               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 11a0614n.06
                                                                                        FILED
                                          No. 09-3157
                                                                                   Aug 24, 2011
                          UNITED STATES COURT OF APPEALS                     LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


DOUSSOU HADJIRATOU KABA,                    )                    ON APPEAL FROM THE
                                            )                    BOARD OF IMMIGRATION
      Petitioner,                           )                    APPEALS
                                            )
              v.                            )
                                            )
ERIC H. HOLDER, JR., Attorney General,      )
                                            )                    OPINION
      Respondent.                           )
___________________________________________ )

Before: WHITE and STRANCH, Circuit Judges, and COHN,* District Judge.

       HELENE N. WHITE, Circuit Judge. Doussou Hadjuratou Kaba (Kaba), a native and

citizen of Guinea, seeks asylum, withholding of removal, and protection under the Convention

Against Torture (CAT). The Immigration Judge (IJ) and the Board of Immigration Appeals (BIA)

denied Kaba’s applications. Kaba seeks review of the BIA’s decision. We AFFIRM.

                                                I.

       Kaba entered the United States on April 1, 2000. She filed her asylum application with the

Department of Homeland Security (DHS) on April 2, 2003. In her application, Kaba alleged that

she “spent 13 months in jail,” during which time she was “raped [and] injured,” and that when she

was released from jail she “was ordered to move out of the country.” Kaba stated that she believed



       *
       The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation.

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she was arrested and jailed because she was an active member of “Alpha Konse’s party.” She

claimed that she was afraid of being subjected to torture if returned to Guinea because “[t]he same

government which sent [her] away, which tortured [her], [was] still there . . . .”

       On March 3, 2004, the DHS issued a Notice to Appear (NTA) charging Kaba with

removability under section 237(a)(1)(A) of the Immigration and Nationality Act (INA), 8 U.S.C. §

1227(a)(1)(A).   Kaba appeared with counsel before an IJ in Arlington, Virginia, conceded

removability, and stated that she was seeking asylum, withholding of removal, and protection under

the CAT.

       On April 12, 2007, following several continuances and at least one failure to appear,1 Kaba

appeared at her merits hearing without counsel. The IJ observed that Kaba had been represented by

two successive attorneys, that her case had “been pending for a long time[,] and [that she] [had] had

sufficient time to get a lawyer.” As a result, the IJ decided to proceed with Kaba’s case. Kaba

apparently declined the assistance of an interpreter and testified in English. Before taking Kaba’s

testimony, the IJ accepted several documents into evidence, including a letter from Kaba’s ex-




       1
         Kaba failed to appear for her first hearing before the IJ on June 15, 2004, and was ordered
removed in absentia. On August 27, 2004, Kaba, with the assistance of her first counsel, moved to
reopen her proceedings before the Immigration Court. The IJ granted Kaba’s motion on September
14, 2004. Kaba’s proceedings were then continued until June 16, 2006. On October 15, 2005,
Kaba’s first counsel withdrew. On May 2, 2006, Kaba, with the assistance of her second counsel,
filed a motion for a continuance. Kaba’s proceedings were subsequently continued until April 12,
2007. On March 19, 2007, Kaba’s second counsel moved to withdraw. The IJ granted this motion
on March 29, 2007.

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boyfriend, which was typed in English and dated March 30, 2000,2 a membership card for the

“Rassemblement Du Peuple De Guinee” (RPG) party, and a Guinean identification card.

       In support of her applications for asylum, withholding of removal, and protection under the

CAT, Kaba testified that she was born in Conakry, Guinea on November 11, 1979. She completed

high school and attended college for one year. Kaba’s parents were deceased, but her stepmother

was still alive and residing in Guinea. She also had a nine-year old daughter who was living in

Guinea with Kaba’s sister. Her daughter’s father, who was not the ex-boyfriend referred to in the

letter, was living in Europe. Kaba stated that while she lived in Guinea, she did not have to work;

her mother owned a great deal of land and some houses, and Kaba and her sister supported

themselves by collecting rent for these properties. After Kaba left Guinea, her sister took over the

management of their mother’s assets.

