                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0274n.06

                                            No. 09-3031                                   FILED
                                                                                      May 04, 2010
                           UNITED STATES COURT OF APPEALS
                                                                                LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


ZEIROUB LY,                                                )
                                                           )
       Petitioner,                                         )        ON PETITION FOR REVIEW
                                                           )        OF AN ORDER OF THE
               v.                                          )        BOARD OF IMMIGRATION
                                                           )        APPEALS
ERIC H. HOLDER, JR., United States Attorney                )
General,                                                   )
                                                           )
      Respondent.                                          )
__________________________________________                 )



BEFORE: GIBBONS and GRIFFIN, Circuit Judges; and DOWD, Senior District Judge.*

       GRIFFIN, Circuit Judge.

       Zeiroub Ly seeks review of an order of the Board of Immigration Appeals (“BIA”) affirming

an immigration judge’s (“IJ”) denial of his claims for asylum, withholding of removal, and

protection under the United Nations Convention Against Torture (“CAT”). For the reasons that

follow, we affirm the BIA’s decision and deny Ly’s petition for review.

                                                  I.

       Ly, a native and citizen of Mauritania, was admitted to the United States with a false passport

in January 2000 and, later that year, filed a pro se affirmative application for asylum and withholding

of removal. Thereafter, the Immigration and Naturalization Service (now the Department of

       *
         The Honorable David D. Dowd, Jr., Senior United States District Judge for the Northern
District of Ohio, sitting by designation.
No. 09-3031
Ly v. Holder


Homeland Security or “DHS”) served Ly with a notice to appear (“NTA”), charging him with

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

1227(a)(1)(A). Ly admitted the factual allegations in his NTA, conceded his removability as

charged, and, through his newly retained counsel, filed an amended application for asylum and

withholding of removal based on race, political opinion, and membership in a particular social group,

and for protection under the CAT.

       On August 14, 2007, a hearing on the merits of Ly’s claims for relief was held before an IJ.

Ly testified that he was persecuted in Mauritania because of his Fulani ethnicity and his active

membership in the student group known as the Association des Etudiants Pulaar (“AEP”), which

sought “to reform the Arab-dominated educational system to benefit Blacks.” Ly also stated that his

father was an active member of an opposition political party and a group which educated workers

about their rights in Mauritania.

       In early 1989, Ly and five other students were arrested and jailed for five days because of

their participation in an AEP strike for educational reform. While incarcerated, Ly was falsely

accused of being a member of a different political opposition group known as the Front de Liberation

des Africains de Mauritanie (“FLAM”) and was beaten and tortured.1

       In April 1989, during the conflict between Mauritania and Senegal, Ly, his father, and his two

brothers were arrested at their home by government agents because of their Fulani ethnicity. They



       1
        While Ly was not a FLAM member, his older brother and uncle were members of the
organization.

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Ly v. Holder


were imprisoned for five days and then placed in a military camp. There, Ly was kept in a three-

meter square cell housing nine people, interrogated by officials who accused him of being a FLAM

member, beaten, tortured, and starved.

       In November 1989, Ly and the other Fulani prisoners were released from the military camp,

taken to a river on the Mauritania/Senegal border, and ordered to swim to Senegal. Ly swam to

Senegal, where he was rescued by Senegalese authorities and sent to a refugee camp. Ly lived in

Senegal until 2000.2

       In 1993, the Mauritania/Senegal border was reopened, and Ly made three or four brief trips

to Mauritania between 1993 and 1998 to trade goods.3 While visiting Mauritania, Ly was not

arrested, although he claims the Mauritanian police frequently followed him. Ly was able to obtain

a passport in Mauritania.

       Ly stated that if he returns to Mauritania, he will be arrested, jailed, forced into slavery,

tortured, or killed because of his past political activities and affiliations, his Fulani ethnic

background, and his skin color. He alleged that racism pervades Mauritanian society. Ly testified

that his sister lives in Mauritania and is sometimes afraid to talk to him on the phone because she

fears that others could be listening.

       In his asylum application and at the merits hearing, Ly represented that he would be willing


       2
        During his time in Senegal, Ly did not have lawful status and never applied for refugee
status because he was afraid that members of the Mauritanian secret police would discover his
whereabouts.
       3
           Ly’s visits to Mauritania did not exceed six months.

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Ly v. Holder


to return to Mauritania if the military regime were no longer in power and democracy were

established. While Ly conceded that the military no longer controlled the Mauritanian government

following the recent election of a new president, he testified that the political system still had not

changed.

