Salif Diallo v. Eric H. Holder, Jr.

348 F. App'x 142
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 9, 2009
Docket08-3307
StatusUnpublished

This text of 348 F. App'x 142 (Salif Diallo v. Eric H. 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
Salif Diallo v. Eric H. Holder, Jr., 348 F. App'x 142 (6th Cir. 2009).

Opinion

COOK, Circuit Judge.

Salif Diallo, a citizen of Mauritania, petitions for review of the Board of Immigration Appeals (“BIA”)’s order denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We dismiss in part for lack of jurisdiction and deny the remainder of the petition on the merits.

I. Background

Petitioner, a native Mauritanian of Fulani ethnicity, claims he entered the United States in December 2003 with a false Senegalese passport bearing his photograph. In March 2004, he filed an affirmative application for asylum, withholding of removal, and CAT protection, asserting that he fears persecution on the basis of race at the hands of the White Moor regime governing Mauritania. Diallo claims that in 1989, when he was eight years old, White Moor soldiers physically attacked his family at them home in Mauritania and forced them to cross a nearby river into Senegal. Once in Senegal, Diallo spent a number of years at a refugee camp where both he and his father acquired refugee cards. In 1996, he moved to Dakar where he worked for seven years before obtaining a plane ticket and passport from his employer to enter the United States.

The Immigration Judge (“U”) denied Diallo’s asylum application, finding that he neglected to timely file it, and, in the alternative, that the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158(b)(2)(A)(vi), precludes him from claiming asylum because he was firmly resettled in Senegal. The IJ also denied Diallo’s application for asylum and withholding of removal on the merits, finding that Diallo did not suffer past persecution and failed to show either a well-founded fear of future persecution or a clear probability of future persecution or torture. The IJ’s order designated Senegal or Mauritania for Diallo’s removal. The BIA affirmed and petitioner now appeals.

II. Analysis

A. Asylum

This Court lacks jurisdiction to review the denial of Diallo’s asylum application. An alien seeking asylum must show by clear and convincing evidence that he filed his application within one year of entering the United States. 8 U.S.C. § 1158(a)(2)(B). Applicants may avoid this requirement by “demonstratpng] to the satisfaction of the Attorney General ... the existence of changed circumstances which materially affect the applicant’s eligibility for asylum ...” 8 U.S.C. § 1158(a)(2)(D). Although Diallo arguably asserts changed circumstances, § 1158 bars judicial review of BIA timeliness determinations generally, and the existence of changed circumstances specifically, where a petition fails to raise any related constitutional claims or questions of law. El-Moussa v. Holder, 569 F.3d 250, 254 (6th Cir.2009); Huang v. Mukasey, 523 F.3d 640, 650-51 (6th Cir.2008); 8 U.S.C. § 1158(a)(3). Because Diallo appeals only *144 the BIA’s factual findings, we lack jurisdiction to review his asylum claim, and consequently, we need not reach the issue of firm resettlement or the merits of his asylum claim.

B. Withholding of Removal

Although we lack jurisdiction to review Diallo’s asylum application, we may review the BIA’s denial of his withholding of removal claim. See Almuhtaseb v. Gonzales, 453 F.3d 743, 749 (6th Cir.2006). Where, as here, “the BIA adopts the IJ’s reasoning, the court reviews the IJ’s decision directly to determine whether the decision of the BIA should be upheld on appeal.” Gilaj v. Gonzales, 408 F.3d 275, 282-83 (6th Cir.2005) (citing Denko v. INS, 351 F.3d 717, 723 (6th Cir.2003)).

Whether the petitioner requests withholding of removal under the INA or the CAT, we will reverse if we deem the IJ’s decision manifestly contrary to law. 8 U.S.C. § 1252(b)(4)(C). We review the IJ’s factual findings under a deferential substantial-evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude the contrary.” Thap v. Mukasey, 544 F.3d 674, 676 (6th Cir.2008) (quoting 8 U.S.C. § 1252(b)(4)(B)). Thus, to reverse the BIA’s determination, we must find that the evidence “not only supports a contrary conclusion, but indeed compels it ...” Yu v. Ashcroft, 364 F.3d 700, 702-03 (6th Cir.2004) (internal quotation marks and citation omitted).

In order to prevail on his petition for withholding of removal under the INA or the CAT, Diallo must show a “clear probability” that removal from this country would subject him to persecution or torture because of his race, religion, nationality, membership in a particular social group, or political opinion. Kouljinski v. Keisler, 505 F.3d 534, 544 (6th Cir.2007). An alien can meet this standard by showing that he was persecuted in the past, which triggers a rebuttable presumption of future persecution or torture. 8 C.F.R. § 1208.16(b)(1); Almuhtaseb, 453 F.3d at 750. Or, in the absence of past persecution, an alien can succeed by showing it is more likely than not that he will suffer persecution or torture if removed. 8 C.F.R. § 1208.16(b)(2); see Kouljinski, 505 F.3d at 544-45.

The IJ determined that Diallo failed to demonstrate past persecution and, as a result, could not invoke the presumption of future persecution or torture. The evidence does not compel a contrary conclusion. Although the IJ found Diallo’s testimony about his family’s deportation from Mauritania by White Moor soldiers technically credible, he nonetheless found it unpersuasive and lacking corroboration. Diallo often testified in a nonresponsive manner, despite his own insistence that he understood the interpreter, and despite many requests from his attorney and the IJ that he listen carefully and answer only the question being asked.

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Related

Yinggui Lin v. Holder
565 F.3d 971 (Sixth Circuit, 2009)
El-Moussa v. Holder
569 F.3d 250 (Sixth Circuit, 2009)
Thap v. Mukasey
544 F.3d 674 (Sixth Circuit, 2008)
Kouljinski v. Keisler
505 F.3d 534 (Sixth Circuit, 2007)
Fang Huang v. Mukasey
523 F.3d 640 (Sixth Circuit, 2008)

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348 F. App'x 142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salif-diallo-v-eric-h-holder-jr-ca6-2009.