       According to Kaba, she was a “[l]ittle bit” involved in politics in Guinea, and she was a

member of the RPG party. Each school had an RPG party group, and she joined her school’s group

in 1997. Kaba did not hold any official position in the party, and she only attended one party-

sponsored event – a meeting in the stadium of Kaba’s high school where the president of the RPG

was supposed to speak – which occurred at the end of 1999. Between 100 to 200 people attended

this meeting, but the police prevented the president of the RPG from speaking and arrested a number

of the attendees, including Kaba. Kaba testified that she was “beaten” when she was inside the



       2
        Kaba explained that she was submitting this letter to show “that it wasn’t her plan to come
and stay [in the United States].” She said that “I came here because I thought things were going to
change after I left so I [could] go back because we were supposed to get married there . . . .”

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police truck, stating “when they w[ere] getting me in the truck, they . . . pull[ed] me [by] my feet and

two guys, one holding [my] feet [and the other holding my] hand[s,] [threw me] inside the truck

where other people[] [were already waiting].”

        Kaba testified that she was taken to jail, where she was locked in a cell with nine other

women. She stated that she remained in jail for three days, and that she and the other women were

treated well during the day, receiving food and water, but not as well during the night-time hours,

as the guards were present during that time. Kaba said that on her second night in jail she was raped

by a guard. Two guards took her from her cell to the guard-room and one guard raped her while the

other guard prevented her from screaming and hit her when she attempted to cry out. Kaba was then

brought back to her cell. The following afternoon, she and the other women in her cell were released

from jail.

        Kaba testified that following her release she had to stay at a friend’s house because the home

where she had been living with her sister and her daughter had been destroyed by rebels belonging

to a different political party.3 Her sister and daughter went to live with Kaba’s stepmother. Kaba

stated that she felt humiliated about her rape during this time. Kaba further testified that

approximately two months after she was released from jail, in February 2000, she left her friend’s

house and traveled to Nigeria, where she had a contact who had promised to help her leave Guinea.

Upon arriving in Nigeria, Kaba paid the contact’s sister to obtain a passport that she could use to


        3
        Kaba stated that these rebels would destroy houses owned by persons with whose opinions
they disagreed, but the relationship between Kaba’s RPG party membership and the destruction of
her family’s home is unclear, as her party participation was minimal and her sister was not an RPG
party member.

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enter the United States and a plane ticket to the United States. Kaba testified that after spending four

days in Nigeria, she returned to Guinea because the ticket she had purchased was for a plane leaving

from Conakry.

        According to Kaba, on March 31, 2000, she flew out of Conakry and, following several stops,

landed in New York. Kaba’s passport was checked at the airport, but she was not detained. Kaba

testified that the brother of the woman whose passport she had purchased was supposed to pick her

up from the airport, but he never came to get her. As a result, Kaba called Alpha Konate (Konate),

a high school friend who was attending school in New York, and Konate’s uncle picked her up from

the airport. Kaba stated that she subsequently lived in New Jersey for seven months before moving

to Columbus, Ohio.

        In explaining why she waited so long to file her asylum application, Kaba testified that she

did not know how to obtain an asylum application, that she was eventually introduced to an

unidentified individual whom she paid $150 to obtain an application, and that this individual filled

out and signed an application for her. Kaba stated that the allegation in her application that she was

in jail for thirteen months was not true, and that the person who filled out her application “was

supposed to do what I said but he did not.” When asked whether she had a fear of returning to

Guinea, Kaba responded “[f]or now, yes,” explaining that “the government is still there. . . .They

destroy everything you have.” Kaba also stated “I’m not asking to stay permanently in [the United

States]. I’m just asking permission to stay until things change in my country.”

        Following Kaba’s testimony, the IJ rendered an oral decision denying Kaba’s applications

for asylum, withholding of removal, and protection under the CAT. In a written decision, the IJ

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found Kaba not credible based on the inconsistencies between her testimony and the information in

her asylum application and her ability to speak and write English and her claim that someone else

filled out her application. The IJ also determined that Kaba’s asylum application was untimely, that

she did not present any evidence of changed circumstances or extraordinary circumstances, and that

ignorance of the filing deadline was no excuse. Further, the IJ stated that Kaba did not present

credible evidence or corroborating evidence when it was available in support of her asylum

application. Lastly, the IJ found that Kaba failed to meet her burden of proving past persecution or

a well-founded fear of future persecution with respect to her asylum application. Based on this

finding, the IJ determined that Kaba failed to satisfy the higher standard required for withholding

of removal. The IJ also concluded that Kaba failed to present any evidence that it was more likely

than not that she would be tortured if forced to return to Guinea.