       Immediately following the hearing, the IJ entered an oral decision denying Ly’s requests for

asylum, withholding of removal, and CAT protection. Although the IJ deemed Ly to be credible and

found that he had been persecuted in Mauritania in 1989 based upon his race, ethnicity, and imputed

political opinion, the IJ ruled that the DHS had successfully rebutted the presumption of future

persecution based upon its evidence of changed country conditions in Mauritania. The IJ described

this evidence as follows:

       The background information indicates that, while Mauritania’s human rights record
       has remained poor, there have been significant improvements recently. It also notes
       that the presidential elections were scheduled for March of 2007. Picking up on that
       thread, the DHS’s submission . . . indicates that those presidential elections have, in
       fact, occurred and that [the] opposition candidate was elected president and [the]
       opposition party won the greatest share of seats in the Parliamentary voting. [A]
       Washington Post article[] indicates that economists and former Minister Sidi
       Mohamed Ould Cheikh Abdallahi has been elected Mauritania’s president in historic
       polls, which opened a new era of civilian democracy in the Arab-African Islamic
       state. The election of a civilian head of state sealed the democratic handover by a
       military junta, which took power in the former French colony in a 2005 coup. . . .
       European [U]nion and U.S. observers said that the vote had gone smoothly and held
       it as the freest ever in Mauritania. The document also indicates that a U.S. Embassy
       official indicates that [he or she] can affirm that the elections went ahead in a
       credible, fair and transparent manner and that the election success makes Mauritania
       a democratic model for both Africa and the Arab world. Other documents . . .
       indicate that a coalition of parties [who] opposed the Mauritania’s ousted dictator
       [won] the largest share of seats in the country’s new Parliament and that the coalition
       of parties that had opposed former President Taya won 41 seats overall and that
       independent candidates won 39 seats, in contrast to Taya’s party, which won only 7

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Ly v. Holder


         seats.

(Internal citations omitted.) From this evidence, the IJ found that “a fundamental change has

occurred in Mauritania as a result of both Parliamentary and presidential elections[,]” that

“Mauritania has transitioned toward a democratic state[,]” and that “this change is fundamental in

the conditions that appear in that country.”

         The IJ also found that Ly no longer had a well-founded fear of persecution as evidenced by:

his voluntary business trips to Mauritania between 1993 and 1998, his ability to obtain a

government-issued passport in Mauritania, and his testimony that he would return to Mauritania if

the prior military regime were no longer in power and democracy were established.

         On December 24, 2008, the BIA dismissed Ly’s appeal, ruling that he lacked a well-founded

fear of persecution because his persecution occurred twenty years ago, and he voluntarily returned

to Mauritania three or four times between 1993 and 1998 and was not harmed. The BIA also agreed

with the IJ that the 2006 country report for Mauritania indicated that conditions had fundamentally

changed and noted the report’s statement that “most returnees received their original homes, some

property, and all or a portion of their land.” (Citation and internal quotation marks omitted.) The

BIA concluded: “While there is certainly evidence in the record of racial discrimination in

Mauritania, we cannot conclude [Ly] faces a ‘discernable’ chance of persecution on account of his

race.”

         Thereafter, Ly retained new counsel, and timely filed the pending petition for review.

                                                 II.


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       Ly argues that we should vacate the BIA’s denial of his requests for asylum, withholding of

removal, and CAT protection, remand for further proceedings, and stay his deportation.

       “Where the BIA reviews the immigration judge’s decision and issues a separate opinion,

rather than summarily affirming the immigration judge’s decision, we review the BIA’s decision as

the final agency determination. To the extent the BIA adopted the immigration judge’s reasoning,

however, this Court also reviews the immigration judge’s decision.” Khalili v. Holder, 557 F.3d

429, 435 (6th Cir. 2009) (internal citation omitted).

       We review questions of law de novo and factual findings under the substantial evidence

standard. Khalili, 557 F.3d at 435. Under this test, factual findings must be sustained if they are

“supported by reasonable, substantial, and probative evidence on the record considered as a whole.”

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). The findings “are conclusive unless any reasonable

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

words, “[w]e cannot reverse such findings simply because we would have decided them differently.”

Khalili, 557 F.3d at 435.

