Assy Diouf v. Eric Holder, Jr.

388 F. App'x 525
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 6, 2010
Docket09-3548
StatusUnpublished

This text of 388 F. App'x 525 (Assy Diouf v. Eric Holder, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Assy Diouf v. Eric Holder, Jr., 388 F. App'x 525 (6th Cir. 2010).

Opinion

*526 COOK, Circuit Judge.

Assy Diouf, a citizen and native of the Republic of Congo, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). For the reasons set forth below, we dismiss Dioufs asylum claim and deny her petition.

I.

While the Republic of Congo was in the throws of a civil war, Diouf alleges that rebels stormed her house, raped her, and beat her family. Although she and her family then moved to a different part of the same region, rebels attacked again two years later, raping Diouf, murdering her father, and fatally injuring her mother. From a refugee camp in Zaire, Diouf managed to enter the United States using a false passport. After arriving in New York, a man named Seydou Sy drove her to Ohio and helped her fill out an asylum application.

An unfavorable ruling resulted. In the absence of corroborating evidence regarding her arrival date — together with adverse credibility findings — the IJ held that Diouf failed to establish a timely filing and therefore denied the asylum petition. The IJ also rejected her claims of persecution as not credible. In addition to noting an unresponsive and insincere demeanor, the IJ identified multiple contradictions in Dioufs story: she provided four different dates on which she claimed her father was killed; she indicated at one point that she had no siblings, but later claimed that rebels raped her brother during an attack; and she inconsistently testified about her father’s injuries and the number of times she was raped. Although Diouf insists that Sy bears responsibility for the miscues, she confirmed under oath that her applications were accurate and that Sy read the original asylum application back to her before she signed it. The IJ also alternatively found that Diouf failed to show persecution on account of a protected ground or that she could not relocate safely within the Republic of Congo. 1 The BIA affirmed, and Diouf petitioned for review.

II.

A.

“Where the Board affirms the IJ’s ruling but adds its own comments, we review both the IJ’s decision and the Board’s additional remarks.” Karimijanaki v. Holder, 579 F.3d 710, 714 (6th Cir.2009). “Credibility determinations are considered findings of fact, and are reviewed under the substantial evidence standard.” Sylla v. INS, 388 F.3d 924, 925 (6th Cir.2004). “ ‘Under this deferential standard, the court may not reverse the Board’s determination simply because we would have decided the matter differently.’ ” Zhao v. Holder, 569 F.3d 238, 247 (6th Cir.2009) (quoting Koulibaly v. Mukasey, 541 F.3d 613, 619 (6th Cir.2008)). We “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.” Haider v. Holder, 595 F.3d 276, 281 (6th Cir.2010) (quotation marks and citations omitted).

B.

We first dispense with Dioufs asylum request on jurisdictional grounds. This court lacks authority to review “asylum *527 applications denied for untimeliness ... when the appeal seeks review of discretionary or factual questions.” Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir.2006). Because Diouf does not raise any constitutional or statutory issues concerning timeliness, only her requests for withholding of removal and protection under the CAT are before this court. See id.

C.

To prevail on a petition for withholding of removal, Diouf must show a clear probability that removal to the Republic of Congo would subject her to persecution on account of membership in a protected category, which she can demonstrate through a claim of past persecution. Id. at 749-50. For CAT protection, Diouf “bears the burden of establishing it is more likely than not that ... she would be tortured if removed to the proposed country of removal.” Id. at 749 (quotation marks and citations omitted). The IJ rejected Dioufs claim of past persecution and torture upon finding her not credible. Diouf disputes this adverse-credibility finding. Because Diouf filed her application before the REAL ID Act of 2005 took effect, Pub.L. 109-13, 119 Stat. 231, the “adverse credibility finding must be based on issues that go to the heart of the applicant’s claim. They cannot be based on an irrelevant inconsistency. If discrepancies cannot be viewed as attempts by the applicant to enhance [her] claims of persecution, they have no bearing on credibility.” Sylla, 388 F.3d at 926 (quotation marks and citations omitted).

In assessing Dioufs credibility, the IJ found that “the respondent’s demeanor on the witness stand is not suggestive of one who is being candid,” and described her as “[frequently nonresponsive.” Specifically, Diouf repeatedly evaded questions from both her own counsel and the Government. We accord this type of finding great deference. See Diallo v. Holder, 312 Fed.Appx. 790, 801 (6th Cir.2009) (“The IJ is in the best position to determine credibility based on the demeanor of the witness and the presentation of testimony.”); see also Paramasamy v. Ashcroft, 295 F.3d 1047, 1050 (9th Cir.2002) (Courts “accord credibility findings, and particularly the IJ’s demean- or findings, substantial deference.”). Diouf contends that a lack of education and the stress of formal proceedings accounted for her unresponsiveness. Although this explanation might seem plausible, it does not “meet the high standard of compelling a contrary result.” Yu v. Ashcroft, 364 F.3d 700, 704 (6th Cir.2004). Moreover, the IJ posed simple questions, and Diouf never claimed that she could not understand them — she simply was unresponsive.

Additionally, underpinning the credibility determination, the IJ identified multiple inconsistencies relating to Dioufs alleged suffering in the Republic of Congo that went to the heart of her claim. She provided conflicting dates of her father’s death during the persecution that allegedly motivated her departure from the Republic of Congo. Dioufs initial application listed 1999, a later application September 8, 2000, and her personal statement yet another date, September 15, 2000. On this point too, her testimony varied.

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Koulibaly v. Mukasey
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