Ibrahima Thiaw v. Eric Holder

356 F. App'x 877
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 18, 2009
Docket08-4077
StatusUnpublished

This text of 356 F. App'x 877 (Ibrahima Thiaw v. Eric Holder) 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.

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Ibrahima Thiaw v. Eric Holder, 356 F. App'x 877 (6th Cir. 2009).

Opinion

KETHLEDGE, Circuit Judge.

Ibrahima Thiaw petitions for review of the Board of Immigration Appeals’ decision affirming the denial of his application for asylum and withholding of removal. We dismiss his petition in part and deny it in part.

I.

Thiaw is a native and citizen of Mauritania, and a member of its Fulani ethnic group. According to Thiaw, ethnic Moor soldiers attacked his village in 1989, capturing and beating the men. Among other things, the soldiers burned Thiaw’s leg in hot ashes and killed his father. Thiaw thereafter escaped to Senegal, where his mother and other relatives had been deported. He remained there for 11 or 12 years.

Thiaw claims to have first arrived in the United States in June or July 2001. He filed an application for asylum and withholding of removal on December 28, 2001. He voluntarily left the United States in November 2003 to visit his sick mother in Senegal. He returned from that trip on December 28, 2003, using a passport and visa that belonged to his cousin but that had been altered to bear Thiaw’s photograph.

An asylum officer interviewed Thiaw in May 2005. During the interview, Thiaw said he arrived in the United States by boat, at Baltimore, Maryland in June 2001. He did not disclose his 2003 departure. The officer referred Thiaw’s application to the immigration court. The Department of Homeland Security then issued a Notice to Appear charging him with being subject to removal. Thiaw appeared before an immigration judge (IJ) and conceded re-movability, but requested asylum and withholding of removal.

At his hearing, Thiaw testified for the first time that he had first entered the United States at JFK Airport in New York City on July 4, 2001, using his cousin’s altered passport and visa. He dis *879 claimed his prior assertion of arriving at Baltimore as an error made by an English-speaking friend who had assisted him with his asylum application. He attributed his failure to correct the error earlier to his fear of appearing inconsistent to the asylum officer.

The IJ did not credit Thiaw’s testimony regarding his arrival, and noted that Thiaw produced no other evidence — besides the admittedly false passport itself— of where and when he first entered the United States. Consequently, the IJ concluded that Thiaw could not establish that he had filed his asylum application within one year of his entry. The IJ therefore denied Thiaw’s asylum application as untimely. The IJ also found that Thiaw had abandoned his asylum application by leaving the United States in 2003 and that asylum was not justified on the merits.

The IJ likewise denied Thiaw’s application for withholding of removal, which Thiaw supported by testifying about events that occurred in 1989. Despite Thiaw’s failure to report those events previously — which he also blamed on his friend’s deficient assistance — the IJ deemed Thiaw’s account “generally credible” and found that he had “just barely” proven that he had suffered past persecution in Mauritania. But the IJ found, based primarily on State Department reports, that conditions in Mauritania had changed to the extent that Thiaw was not likely to be subjected to future persecution there. (Order at 14-15, Apr. 18, 2007.)

Thiaw appealed to the Board of Immigration Appeals, which affirmed and supplemented the IJ’s decision. This petition for review followed.

II.

Because the Board adopted the IJ’s reasoning and added comments of its own, we review the IJ’s decision directly while considering the Board’s comments. Ceraj v. Mukasey, 511 F.3d 583, 588 (6th Cir.2007). We review legal questions de novo and factual findings for substantial evidence. See id. Under the substantial-evidence standard, “findings of fact are conclusive ‘unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir.2004) (quoting 8 U.S.C. § 1252(b)(4)(B)).

A.

Thiaw challenges the IJ’s finding that he abandoned his asylum application by leaving the United States in 2003. He also challenges one of the IJ’s alternative merits findings, namely, that asylum was unnecessary because Thiaw had a safe harbor in Senegal.

Those challenges are moot, however, because they accompanied the IJ’s determination that Thiaw’s asylum application was untimely. Thiaw has not contested that determination, and we would not have jurisdiction over such a challenge in any event. See 8 U.S.C. § 1158(a)(3) (stripping courts of jurisdiction to review timeliness determinations); Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir.2006) (holding that exceptions to jurisdiction-stripping provision apply only to “constitutional claims or matters of statutory construction”). That determination is dispositive of Thiaw’s asylum application, so we dismiss his petition to the extent that it seeks review of the IJ’s denial of asylum.

B.

Thiaw also seeks review of the IJ’s denial of his application for withholding of removal. Eligibility for withholding of removal is subject to a burden-shifting analysis. First, an applicant must show that his life or freedom would be threatened in the *880 country of removal based on certain grounds, including race or nationality. If the applicant proves past persecution on such a ground, the IJ must presume a threat of future persecution. The government may rebut the presumption by showing a fundamental change in circumstances that eliminates the threat. Alternatively, regardless of past persecution, an applicant may simply attempt to show that he “more likely than not” would suffer future persecution. 8 C.F.R § 1208.16(b).

Here, the IJ found that Thiaw had proven past persecution, but also found— primarily relying on State Department reports—that circumstances in Mauritania had changed. Specifically, although the IJ recognized that “some ethnic and racial discrimination” continues in Mauritania, the IJ found, based on the reports, that “current country conditions do not include widespread persecution^]” that “there are now free and generally democratic elections underway in that country[,]” and that many other late-1980s refugees had returned to Mauritania. Consequently, the IJ found that Thiaw, more likely than not, would not suffer future persecution in Mauritania.

Thiaw argues the reports do not rebut the presumption of persecution here, citing the Ninth Circuit’s statement that “a State Department report on country conditions, standing alone, is not sufficient to rebut the presumption of future persecution when a petitioner has established past persecution.” Molin a-Estrada v. INS,

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Related

Immigration & Naturalization Service v. Stevic
467 U.S. 407 (Supreme Court, 1984)
Ceraj v. Mukasey
511 F.3d 583 (Sixth Circuit, 2007)
Cheikh Koita v. Holder
314 F. App'x 839 (Sixth Circuit, 2009)
Sall v. Gonzales
239 F. App'x 975 (Sixth Circuit, 2007)

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