

proceedings. Fall conceded removability in October 2002, but continued to seek asylum relief.

On June 7, 2004, Fall appeared before the IJ in Arlington, Virginia, by video conference with

counsel who attempted unsuccessfully to quash the video hearing. Following the hearing, the IJ

denied Fall’s application for asylum, withholding of removal, and relief under the CAT, and

ordered him removed to Mauritania. The BIA affirmed that decision, adopting the IJ’s

determinations while adding that it did not find any violation of due process at Fall’s hearing.

I.     Asylum

       Petitioner asserts various claims for relief from the BIA decision. We focus first on

whether his asylum application was timely filed. See 8 U.S.C. § 1158(a)(2)(B). Relying largely

on a credibility determination, the IJ found that petitioner had failed to “establish, by clear and


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convincing evidence, that he entered the United States in the manner that he . . . testified”— i.e.,

petitioner had not shown that he had “filed [his asylum application] within one year [of the date

of his entry] by clear and convincing evidence.” JA 53. The BIA affirmed this finding. JA 2.

       This court has no jurisdiction to review the IJ’s determination that petitioner’s asylum

application was untimely. 8 U.S.C. § 1158(a)(3); see Castellano-Chacon v. INS, 341 F.3d 533,

544 (6th Cir. 2003). Petitioner’s sole argument regarding timeliness is that the IJ’s determination

that his “application was untimely is not supported by substantial evidence.” Pet. Br. at 18

(emphasis removed). Entertaining such an argument would involve impermissible judicial

review of a purely factual determination. See 8 U.S.C. § 1158(a)(3); Castellano-Chacon, 341

F.3d 543-44; Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 153-54 (2d Cir. 2006).

Moreover, because petitioner raises no questions of law or constitutional claims, he cannot obtain

judicial review under § 1252(a)(2)(D), which only permits review of “constitutional claims or

questions of law.” See id.; Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006).

Accordingly, we dismiss his petition for review of the denial of his asylum application.

II.    Withholding of Removal and Relief Under the CAT

       Petitioner’s second and third claims seek withholding of removal and relief under the

CAT. They are not subject to the same timeliness considerations as asylum applications, so this

court has jurisdiction over those claims. See 8 U.S.C. § 1231(b)(3)(A); Castellano-Chacon, 341

F.3d at 545-53 (reviewing withholding of removal and CAT requests despite lack of jurisdiction

to review timeliness of asylum application).

       To qualify for withholding of removal, petitioner must establish that his “life or freedom

would be threatened in [the] country [of removal]” on the basis of one of five statutory grounds,


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“race, religion, nationality, membership in a particular social group, or political opinion.” 8

U.S.C. § 1231(b)(3)(A); see 8 C.F.R. § 208.16(b). If petitioner establishes that he “suffered past

persecution” on the basis of one such statutory ground, eligibility for withholding is presumed,

subject to rebuttal. Id. In this regard petitioner must provide evidence showing a “clear

probability” that he would be subject to persecution, meaning that “it is more likely than not that

the alien would be subject to persecution.” See INS v. Stevic, 467 U.S. 407, 424 (1984); Mullai

v. Ashcroft, 385 F.3d 635, 639 (6th Cir. 2004).

       Our review of an IJ’s determination that petitioner has not proved persecution by a clear

probability is necessarily deferential. We cannot disturb that finding “unless any reasonable

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B)

(emphases added); see Berri v. Gonzales, 468 F.3d 390, 395 (6th Cir. 2006). Where, as here, the

BIA decision affirming the IJ’s decision adopts the IJ’s reasoning and factual findings, we may

review the decision of the IJ directly, as modified (if at all) by the BIA. Gilaj v. Gonzales, 408

F.3d 275, 282-83 (6th Cir. 2005).

