Hamet Sall v. Eric Holder, Jr.

Filing

Per Curiam OPINION filed : DISMISSED in part and DENIED in part the petition for review, decision not for publication. Alice M. Batchelder, Chief Circuit Judge; Eugene E. Siler , Jr., Circuit Judge and Bernice Bouie Donald, Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0617n.06
No. 13-4242

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

HAMET SALL,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

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Aug 13, 2014
DEBORAH S. HUNT, Clerk

ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
APPEALS

BEFORE: BATCHELDER, Chief Judge; SILER and DONALD, Circuit Judges.

PER CURIAM. Hamet Sall petitions for review of an order of the Board of Immigration
Appeals (BIA) dismissing his appeal from an immigration judge’s (IJ) denial of his application
for asylum, withholding of removal, and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), Apr. 18,
1988, 108 Stat. 382, 1265 U.N.T.S. 85. We DISMISS in part and DENY in part the petition for
review.
Sall, a native and citizen of Mauritania, claims to have entered the United States on
February 28, 2003. In October 2003, he filed an application for asylum, withholding of removal,
and CAT protection, claiming that he had been arrested and beaten for his political activities and
that he feared continued mistreatment if he returned to Mauritania.

The Department of

Homeland Security subsequently served Sall with a notice to appear, charging that he was

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subject to removal as a noncitizen who entered the United States without a valid visa or other
entry document, in violation of Section 237(a)(1)(A) of the Immigration and Nationality Act.
After a merits hearing in 2011, the IJ denied relief and ordered Sall’s removal to
Mauritania. The IJ found that Sall was not credible and failed to provide sufficient evidence
corroborating his claims. As a result, the IJ concluded that Sall failed to demonstrate that his
asylum application was filed within one year of his arrival in the United States and failed to
establish past persecution or a well-founded fear of future persecution. Alternatively, the IJ
concluded that, even if Sall had timely filed his application, testified credibly, and established
past persecution, his asylum application would be denied based on changed circumstances
because conditions in Mauritania have “dramatically improved” for Afro-Mauritanians. Finally,
the IJ concluded that Sall, having failed to satisfy his burden of proof for asylum, necessarily
failed to meet the higher standard for withholding of removal and CAT protection.
The BIA affirmed the IJ’s decision. The BIA agreed with the IJ that Sall did not show by
clear and convincing evidence that his asylum application was timely filed, and it found no clear
error in the IJ’s determination that Sall was not credible and failed to provide reasonably
available corroborating evidence.
In his petition for review, Sall challenges the denial of his applications for asylum and
withholding of removal. But “we have jurisdiction to review asylum applications denied for
untimeliness only when the appeal seeks review of constitutional claims or matters of statutory
construction, not when the question is discretionary or factual.”

Khozhaynova v. Holder,

641 F.3d 187, 191 (6th Cir. 2011) (citation and internal quotation marks omitted). Because Sall
raises no constitutional or statutory issue, disputing only the agency’s credibility and evidentiary
determinations, we lack jurisdiction to consider his asylum application. See id. at 191-92.

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To qualify for withholding of removal, an applicant must establish a clear probability that
his life or freedom would be threatened in the proposed country of removal because of his race,
religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C.
§ 1231(b)(3)(A); Khozhaynova, 641 F.3d at 192-93. When, as here, the BIA issued a separate
decision rather than summarily affirming the decision of the IJ, “we review the BIA’s decision as
the final agency determination. To the extent [that] the BIA adopted the [IJ]’s reasoning,
however, we also review the IJ’s decision.” Hachem v. Holder, 656 F.3d 430, 437 (6th Cir.
2011) (citation and internal quotation marks omitted) (alterations omitted). We review factual
findings, including the adverse credibility determination, for substantial evidence, reversing
“only if any reasonable adjudicator would be compelled to conclude to the contrary.” Id. at 434.
Similarly, we will reverse a “determination regarding the availability of corroborating evidence”
only if we find “that a reasonable trier of fact is compelled to conclude that such corroborating
evidence is unavailable.” Abdurakhmanov v. Holder, 735 F.3d 341, 347 (6th Cir. 2012) (citation
and internal quotation marks omitted).
Because Sall filed his application prior to the effective date of the REAL ID Act of 2005,
Pub. L. No. 109-13, 119 Stat. 302, the agency’s adverse credibility determination “must be
supported by specific reasons and must be based upon issues that go to the heart of [his] claim.”
Id. at 345 (citation and internal quotation marks omitted).

