                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 10a0116n.06

                                          No. 08-4020                                   FILED
                                                                                    Feb 22, 2010
                                                                               LEONARD GREEN, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

MAMADOU DIALLO,

       Petitioner,

v.                                                  ON PETITION FOR REVIEW FROM
                                                    THE BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., Attorney General,              APPEALS

       Respondent.

                                              /                       OPINION



BEFORE:        SILER, MOORE, and CLAY, Circuit Judges.

       CLAY, Circuit Judge. Petitioner Mamadou Diallo petitions this Court for review of a final

order of removal issued on September 30, 2008 by the Board of Immigration Appeals (“BIA”). The

Board affirmed an Immigration Judge’s (“IJ”) November 16, 2005 decision, which found Petitioner

removable as charged and denied his application for asylum, withholding of removal, and protection

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

Petition for Review insofar as it seeks review of the denial of asylum and in all other respects,

DENY the Petition for Review.

                             I. STATEMENT OF THE FACTS

       A.      Factual Background
                                           No. 08-4020

       Petitioner Mamadou Diallo is a native and citizen of Mauritania. He was born on January

12, 1974 and is a black member of the Fulani ethnic group. Diallo is married and has no children.

His father died in 1987 and his mother and sister were deported to Senegal in 1989.

       At his immigration hearing, Diallo testified that while at school on April 28, 1989, a group

of white Moor soldiers entered his classroom and arrested fifteen students, including himself. Diallo

stated that he was fifteen years old at the time and was held in a military camp for one month.

During captivity, Diallo asserts that he was mistreated—he was beaten, doused with cold water,

beaten on his chest, and forced to perform farm labor. Diallo also stated that he was handcuffed and

forced to wear leg irons while being repeatedly insulted.

       Petitioner testified that he escaped from the camp for one week, but was subsequently re-

arrested, badly beaten, and taken back to jail. Diallo said he was taken back to the same camp, where

he remained for two months. He stated that during this time, he was mistreated and tortured.

Specifically, he was forced to stand on hot stones and was beaten and kicked until he was bleeding.

       Diallo testified that he escaped again after two months and eventually crossed the river into

Senegal. He returned to Mauritania once to search for his mother and sisters, and learned that his

mother had been deported to Senegal. Diallo claims he was subsequently arrested again by the white

Moor soldiers in his hometown of Haire Galere. Diallo stated that this time, he was arrested along

with 20 other people and taken to the main prison in Babiba, Mauritania. He was again beaten,

handcuffed, and restrained with leg irons. This time, contends Diallo, he was held captive for four

years, forced to clean bathrooms and perform other similar tasks as a “chore boy.”




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                                            No. 08-4020

       Petitioner testified that he once again escaped and fled to Senegal, where he was reunited

with his family. He lived illegally in Senegal for a few years, then moved on to Mali and then to

Burkina Faso. Diallo claims he subsequently fled to the United States using a fraudulent passport

and a plane ticket, both of which were in the name “Amath Lom.” Petitioner contends that he

entered the United States on October 29, 1997. Diallo testified that upon his arrival, the immigration

officer looked at his passport and handed it back to him without asking any questions about the

purpose and length of his stay in the United States. He stated that since he fled to the United States,

the white Moors have confiscated his family farm in Mauritania. Diallo also testified that he

believes he would be killed if he returned to Mauritania today.

       Contrary to his testimony, Petitioner failed to list these arrests on his asylum application.

Moreover, the content of his initial asylum interview is disputed. According to the interviewer’s

notes, Diallo gave an entirely different account of events leading to his entry into the United States.

Specifically, according to the interviewer’s notes, Diallo stated that he was approached by a white

Moor man and two boys on the street. A struggle ensued between Diallo and one of the boys and

the boy tried to stab Diallo. Diallo claimed he stabbed the boy in self-defense and that the man

chased Diallo with a sword. As a result, stated Petitioner, he feared persecution in Mauritania

because he had injured the boy. During his testimony, however, Diallo expressly denied the

occurrence with the white Moor man and two boys noted during his asylum interview. Additionally,

the asylum interview notes indicate that Diallo claimed during the interview that he was forced to

serve as a “chore boy” for one week, instead of four years. Moreover, he testified that he attended




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                                            No. 08-4020

school in Mauritania from 1980 to 1989, but his asylum application listed these dates as 1989 to

1994.