       An alien seeking asylum must establish that he is a “refugee,” which is defined as one who

is “unwilling or unable to return to” his country “because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership in a particular social group, or

political opinion . . . .” 8 U.S.C. §§ 1158(b)(1)(B)(I) & 1101(a)(42)(A). “Proof of past persecution

raises a rebuttable presumption of a well-founded fear of persecution.” Mohammed v. Keisler, 507

F.3d 369, 371 (6th Cir. 2007) (citing 8 C.F.R. § 208.13(b)(1)). However, the government may rebut


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this presumption if it shows that “[t]here has been a fundamental change in circumstances” in the

applicant’s home country so that he no longer has a well-founded fear of persecution. 8 C.F.R. §

208.13(b)(1)(i)(A). To rebut the presumption based on changed country conditions, the government

must establish by a preponderance of the evidence that:

       conditions in the applicant’s country have changed to such an extent that the
       applicant no longer has a well-founded fear of being persecuted upon return. The
       [government] must do more than show that circumstances in the country have
       fundamentally changed; [it] must also show that such change negates the particular
       applicant’s well-founded fear of persecution.

Ouda v. INS, 324 F.3d 445, 452 (6th Cir. 2003).

       “If the government rebuts the presumption, the applicant must demonstrate a well-founded

fear of future persecution notwithstanding the changed country conditions.” Mapouya v. Gonzales,

487 F.3d 396, 412 (6th Cir. 2007) (citation and internal quotation marks omitted). “A well-founded

fear of persecution has both a subjective and an objective component: the [applicant] must actually

fear that he will be persecuted upon return to his country, and he must present evidence establishing

an ‘objective situation’ under which his fear can be deemed reasonable.” Pilica v. Ashcroft, 388 F.3d

941, 950 (6th Cir. 2004) (citation omitted). To meet this requirement, the applicant need not “show

that he probably will be persecuted if he is deported; ‘one can certainly have a well-founded fear of

an event happening when there is less than a 50% chance of the occurrence taking place.’” Id. at

950-51 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987)).

       To qualify for withholding of removal, an applicant must demonstrate that it is “more likely

than not” that his “life or freedom would be threatened in [the] country [to which he would be


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No. 09-3031
Ly v. Holder


removed] because of [his] race, religion, nationality, membership in a particular social group, or

political opinion.” 8 U.S.C. § 1231(b)(3)(A). Because this standard is more stringent than the “well-

founded fear” of persecution standard applicable to asylum claims, an applicant who fails to establish

that he is a “refugee” eligible for asylum will necessarily fail to qualify for withholding of removal.

Abay v. Ashcroft, 368 F.3d 634, 637 (6th Cir. 2004). If the applicant establishes past persecution,

it is presumed that his life or freedom will be threatened in the future. 8 C.F.R. § 208.16(b)(1)(i).

Like asylum relief, that presumption can be rebutted if the IJ finds that there has been a fundamental

change in circumstances in the proposed country of removal or that the applicant could reasonably

be relocated to another part of that country, such that his life or freedom would not be threatened.

8 C.F.R. § 208.16(b)(1)(i)(A)-(B) & (b)(1)(ii).

        Under the Convention Against Torture, removal must be withheld if “it is more likely than

not that [the applicant] would be tortured if removed to the proposed country of removal.” 8 C.F.R.

§ 208.16(c)(2). Unlike asylum and withholding of removal, no protected-ground nexus is required

to obtain relief under the CAT. Almuhtaseb v. Gonzales, 453 F.3d 743, 751 (6th Cir. 2006). Torture

is “an extreme form of cruel and inhuman treatment[.]” 8 C.F.R. § 1208.18(a)(2). Specifically, it

is “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted”

to extract information, punish, intimidate, coerce, or otherwise discriminate, “when such pain or

suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official

or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). “In assessing whether it

is more likely than not that an applicant would be tortured in the proposed country of removal, all


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Ly v. Holder


evidence relevant to the possibility of future torture shall be considered, including, but not limited

to”: past torture, the applicant’s ability to relocate to an area of the country of removal where he

would not likely be tortured, and violations of human rights in the country of removal. 8 C.F.R. §

208.16(c)(3)(i)-(iii).

                                                  III.

        Ly asks that we take judicial notice of an August 2008 military coup in Mauritania, in which

the military, led by former president Taya, ousted the civilian president, imprisoned him, and has

been persecuting Mauritanians like Ly. He identifies two online news articles and the 2008 country

report for Mauritania which, according to Ly, undermine the BIA’s and IJ’s findings of changed

conditions in Mauritania because they demonstrate that the transformations which occurred in

Mauritania in 2007 were “superficial” only.