       Kaba timely appealed the IJ’s decision to the BIA with the assistance of counsel. On January

22, 2009, the BIA dismissed the appeal. The BIA adopted and affirmed the IJ’s conclusion that

Kaba’s asylum application was time-barred – a conclusion that Kaba had not challenged on appeal.

It also found that the IJ’s adverse credibility determination was not clearly erroneous. Thus, the BIA

concluded that even if Kaba’s asylum application was timely, she had not met her burden of

establishing eligibility for asylum or “the higher standard regarding her claim for withholding of

removal.” Finally, the BIA agreed with the IJ that Kaba was ineligible for protection under the CAT.

Kaba seeks review of the BIA’s decision.

                                                 II.



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       Kaba argues that the IJ and the BIA erred in finding that (1) her testimony was not credible;

(2) she did not sufficiently corroborate her persecution with credible evidence; and (3) she did not

establish a well-founded fear of future persecution. The government, in turn, claims that Kaba has

(1) failed to exhaust her administrative remedies regarding the IJ’s decision that her asylum

application was untimely; (2) waived her claim for protection under the CAT; and (3) failed to show

that the record evidence compels a conclusion contrary to the IJ’s and the BIA’s adverse credibility

finding, which was the basis for denying Kaba’s withholding of removal claim.

       “Because the BIA adopted the IJ’s decision with additional commentary, we review the

decision of the IJ, as supplemented by the BIA, as the final administrative order.” Acquaah v.

Holder, 589 F.3d 332, 334 (6th Cir. 2009) (citation omitted). “We review the IJ’s and BIA’s

findings for substantial evidence and may reverse only if the decision was ‘manifestly contrary to

law,’ that is, if the evidence ‘not only supports a contrary conclusion, but indeed compels it.’” Cruz-

Samayoa v. Holder, 607 F.3d 1145, 1149 (6th Cir. 2010) (citations omitted) (emphasis in original).

                                                  A.

       The INA “requires that an asylum applicant ‘demonstrate[ ] by clear and convincing evidence

that [her asylum] application [was] filed within 1 year after the date of [her] arrival in the United

States.’” Vincent v. Holder, 632 F.3d 351, 352 (6th Cir. 2011) (citing 8 U.S.C. § 1158(a)(2)(B)).

“This requirement is subject to exceptions in cases where the ‘alien demonstrates to the satisfaction

of the Attorney General either the existence of changed circumstances which materially affect the

applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an

application within’ the required one-year period.” Id. at 352-53 (citing 8 U.S.C. § 1158(a)(2)(D)).

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Section 1158 also “creates a jurisdictional bar to review of the timeliness issue: ‘[n]o court shall have

jurisdiction to review any determination of the Attorney General’ regarding whether changed or

extraordinary circumstances exist to excuse the filing of an asylum application beyond one year after

[the alien’s] arrival in the United States.” Id. at 353 (citing 8 U.S.C. § 1158(a)(3)). However, this

bar applies “only when the appeal seeks review of discretionary or factual questions, but not when

the appeal seeks review of constitutional claims or matters of statutory construction.” Id.

        Kaba contended that her asylum application was two years late because she did not know

where to obtain the application, indicating that she was ignorant of the one-year filing deadline. The

IJ found that Kaba did not present any evidence of changed or extraordinary circumstances, and

ignorance of the filing deadline was no excuse. As the BIA pointed out, Kaba, who was represented

by an attorney before the BIA, did not appeal the IJ’s determination regarding the late filing of

Kaba’s asylum application. Moreover, although Kaba contends in her pro se opening brief that she

did not timely apply for asylum “because of [her] barrier of language,” she does not argue in her

supplemental brief, which was filed by counsel, that the IJ erred in finding her asylum application

to be untimely.