        B.     Procedural History

        Diallo filed an application for asylum and withholding of removal on November 18, 1997.

After an interview, the Immigration and Naturalization Service (“INS”) declined to grant Diallo’s

application and on April 27, 2001, it served him with a Notice to Appear (“NTA”), charging him

with removability, pursuant to Section 237(a)(1)(A) of the Immigration and Nationality Act (“INA”),

as an alien admitted to the United States who was not in possession of a valid visa or other

documentation allowing him to cross the border. Diallo conceded removability at a Master Calendar

Hearing on August 2, 2001.

        A hearing was held via video conference on October 20, 2005. The IJ denied all of Diallo’s

claims for relief and ordered him to return to Mauritania. Diallo appealed to the BIA, which

affirmed the IJ’s decision. Diallo subsequently petitioned this Court for review.

                                        II. DISCUSSION

        A.     Standard of Review

        When, as in this case, the Board issues its own opinion, the Court reviews the BIA’s decision.

Koulibaly v. Mukasey, 541 F.3d 613, 619 (6th Cir. 2008). The Court must decide this petition based

on the administrative record. See 8 U.S.C. 1252(b)(4)(A) (“[T]he court of appeals shall decide the

petition only on the administrative record on which the order of removal is based.”). The Court

reviews de novo all legal determinations made by the BIA and affords substantial deference to the

BIA’s interpretation of the INA and accompanying regulations. Alhaj v. Holder, 576 F.3d 533, 537


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                                           No. 08-4020

(6th Cir. 2009). Factual findings must be sustained if “supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” Zoarab v. Mukasey, 524 F.3d 777, 780

(6th Cir. 2008) (quoting Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir. 1998)) (internal quotation

marks omitted). This Court may not reverse the BIA’s determination merely because it would have

decided the matter differently. Alhaj, 576 F.3d at 537. The Court must reverse, however, if the

evidence presented by Petitioner “not only supports a contrary conclusion, but indeed compels it.”

Klawitter v. INS, 970 F.2d 149, 152 (6th Cir. 1992) (quoting INS v. Elias-Zacarias, 502 U.S. 478,

481 n.1 (1992)).

       Adverse credibility findings are findings of fact reviewed under the substantial evidence

standard. Hamida v. Gonzales, 478 F.3d 734, 736 (6th Cir. 2007); Yu v. Ashcroft, 364 F.3d 700, 703

& n.2 (6th Cir. 2003). Such findings “are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Although an adverse credibility

finding is given substantial deference, the finding must be supported by specific reasons and must

be based on issues that go to the heart of the applicant’s claim, rather than “irrelevant

inconsistenc[ies].” Sylla v. INS, 388 F.3d 924, 926 (6th Cir. 2004) (quoting Daneshvar v. Ashcroft,

355 F.3d 615, 623 n.7, 619 n.2 (6th Cir. 2004)). If a discrepancy cannot be viewed as an attempt by

the applicant to enhance his claims of persecution, then it has no bearing on credibility. Singh v.

Ashcroft, 398 F.3d 396, 402 (6th Cir. 2005).

       B.      Asylum

       Aliens must “demonstrate[ ] by clear and convincing evidence that [their] application [for

asylum] has been filed within 1 year after the date of the alien’s arrival in the United States.” 8


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                                            No. 08-4020

U.S.C. § 1158(a)(2)(B).1 Pursuant to 8 U.S.C. § 1158(a)(3), “[n]o court shall have jurisdiction to

review any determination of the Attorney General under [8 U.S.C. § 1158(a)(2)].” This Court has

held that 8 U.S.C. § 1158(a)(3) “bar[s] our review of asylum applications denied for untimeliness

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.” Huang v. Mukasey, 523

F.3d 640, 650 (6th Cir. 2008) (quoting Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir.2006))

(internal quotation marks omitted).

