Eihadj Balde v. William P. Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 25, 2020
• Docket: 18-70796
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 25 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

EIHADJ OUSMANE BALDE, No. 18-70796

Petitioner, Agency No. A213-077-593

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted June 23, 2020**

Before: HAWKINS, GRABER, and BYBEE, Circuit Judges.

Petitioner Eihadj Ousmane Balde, a native and citizen of Guinea, petitions

for review of a decision of the Board of Immigration Appeals (BIA) dismissing his

appeal from the denial of his applications for asylum, withholding of removal, and

protection under the Convention Against Torture (CAT). He argues that the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). immigration judge (IJ) erred in finding his testimony not credible, not allowing

him to present original copies of certain documents, and finding that he had not

satisfied his burden of proof for CAT protection.

1. We review adverse credibility determinations for substantial evidence. See

Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014). As a finding of fact, a credibility

determination is “conclusive unless any reasonable adjudicator would be

compelled to conclude the contrary.” Manes v. Sessions, 875 F.3d 1261, 1263 (9th

Cir. 2017) (per curiam) (internal quotation marks omitted). An adverse credibility

determination alone, when properly based on substantial evidence, is enough to

support the denial of asylum. See Shrestha v. Holder, 590 F.3d 1034, 1048 n.6

(9th Cir. 2010).

Substantial evidence supports the adverse credibility determination here.

The IJ articulated multiple internal inconsistencies in Balde’s testimony, as well as

inconsistencies between Balde’s testimony and the record evidence. For example,

Balde was inconsistent in his testimony about when and where he met his

boyfriend, whether they kissed in public, whether they lived together, and whether

he told a family member about the relationship. These were not the type of minor

inconsistencies that would not ordinarily support an adverse credibility finding.

See Ren v. Holder, 648 F.3d 1079, 1087 (9th Cir. 2011) (explaining that minor

2 inconsistency voluntarily corrected in the moment is not sufficient to support an

adverse credibility finding).

2. Balde also argues that the IJ erred by not allowing him to present the

original version of certain documents. This is a challenge to a “correctable

procedural error” that Balde failed to present to the BIA. Agyeman v. INS, 296

F.3d 871, 877 (9th Cir. 2002). Accordingly, the issue is not exhausted and this

court lacks jurisdiction to review it. Sanchez-Cruz v. INS, 255 F.3d 775, 780 (9th

Cir. 2001).

3. Because Balde failed to establish eligibility for asylum, he necessarily failed

to establish eligibility under the more stringent standard for withholding of

removal. See Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir. 2000).

4. Finally, the record does not compel the conclusion that Balde is eligible for

protection under CAT. See Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir. 2003)

(finding denial of protection under CAT supported by substantial evidence where

based on the same testimony properly found to be not credible below). Balde

presented country conditions evidence, but there is no evidence in the record to

compel the conclusion that Balde will be tortured. See Delgado-Ortiz v. Holder,

600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam) (holding that generalized

3 evidence that is not particularized to the applicant is insufficient to establish CAT

eligibility).

PETITION DENIED.