        We lack jurisdiction to consider Kaba’s argument regarding the timeliness of her asylum

application because she failed to exhaust it below. See Gilaj v. Gonzales, 408 F.3d 275, 289 (6th

Cir. 2005) (“Only those claims that have been properly presented to the BIA and considered on their

merits can be reviewed by the court in an immigration appeal.”). In any event, we are barred from

considering this claim because it concerns a factual dispute, and not a constitutional question or an

issue of statutory construction. See Vincent, 632 F.3d at 353; see also Lybesha v. Holder, 569 F.3d

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877, 881 (8th Cir. 2009) (holding that an argument concerning ignorance of asylum laws or

application filing deadlines is a factual one); Magdalena v. Attorney Gen. of the U.S., 139 F. App’x

467, 469 (3d Cir. 2005) (concluding that the court lacked jurisdiction to review the issue whether

“language and cultural barriers” excused the late filing of asylum applications). As a result, we

decline to review the IJ’s denial of Kaba’s asylum application as untimely.

                                                 B.

       The only remaining questions on appeal concern the denial of Kaba’s application for

withholding of removal.4 To prevail on such a claim, a petitioner must demonstrate that she faces

a “clear probability” of “persecution” based on her “race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); Pablo-Sanchez v. Holder,

600 F.3d 592, 594 (6th Cir. 2010) (citations omitted). The “clear probability” standard is more

demanding “than the ‘reasonable possibility’ standard for obtaining asylum because it requires the

applicant to show that ‘it is more likely than not’ that [her] life or freedom would be threatened by

persecution if [s]he returned to [her] home country.” Pablo-Sanchez, 600 F.3d at 594 (citation

omitted). An adverse credibility determination is fatal to a withholding of removal claim in the

absence of other evidence. See El-Moussa v. Holder, 569 F.3d 250, 257 (6th Cir. 2009).




       4
         Kaba also asked for protection under the CAT, which both the IJ and the BIA denied.
However, Kaba does not mention her CAT claim in her supplemental brief except to request, at the
conclusion of the brief, that “the decision of the Immigration Judge be reversed and [Kaba] be
granted relief under the Convention Against Torture.” Because Kaba fails to develop any argument
in favor of her CAT claim, we deem it waived. McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir.
1997).

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       The new standards adopted by the REAL ID Act of 2005 for credibility determinations do

not apply here because Kaba filed her asylum application prior to May 11, 2005. See Ikharo v.

Holder, 614 F.3d 622, 634 (6th Cir. 2010). Credibility determinations are considered findings of

fact, and are reviewed under the substantial evidence standard. Yu v. Ashcroft, 364 F.3d 700, 703

(6th Cir. 2004). An “immigration judge’s conclusion must be supported by specific reasons and

must be based upon issues that go to the heart of the applicant’s claim. In other words, if

discrepancies cannot be viewed as attempts by the applicant to enhance his claims of persecution,

they have no bearing on credibility.” Ceraj v. Mukasey, 511 F.3d 583, 591 (6th Cir. 2007) ( citations

and quotation marks omitted).

       Here, Kaba wrote in her asylum application that she was jailed for thirteen months but

testified at the merits hearing that she was jailed for three days.        When asked about this

inconsistency, Kaba stated that she had hired someone to fill out the asylum application for her and

provided this person with the appropriate information, but this person did not complete the

application exactly as directed. The IJ and the BIA found Kaba not credible based on the

discrepancy between the information in Kaba’s asylum application and Kaba’s testimony.

Additionally, the IJ and the BIA found unpersuasive Kaba’s explanation that someone else filled out

her asylum application based on her level of education and her ability to speak and read English.

       The record in this case does not compel a finding contrary to the IJ’s and the BIA’s adverse

credibility determination. An inconsistency does not necessarily mean that the petitioner is

exaggerating or dissembling. Nevertheless, the IJ and the BIA had sufficient grounds to so find. The

IJ and the BIA’s conclusion that Kaba was not credible was supported by specific reasons and the

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relevant discrepancy could be viewed as an attempt by Kaba to enhance her claim of persecution.

There was a significant discrepancy regarding the length of Kaba’s detention. Moreover, contrary

to Kaba’s testimony at the merits hearing, Kaba’s asylum application states that her uncle, Ely

Fofona, assisted her in completing her application and the section of the application containing the

“declaration of person preparing form if other than applicant, spouse, parent or child” is left blank.