       The BIA affirmed the IJ’s finding that Petitioner failed to meet his burden of demonstrating

by clear and convincing evidence that he filed his asylum application within one year of his arrival

in the United States. Consequently, the denial of Diallo’s asylum application was affirmed on that

basis. Petitioner argues that the “clear and convincing evidence” standard was erroneously applied

in his case because the record speaks for itself and clearly establishes that he entered the United

States on October 29, 1997 and filed his application for asylum on November 18, 1997. The

government asserts that Petitioner has failed to raise a constitutional or statutory construction

argument that would allow us to review Diallo’s argument regarding untimeliness.

       Because Diallo is arguing a factual error, the Court lacks jurisdiction regarding the timeliness

of Diallo’s asylum application. Petitioner asserts that he met the “clear and convincing evidence”

standard via his testimony and submission of documentation, i.e., a plane ticket indicating his date



       1
          An exception to this one-year requirement exists where there are “changed circumstances
which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating
to the delay in filing an application.” 8 U.S.C. § 1158(a)(2)(D). No such circumstances exist in this
case.

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                                            No. 08-4020

of entry. However, the IJ found Diallo’s testimony that an immigration officer looked at his passport

and handed it back to him, without asking any questions regarding the purpose and length of Diallo’s

stay in the United States, to be incredible and the BIA agreed. Moreover, the only evidence of his

arrival date that Diallo submitted was a plane ticket in the name of “Amath Lom.” Consequently,

Diallo failed to establish by clear and convincing evidence that he entered the United States on

October 29, 1997. On appeal, Diallo fails to raise a constitutional or statutory construction argument

with regard to this finding and instead, argues a factual error. Consequently, 8 U.S.C. § 1158(a)(3)

bars our review of the denial of Diallo’s asylum application for untimeliness.

       Even if, arguendo, we were to find that Diallo is raising a constitutional or statutory

construction argument, the Court would still lack jurisdiction because Diallo failed to exhaust his

claims regarding the timeliness of his asylum application. As this Court has previously stated, the

purpose of the exhaustion requirement set forth in 8 U.S.C. § 1252(d)(1) is “(1) to ‘ensure that the

INS, as the agency responsible for construing and applying the immigration laws and implementing

regulations, has had a full opportunity to consider a petitioner’s claims,’ (2) to ‘avoid premature

interference with the agency’s processes,’ and (3) to ‘allow the BIA to compile a record which is

adequate for judicial review.’” Ramani v. Ashcroft, 378 F.3d 554, 559 (6th Cir. 2004) (citations

omitted). Consequently, the Court can only review “claims properly presented to the BIA and

considered on their merits.” Ramani, 378 F.3d at 560.

       Petitioner failed in this case to raise a constitutional or statutory construction argument with

the BIA regarding the one-year filing requirement.          Because Diallo failed to exhaust his




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                                            No. 08-4020

administrative remedies, this Court lacks jurisdiction. An alien who is ineligible for asylum because

of the one-year bar may still seek withholding of removal.

       C.      Withholding of Removal

       To be eligible for withholding of removal under the INA, an alien must establish “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.” Rreshpja v. Gonzales,

420 F.3d 551, 557 (6th Cir. 2005) (citing 8 U.S.C. § 1231(b)(3)(A)). The alien must establish a

“clear probability of persecution.” INS v. Stevic, 467 U.S. 407, 413 (1984); Rreshpja, 420 F.3d at

557. This burden of proof is more stringent than the well-founded fear of persecution required to

establish eligibility for asylum. Rreshpja, 420 F.3d at 557.

       The BIA concluded that Petitioner was not a credible witness, resulting in the denial of his

withholding of removal claim. Petitioner contends that the BIA erroneously concluded that he was

not a credible witness. Specifically, Diallo argues that: (1) his failure to include certain details in

his asylum application does not negate his credibility at the hearing, (2) minor inconsistencies in an

asylum applicant’s testimony do not negate the applicant’s overall credibility, and (3) the

documentation he provided was adequate. Petitioner is correct that an asylum applicant need not

“provide an exhaustive, detailed list of [all incidents of persecution] in [his] asylum application.”