In upholding the IJ’s adverse

credibility determination, the BIA focused on two inconsistencies identified by the IJ, the first of
which involved the date that Sall was arrested for his involvement in a student strike. Sall
testified that he was arrested on November 4, 1998, while his friend Wane Ibrahima, in a
translated letter, identified the date of the strike as October 9, 1998. In his petition for review,
Sall argues for the first time that there was a translation error and the letter in fact identified the

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date as October 29, not October 9. Because Sall did not raise this argument before the BIA, it is
not exhausted, and we cannot consider it. See Sterkaj v. Gonzales, 439 F.3d 273, 279 (6th Cir.
2006) (“[T]he alien must raise correctable procedural errors to the BIA.”); see also 8 U.S.C.
§ 1252(d)(1). Moreover, Sall offered the translated copy of the letter into evidence, testified that
he had read it, and did not explain the discrepancy when asked about it on cross-examination.
Accordingly, while Sall’s interpretation of the letter is plausible, it does not render the IJ’s
contrary determination unreasonable. See Shkabari v. Gonzales, 427 F.3d 324, 330 (6th Cir.
2005).

The BIA also cited a significant inconsistency regarding Sall’s departure from

Mauritania; while Sall stated in his application that he left Mauritania in February 2003 and did
not travel through any other country before entering the United States, he testified before the IJ
that he left Mauritania in December 2002 and spent approximately two months in Senegal before
leaving for the United States. In light of these and other inconsistencies identified by the IJ, the
record does not compel a contrary conclusion regarding Sall’s lack of credibility. See id. at 33031.
In any event, even assuming Sall’s credibility, the record does not compel the conclusion
that he could not reasonably obtain evidence to corroborate his claims.

See 8 U.S.C.

§§ 1229a(c)(4)(B), 1252(b)(4)(D); Abdurakhmanov, 735 F.3d at 347. When “it is reasonable to
expect corroborating evidence for certain alleged facts pertaining to the . . . 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 [his] burden of proof.” Lin v. Holder, 565 F.3d 971,
977 (6th Cir. 2009) (citation and internal quotation marks omitted); see 8 U.S.C.
§ 1158(b)(1)(B)(ii). Sall testified that he was arrested, detained, and subjected to mistreatment
on at least two occasions: the first for three months following the November 1998 strike, and the

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second in December 2001 (or January 2002) for four months.

The only other evidence

supporting this testimony was Ibrahima’s letter, which indicated that Sall was struck by the
police during a student strike, not that he was detained and mistreated for several months.
Accordingly, even setting aside the discrepancy regarding the date, this letter does little to
substantiate Sall’s claims. And even if it was unreasonable for the IJ to expect Sall to obtain
letters from his parents, who could not read or write, the BIA reasonably determined that Sall
could have obtained letters from his brother, wife, or uncle. See Dorosh v. Ashcroft, 398 F.3d
379, 382-83 (6th Cir. 2004) (holding that the applicant could reasonably have provided letters or
statements from friends and family to corroborate her claim). Before this court, Sall contends
that a letter from his wife would have been of little use because she had “very little or no
personal knowledge of his persecution which started in 1998.” But according to his testimony,
Sall was detained for four months beginning in December 2001 or January 2002, and according
to his application, he and his wife were married on December 24, 2001. Accordingly, this
explanation is not persuasive.
Given the adverse credibility determination and the lack of other evidence supporting
Sall’s claims, the record does not compel a conclusion that the BIA erred by denying his
application for withholding of removal. By failing to challenge the denial of his request for
relief under the CAT, Sall has abandoned that claim. See Patel v. Gonzales, 470 F.3d 216, 219
(6th Cir. 2006).
For these reasons, we DISMISS in part and DENY in part the petition for review.

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