Even if it is assumed that Kaba did hire someone to fill out her asylum application, it is difficult to

believe that she was unable to review the completed application based on her demonstrated

knowledge of English and evidence showing that she was able to at least read, if not write, English

at the time of the application’s filing. Thus, we affirm the IJ’s and the BIA’s adverse credibility

determination.5

                                                  C.

       Even if a petitioner is found to be credible, “where it is reasonable to expect corroborating

evidence for certain alleged facts pertaining to the specifics of an applicant’s claim, such evidence

should be provided . . . . The absence of such corroborating evidence can lead to a finding that an

applicant has failed to meet her burden of proof.” Lin v. Holder, 565 F.3d 971, 977 (6th Cir. 2009)


       5
         In connection with this claim, Kaba also argues that because she was not represented by
counsel, she did not receive “proper advise regarding her claim to asylum.” Kaba also claims in her
pro se opening brief that her proceedings should have been continued because she did not have a
lawyer at the time of the merits hearing. However, Kaba did not present these claims to the BIA, and
therefore we lack jurisdiction to consider them in the first instance. See Bi Xia Qu v. Holder, 618
F.3d 602, 609 (6th Cir. 2010). Moreover, Kaba received several continuances during the two years
prior to her merits hearing, and she in fact hired two successive attorneys, each of whom ultimately
withdrew from representing her. We are also foreclosed from considering Kaba’s allegation that the
IJ did not allow for a Fulani translator to be present at the merits hearing because Kaba did not
present this claim to the BIA.

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(citations omitted). The IJ’s “determination regarding the availability of corroborating evidence will

not be reversed ‘unless the court finds . . . that a reasonable trier of fact is compelled to conclude that

such corroborating evidence is unavailable.’” Id. (citations omitted).

        In support of her asylum application, Kaba presented an identification card, an RPG party

card, and a letter from her ex-boyfriend that provided no information relevant to Kaba’s claim. The

IJ noted in the decision denying Kaba’s applications that Kaba failed to submit corroborating

evidence such as letters from her sister, the friend she stayed with after being released from jail, and

the friend whose uncle picked her up from the airport.

        On appeal, Kaba argues that “neither the IJ nor the BIA discussed or even mentioned the

evidence submitted by []Kaba.” Indeed, the BIA did not discuss the issue of corroborating evidence

in its opinion. However, the IJ did, and we review this portion of the final administrative order.

Acquaah, 589 F.3d at 334. Moreover, the documents submitted by Kaba prove nothing beyond that

she was a member of the RPG party at some point in time, and there is no indication in the record

that the corroborating evidence mentioned by the IJ was not available. Thus, we uphold the IJ’s

determination regarding the availability of corroborating evidence.

                                                    D.

        Because the IJ and the BIA did not err in finding that Kaba was not credible, Kaba fails to

satisfy the burden of proof for withholding of removal.

                                                   III.

        In light of the foregoing discussion, we AFFIRM the BIA’s decision denying Kaba’s

applications for asylum, withholding of removal, and protection under the CAT.

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        Jane B. Stranch, Circuit Judge, concurring. I concur in the result in this case and all its

reasoning save reliance on the BIA’s finding that Kaba was not credible. Kaba’s petition for review

is correctly dismissed based on the agency’s determination that she failed to present reasonably

available corroborating evidence. Therefore, it is unnecessary to affirm the adverse credibility

determination of the IJ’s and BIA and, in my opinion, preferable not to do so. I cannot view Kaba’s

testimony that she spent three days in prison as an attempt to enhance her claims of persecution. Had

Kaba been disposed to self-serving lies, she would have testified that she was in prison for thirteen

months, thus conforming her testimony with the petition and enhancing the possibility of being

granted relief. Instead, Kaba testified that her petition statement contained an error. That testimony

has all the indicia of truth, just as the petition statement has all the indicia of a scrivener’s error or

an error of translation by someone for whom English is a third language. I would not affirm the

adverse credibility finding of the BIA as I believe it discourages aliens from testifying truthfully in

removal proceedings.




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