        Ly cites no authority permitting us to take judicial notice of these alleged events, and the law

is clear that we lack jurisdiction to consider claims that were not administratively exhausted. 8

U.S.C. § 1252(d)(1). In this regard, we may consider only “the administrative record on which the

order of removal is based,” 8 U.S.C. § 1252(b)(4)(A); we may not supplement the administrative

record with additional evidence. 8 U.S.C. § 1252(a)(1) (providing that reviewing court may not

consider additional evidence). Accordingly, we do not take judicial notice of the alleged coup, nor

do we consider the news articles and Mauritania’s 2008 country report that were not part of the

administrative record or considered by the BIA and IJ. See Lin v. Holder, 565 F.3d 971, 978-79 (6th

Cir. 2009) (refusing to take judicial notice of a country report because it was outside the


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administrative record).

       Moreover, Ly did not raise the issue of the recent country reports before the BIA and has not

filed a motion to remand requesting further factfinding. As noted by the government, “If Mr. Ly

believed that the Board could not have properly resolved his appeal without further fact finding, Mr.

Ly could have filed a motion to remand or motion to reopen with the agency. See 8 C.F.R. §

1003.1(d)(3)(iv) (“A party asserting that the Board cannot properly resolve an appeal without further

factfinding must file a motion for remand.”).

                                                IV.

       Ly argues that substantial evidence does not support the BIA’s and IJ’s findings that (1) there

was a fundamental change in country conditions in Mauritania, (2) he lacked a well-founded fear of

future persecution, and (3) he would not be tortured if removed to Mauritania.

       Although the BIA and IJ found that Ly was persecuted in Mauritania, they held that he lacked

a well-founded fear and probability of future persecution, as well as a likelihood of torture, if he

returned. They gave the following reasons: his persecution and torture occurred almost twenty years

ago, he voluntarily made several business trips to Mauritania between 1993 and 1998 and was not

harmed, he was able to obtain a government-issued passport in Mauritania, he testified that he would

return to Mauritania if the prior military regime were no longer in power and democracy were

established, and the legal presumption of a well-founded fear of future persecution stemming from

Ly’s past persecution was rebutted by the documentary evidence in the record, including the country

reports and internet news articles, establishing changed conditions in Mauritania with the free


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No. 09-3031
Ly v. Holder


election of a civilian president.

        Based upon the evidence made a part of the administrative record, we hold that substantial

evidence supports the BIA’s and IJ’s findings and the record does not compel a contrary conclusion.

In this regard, we note that an applicant’s return trips to the proposed country of removal, without

harm, particularly when coupled with a significant passage of time since the persecution occurred,

undermines his claim of future persecution. See Belayneh v. INS, 213 F.3d 488, 491(9th Cir. 2000)

(holding that the petitioner did not have a well-founded fear of persecution, in part, because she

made three return trips to her home country, “without incident[,]” and the persecution occurred “a

quarter century ago”); Kopyonkina v. Mukasey, 313 F. App’x 762, 770 (6th Cir. 2008) (unpublished)4

(“‘An applicant’s claim of persecution upon return is weakened, even undercut, . . . when the

applicant has returned to the country without incident.’”) (quoting Hakeem v. INS, 273 F.3d 812, 816

(9th Cir. 2001)) (internal quotation marks and citation omitted).

        Moreover, an applicant’s ability to obtain a government-issued passport may undermine his

eligibility for asylum and withholding of removal. See Rodriguez-Rivera v. INS, 848 F.2d 998, 1006

(9th Cir. 1988) (per curiam) (stating that petitioner’s procurement of “a passport from the

government . . . [is] relevant in assessing a request for asylum or withholding of deportation and

further undercut[s] [his] claims of a well-founded fear of governmental persecution.”); Kane v.

Gonzales, 236 F. App’x 178, 184 (6th Cir. 2007) (unpublished) (implying that the petitioner’s


        4
         Unpublished opinions of this court are not precedentially binding under the doctrine of stare
decisis but may be considered for their persuasive value. United States v. Sanford, 476 F.3d 391,
396 (6th Cir. 2007).

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“freedom to depart from Mauritania[] with the apparent blessing of the government” is a factor

supporting the IJ’s finding that he lacked a fear of future persecution based upon his past

persecution).