       Here, the IJ found that petitioner had not proved by a clear probability that he was

“subjected to the conditions to which he testified.” JA 54. The IJ observed that petitioner had

several times testified inconsistently about key aspects of his claim for withholding. Petitioner

initially testified that he had been arrested and detained for over ten months by the government of

Mauritania while being beaten repeatedly. When later asked about the same event, petitioner

said that he had been deported on the same day he was arrested. JA 103-04. Petitioner attempted

to explain this discrepancy away by stating that he had not understood the question and thought it

was asking about the timing of his wife’s deportation. However, just a few moments earlier he


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had stated that he and his wife crossed the border to Senegal on different dates, clearly

distinguishing between the dates of his and his wife’s crossing. Id. The IJ thus found it “highly

likely that [petitioner] was never detained.” JA 54-55. This finding is not so unreasonable that

we are compelled to find otherwise. See 8 U.S.C. § 1252(b)(4)(B).

       In addition to these and other inconsistencies in petitioner’s testimony, the IJ noted that in

the intervening years there were changed country conditions in Mauritania. The State

Department’s Country Report, for instance, showed that, since the period of petitioner’s forced

deportation, thousands of expelled Mauritanians of persecuted ethnic groups, including

petitioner’s ethnic group, had returned to Mauritania. JA 107, 391; see Country Reports on

Human Rights Practices-2002, Mauritania, U.S. Department of State, Bureau of Democracy,

Human Rights, and Labor (Mar. 31, 2003). Moreover, the Mauritanian government now “is in

part comprised of individuals who are of the same ethnic group as is [petitioner],” several of

whom had been elected to or obtained high governmental offices. JA 57, 107. Such findings by

the IJ, based upon substantial evidence in the record, were well-reasoned and under our

deferential standard of review should not be overturned.

       We uphold, therefore, the IJ’s determination that petitioner “failed to sustain his burden

of proof and persuasion” as to withholding of removal. Since petitioner bases his CAT claim on

the same grounds as his request for withholding of removal, petitioner also fails to demonstrate

that upon return to Mauritania, it is more likely than not he would be tortured. Berri, 468 F.3d at

398. For the same reasons, we further uphold the IJ’s determination that petitioner failed to

demonstrate grounds for relief under the CAT.

III.   Due Process


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       Finally, petitioner claims that he was deprived of procedural due process because his

proceedings were conducted by video and because of his interpreter’s alleged incompetence. We

disagree. Petitioner’s able counsel points out several instances where certain statements were

repeated for the benefit of petitioner’s interpreter or petitioner himself, as well as instances where

pronunciations were an issue. However, none of these events deprived petitioner of the

procedural due process required by the Constitution. The situation is unlike that of Amadou v.

INS, 226 F.3d 724 (6th Cir. 2000). There, the interpreter and the petitioner spoke entirely

different dialects, and there were several times during the testimony when problems with the

dialects’ vocabulary, semantics, and coherence directly contributed to the interpreter’s confusion.

Id. at 725-27. Here, by contrast, the interpreter only asked that petitioner repeat discrete parts of

his testimony and slow down to allow him to interpret in moderated amounts. At no point does

the record indicate that the interpreter was incapable of interpreting the language petitioner spoke

or that he spoke a different dialect. Moreover, where there was any confusion vis-a-vis the

interpreter, it concerned testimony that was not critical or even relevant to the IJ’s ultimate

determination. Cf. id. at 727 (“The record indicates that the interpreter’s faulty translation

directly prejudiced [the petitioner]”).

       As for the effect of video conferencing the hearing, petitioner’s counsel only states

conclusorily that such medium had a detrimental effect on petitioner’s ability to be fully and

fairly heard. Pet. Br. at 12-13. We reject the argument; the record provides no indication

petitioner was prejudiced by the video conferencing. See Rusu v. INS, 296 F.3d 316, 324 (4th

Cir. 2002).

                                             *    *    *


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       We have considered petitioner’s remaining arguments and find them to be without merit.

For the foregoing reasons, the petition for review is dismissed insofar as concerns petitioner’s

application for asylum, and in all other respects it is denied.




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