See Liti v. Gonzales, 411 F.3d 631, 638 (6th Cir. 2005). Petitioner is also correct that minor

inconsistencies do not negate his overall credibility—an adverse credibility finding must be based

on issues going to the heart of his claim. Sylla, 388 F.3d at 926.




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                                            No. 08-4020

       Nonetheless, a reasonable adjudicator would not be compelled to conclude that Diallo was

credible. See 8 U.S.C. § 1252(b)(4)(B). The BIA noted that although Diallo gave detailed testimony

regarding the events leading up to his arrival in the United States, he gave a completely different

account in his asylum interview.       Diallo testified about three separate arrests, periods of

mistreatment, and subsequent escapes, but did not mention most of these incidents in his asylum

interview. Instead, in his asylum interview, he gave an account of being approached by a white

Moor man and two boys on the street. A struggle ensued between Diallo and one of the boys and

the boy tried to stab Diallo. Diallo claimed he stabbed the boy in self-defense and that the man

chased Diallo with a sword. As a result, stated Petitioner, he feared persecution in Mauritania

because he injured the boy.

       In contrast, Diallo testified that he suffered multiple arrests in Mauritania because he is a

black Fulani, being held captive at times and forced to serve as a “chore boy” for a group of white

Moor soldiers. Diallo testified that the longest period of captivity lasted four or five years. In his

asylum interview, however, Diallo claimed that he was forced to serve as a “chore boy” for only one

week. Also, Diallo expressly denied the occurrence with the white Moor man and two boys noted

during his asylum interview.

       Petitioner argues that the BIA and the IJ improperly relied upon the asylum interview notes

to make a credibility finding. In support of this assertion, he cites Singh v. Gonzales, 403 F.3d 1081

(9th Cir. 2005). In Singh, the Ninth Circuit concluded that the Assessment to Refer utilized by the

IJ in that case “could not, ‘standing alone, [be considered] substantial record evidence supporting

the IJ’s adverse credibility ground.’” Koulibaly, 541 F.3d at 620 (quoting Singh, 403 F.3d at 1090)


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                                            No. 08-4020

(alteration in original). Here, however, there was not sole reliance on the notes from Diallo’s asylum

interview when determining that Diallo was incredible. The BIA found that the IJ properly

concluded that the asylum interview notes were sufficiently detailed to warrant some weight and

noted the IJ’s decision to give the notes less weight since the asylum interview was conducted in

English, which is not Diallo’s native language. The BIA noted that Diallo “provided conflicting

statements regarding the alleged mistreatment he experienced in Mauritania” and “failed to mention

[prior to hearing testimony, his] multiple arrests or periods of detention.”

        “Like affirmative inconsistencies, omissions may form the basis of an adverse credibility

determination, provided that they are substantially related to the asylum claim.” Liti, 411 F.3d at 637

(citations omitted). The heart of Diallo’s claim is that he was subjected to arrests and mistreatment

because he is a black Fulani, yet he failed to list any of the arrests in his application, including the

four-year detention he mentioned in his immigration hearing testimony. See Dashi v. Gonzales, 214

F. App’x 581, 585 (6th Cir. 2007) (“This omission is substantially related to the asylum claim

because it constituted an attempt on the part of Petitioners to embellish their persecution claim by

intensifying the severity of the [instances of persecution].”).

        We are not compelled to conclude that Diallo is credible. As a result, Diallo fails to establish

a clear probability that he will be persecuted upon returning to Mauritania. Because of the adverse

credibility ruling, Diallo also cannot meet the standard for protection under the CAT. Accordingly,

that claim fails as well.

                                        III. CONCLUSION




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                                          No. 08-4020

       For the reasons stated above, we DISMISS the Petition for Review insofar as it seeks review

of the denial of asylum and in all other respects, DENY the Petition for Review.




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