       Finally, we have recently upheld findings that, because of changed country conditions in

Mauritania, applicants lacked objective fears of future persecution there. See Koita v. Mukasey, 314

F. App’x 839, 843-44 (6th Cir. 2009) (unpublished) (holding that the free elections held in

Mauritania in 2006 and 2007 constituted “substantial evidence support[ing] the BIA’s determination

that conditions in Mauritania have fundamentally changed.”); Sy v. Mukasey, 278 F. App’x 473, 476

(6th Cir. 2008) (unpublished) (“Improving conditions in Mauritania since [the petitioner’s]

departure, however, doom his [asylum] petition.”); Sall v. Gonzales, 239 F. App’x 975, 981 (6th Cir.

2007) (unpublished) (“The 2003 State Department Report states that many of the former refugees

have returned to Mauritania, that the Mauritanian government is cooperating with humanitarian

groups to assist returning refugees, and that the government has returned property to many of the

refugees[,]” thereby “support[ing] the BIA’s determination that changed circumstances bar [the

petitioner’s] application for asylum.”). While Mauritania may still have broad social and political

shortcomings in need of improvement, as the BIA observed, these deficiencies do not suggest a well-

founded fear or likelihood that Ly will be persecuted or tortured. See Mapouya, 487 F.3d at 412 (“If

the government rebuts the presumption, the applicant must demonstrate a well-founded fear of future

persecution notwithstanding the changed country conditions.”).

                                                V.


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       Ly also argues that the BIA and IJ violated his procedural due process right to a fair hearing

because their rulings were allegedly based upon unclear findings. He maintains that the IJ’s finding

of changed country conditions in Mauritania “was predicated on [the IJ’s] finding that the fair

elections in Mauritania in 2007 had moved the country in the direction of a democratic state. But

the [IJ] completely ignored the facts stated in the Country Reports that Blacks and members of

minority ethnic groups like the Fulanis continue to be subject to enslavement and other social abuses

as well as to limitations upon their right to vote.”

       We lack jurisdiction over Ly’s due process challenge to the IJ’s ruling. In his appellate brief

to the BIA, Ly did not argue a due process violation, even though the BIA could have corrected any

that may have existed by remanding the case to the IJ for further factual findings. Therefore, Ly’s

due process claim was not properly exhausted, and we do not consider it now. 8 U.S.C. §

1252(d)(1); Alizoti v. Gonzales, 477 F.3d 448, 451 (6th Cir. 2007) (“[T]his Court lacks jurisdiction

to review any issues that have not been raised and administratively exhausted below”); Sterkaj v.

Gonzales, 439 F.3d 273, 279 (6th Cir. 2006) (“Although an alien’s due process challenge generally

does not require exhaustion (the BIA lacks authority to review constitutional challenges), the alien

must raise correctable procedural errors to the BIA,” or appellate review of those claims is

precluded). In any event, it is apparent that Ly’s argument is merely a challenge to the sufficiency

of the evidence under the guise of a due process argument.

       Regarding the BIA’s ruling, Ly asserts that the BIA’s use of the word “discernable” in its

finding that he does not “face[] a discernable chance of persecution on account of his race” was


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Ly v. Holder


unclear as to whether it was “a term of art or of legal significance.” In addition, he argues that the

BIA erroneously limited its analysis to the single protected ground of race, despite the IJ’s finding

of past persecution based upon the three protected grounds of race, ethnicity, and imputed political

opinion. Finally, Ly contends that the BIA erred in applying a “clearly erroneous” standard of review

to the IJ’s finding of changed country conditions and should have reviewed that ruling de novo.

       Due process rights under the Fifth Amendment to the United States Constitution extend to

aliens in deportation proceedings. Denko v. INS, 351 F.3d 717, 726 (6th Cir. 2003) (citing Reno v.

Flores, 507 U.S. 292, 306 (1993)). We review claims of due process violations in such proceedings

de novo, Denko, 351 F.3d at 726, and hold that the BIA committed no procedural due process errors.

       Although Ly argues that the BIA’s ruling was limited to one protected ground – race – the

following omnibus language in the final paragraph of the BIA’s written order plainly suggests no

such circumscription: “[T]here is insufficient evidence to conclude that the respondent possesses

an objectively well-founded fear of future persecution.” Likewise, there are no indications that the

BIA applied the incorrect legal standard of review or that its use of the word “discernable”

demonstrates that the BIA misunderstood the appropriate law, which we presume it applied. Pilica,

388 F.3d at 949 (“Absent evidence to the contrary, this Court presumes that the BIA applied the

correct standard of review”) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,

415 (1971), overruled in part by, Califano v. Sanders, 430 U.S. 99 (1977)).

                                                 VI.

       For these reasons, we affirm the BIA’s decision and deny Ly’s petition for review.


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