                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 10a0438n.06

                                          No. 09-3475
                                                                                    FILED
                          UNITED STATES COURT OF APPEALS
                                                                                 Jul 20, 2010
                               FOR THE SIXTH CIRCUIT                       LEONARD GREEN, Clerk



AHAMADOU CHEBOUN,                                       )
                                                        )
       Petitioner,                                      )       ON PETITION FOR REVIEW
                                                        )       OF AN ORDER OF THE
v.                                                      )       BOARD OF IMMIGRATION
                                                        )       APPEALS
ERIC H. HOLDER, JR., Attorney General,                  )
                                                        )
       Respondent.                                      )
                                                        )



BEFORE:       SUTTON and McKEAGUE, Circuit Judges; JONKER, District Judge.*

       McKeague, Circuit Judge. Ahamadou Cheboun petitions this court to review the denial

of his application for asylum and withholding of removal by the Immigration Judge (“IJ”) and the

Board of Immigration Appeals (“BIA”). For the following reasons, we DISMISS the petition insofar

as it seeks review of the determination that Cheboun’s application for asylum was untimely. We

DENY the remainder of the petition.

                                               I.

       Ahamadou Cheboun, a male native of Mauritania, filed an application for asylum and

withholding of removal in April of 2002, having entered this country without valid documentation.

The application claimed that Cheboun entered the United States via New York JFK airport on



       *
       The Honorable Robert J. Jonker, United States District Judge for the Western District of
Michigan, sitting by designation.
No. 09-3475
Cheboun v. Holder

August 7, 2001, after experiencing torture and persecution at the hands of the Mauritanian

government for his involvement in the Union Democratic Forces political movement. The

application stated that Cheboun feared torture and death if he were to return to Mauritania. An

asylum officer referred Cheboun’s application to an IJ after determining that Cheboun failed to

demonstrate by clear and convincing evidence that he had filed the application within one year of

entry into this country.

       A removal proceeding hearing was held before an IJ on August 28, 2006. At the proceeding,

Cheboun sought asylum, withholding of removal, and protection under the Convention Against

Torture. As part of the hearing, Cheboun filed an updated application for asylum and included

supporting articles and reports outlining the poor human rights record in Mauritania. Cheboun

testified at the hearing that he left Mauritania on June 20, 2001, after participating in an illegal

political demonstration a few days earlier. Cheboun stated that as a result of his participation in the

demonstration, he was imprisoned for three days. He also recounted a period of imprisonment in

1996 as a result of his participation in a political opposition movement. During this imprisonment,

Cheboun claimed that he was beaten. In addition, Cheboun stated that he was arrested and

imprisoned in 1998 and was beaten and forced to drink salt water. Cheboun testified that he entered

this country on July 7 or 8, 2001, with the aid of a smuggler who supplied a passport to him in

exchange for $1,500. The smuggler seized the passport from Cheboun after he passed through

customs, and then took Cheboun to a mosque in Brooklyn. Cheboun eventually made his way to

Ohio and was residing there at the time of the hearing.



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       After hearing testimony, the IJ issued a written decision denying Cheboun’s request for

asylum, withholding of removal, and protection under the Convention Against Torture and ordered

Cheboun removed to Mauritania. The IJ first determined that Cheboun failed to meet his burden of

demonstrating by clear and convincing evidence that he entered the United States on August 7, 2001,

as was required to meet the one year filing deadline for his application for asylum. Specifically, the

IJ noted that Cheboun failed to produce any travel documents establishing his date of entry, provided

vague answers about the trip, and was unable to recall the airline on which he flew. In addition, the

IJ pointed out that Cheboun testified that he entered the country in either July or August, 2001, but

his asylum application reported the date of entry as August 7, 2001. Thus, the IJ denied Cheboun’s

application for asylum as untimely.

       As to his application for withholding of removal, the IJ found that Cheboun was not credible.

The IJ noted material inconsistencies between Cheboun’s testimony and application for withholding

of removal related to his explanation of his imprisonments, entry into the United States, and

biographical information about his spouse and children. In addition, the IJ found that Cheboun’s

demeanor during testimony undermined his credibility because Cheboun laughed at inappropriate

times and spoke rapidly when confronted with inconsistencies. According to the IJ, these

inconsistencies went to the heart of Cheboun’s persecution claim. Further, Cheboun failed to

provide additional corroborating documents to support his persecution claim, which prompted the

IJ to deny his application for withholding of removal. The IJ also denied protection under the

Convention Against Torture for the same reasons stated in the denial of withholding of removal.



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       Cheboun appealed the IJ’s decision to the BIA. The BIA dismissed the appeal for the same

reasons stated in the IJ’s decision. Specifically, the BIA found that Cheboun failed to establish that

he filed his application for asylum within one year of entering this country. In addition, the BIA

upheld the IJ’s adverse credibility determination due to material inconsistencies between Cheboun’s

testimony and application for withholding of removal.

       Cheboun now petitions this court to review the BIA’s final order. He alleges error in the

adverse credibility determination and seeks a reversal of the BIA’s order denying his application for

asylum and withholding of removal. Cheboun does not challenge the BIA’s decision as it relates to

his claim for protection under the Convention Against Torture. Our analysis is therefore confined

to the denial of his application for asylum and withholding of removal.

                                                  II.

       We begin by addressing the determination of both the BIA and the IJ that Cheboun failed to

establish timely filing of his application for asylum. An applicant bears the burden of establishing

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

this country. 8 U.S.C. § 1158(a)(2)(B). The application may still be considered, notwithstanding

the applicant’s failure to satisfy the one year filing requirement, if the applicant demonstrates

changed circumstances which materially affect his eligibility for asylum. Id. at § 1158(a)(2)(D).

When the IJ determines that the applicant failed to demonstrate that he filed the application within

the one year filing period, this court lacks jurisdiction to review the decision, unless the petitioner

raises a constitutional claim or an issue of statutory construction. El-Moussa v. Holder, 569 F.3d

250, 254 (6th Cir. 2009); Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006). This court

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lacks jurisdiction to review claims that raise discretionary or factual questions regarding the

timeliness of a filing. El-Moussa, 569 F.3d at 255.

       The IJ in the present case found that Cheboun failed to demonstrate that he filed his

application within one year of entry because Cheboun failed to produce travel documents

establishing when he entered the country and he provided different dates of entry. This finding was

reinforced by the BIA when it dismissed Cheboun’s appeal. In this court, Cheboun has not alleged

constitutional error or error in statutory construction. Instead, he challenges the untimeliness finding

as it relates to the IJ’s adverse credibility determination. Because Cheboun seeks review of factual

determinations only, we lack jurisdiction to consider this portion of the petition. El-Moussa, 569

F.3d at 255. Accordingly, we dismiss Cheboun’s petition insofar as it seeks review of the denial of

his application for asylum as untimely.

                                                  III.

       Cheboun also seeks review of the IJ’s adverse credibility determination as it relates to his

request for withholding of removal. When the BIA adopts the reasoning of the IJ and adds additional

comments, “we review the IJ’s decision directly while also considering the Board’s additional

analysis.” El-Moussa, 569 F3d. at 255. In reviewing credibility determinations, we apply the

substantial evidence standard, and we will overturn a factual credibility determination only if the

evidence to the contrary compels a different conclusion. Kaba v. Mukasey, 546 F.3d 741, 747 (6th

Cir. 2008).

       The REAL ID Act permits immigration judges to base adverse credibility determinations on

any inconsistency or inaccuracy, regardless of whether the inconsistency goes to the heart of the

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Cheboun v. Holder

applicant’s claim. 8 U.S.C. § 1158(b)(1)(B)(iii); Id. at 749 n.1. However, this new standard applies

only to applications for asylum filed after May 11, 2005. Id. Because Cheboun’s initial application

was filed in 2002, the standard in place prior to the passage of the REAL ID Act applies to his case.

Id. Under this standard, an adverse credibility determination must be founded on inconsistencies that

go to the heart of the applicant’s claim, rather than irrelevant inconsistencies. Ndrecaj v. Mukasey,

522 F.3d 667, 674 (6th Cir. 2008). An inconsistency goes to the heart of the applicant’s claim if it

can be viewed as an attempt to enhance the persecution claims. Id. at 674–75. In making an adverse

credibility determination, the IJ may consider all relevant factors, including an applicant’s demeanor

and the plausibility of his statements. Id. at 674. An adverse credibility determination must be

supported by specific reasons. Kaba, 546 F.3d at 749.

       The IJ in this case listed five specific inconsistencies between Cheboun’s testimony and his

application for withholding of removal. The BIA recounted these inconsistencies in its dismissal

of Cheboun’s appeal. Cheboun argues that the variances between his testimony and application are

not inconsistencies and that they do not go to the heart of his persecution claim. We first note that

some of the inconsistencies listed by the IJ involve Cheboun’s failure to provide sufficient detail in

his application for withholding of removal. This court has specifically stated that “the mere failure

of a petitioner to include every detail . . . in the application [] should not be considered fatal to a

petitioner’s request for relief.” Kaba, 546 F.3d at 749. However, the IJ also noted that Cheboun

gave varying accounts of the duration of his imprisonments. In addition, the IJ found that Cheboun’s

testimony about his arrival to the United States was inconsistent with the explanation that he

provided to the Asylum Office. These inconsistencies go to the heart of Cheboun’s persecution

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claim and are supported by substantial evidence. See Ndrecaj, 522 F.3d at 674–75 (stating that an

inconsistency goes to the heart of an applicant’s claim if it can be viewed as enhancing the claim).

        The IJ also found Cheboun incredible based on his demeanor while testifying. Cheboun

argues that the IJ improperly relied on speculation and personal beliefs in basing the adverse

credibility determination on his demeanor. He cites our decision in Alexandrov v. Gonzales, 442

F.3d 395 (6th Cir. 2006), to support his argument. In Alexandrov, this court determined that an

adverse credibility determination was not supported by substantial evidence because the

determination was based on the immigration court’s personal belief about how long beatings and

detentions should last. Id. at 408–09. The IJ’s demeanor determination in this case was not based

on personal belief as was the case in Alexandrov. Instead, the IJ in this case noted that Cheboun

appeared “nervous” and “used faster speech patterns when confronted with inconsistencies.” An

adverse credibility determination can be premised on the applicant’s demeanor, and we will not

lightly discard this determination given the IJ’s unique opportunity to observe the applicant.

Abdulahad v. Holder, 581 F.3d 290, 294–95 (6th Cir. 2009). Accordingly, we find no reason to

disturb the IJ’s determination on Cheboun’s demeanor, and we therefore deny Cheboun’s petition

insofar as it seeks review of the adverse credibility determination.

                                                IV.

        For the foregoing reasons, we DISMISS Cheboun’s petition to the extent that it seeks review

of the IJ’s determination on the timeliness of his application for asylum. We DENY the remainder

of the petition.



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