The Honor able Ka rl S. Fore ster, Senior United States District Judge for the * Easter n District of Ke ntucky , sitti ng by desig nation. 1 NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION File Na me: 09a0356n.06 No. 08-3660 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT

THI ERNO AMADO U B ARRY, Pe tit ion e r- Ap pe lla

nt,

V.

ERI C H . H OL DE R, JR., Attor ne y Ge ne ra l, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON PETI TI ON F OR REVI EW OF AN ORDER OF THE B OARD OF IM M IG RA T IO N A P P E A LS

OPI NI ON

BEF ORE: MOORE and McKEAGUE, Circ uit J udg es; FO RESTER, S enior District Judge. * FORESTER, Senior District J udg e. Petitioner-Appellan t , Thierno Ama dou Ba rry , seeks r eview of

a B oard of

I mmigration Ap pe a ls ( “ B I A” ) o rd e r a ff ir min g an Immi grati on Judg e ’s (“ I J”) de nia l of his c la ims fo r a sylum , withholding of r emoval, and pr otection under the C o n v ention Ag ainst Torture ( “CAT”) . For the

rea sons set forth below, w e DEN Y the petition for r eview. I. F ac tu al a nd P r oc e dur al B ac kgr ound Ba rry is a nativ e o f

G u in e a an d c la im s th a t h e e n te r e d

th e U n it e d

St a te s o nJu n e 9 , 2 0 01,Ac c or din g to t he State De pa

rtme nt, Con te die d o n D e c e mbe r 2 2, 20 08 . H is d e a th 1 sparke d an immediate c oup d’etat by elements of the milit ary . The g overnme nt is curre ntly run by a mil ita ry jun ta re pr e se nte d b y

a Natio na l Co un c il f

or De moc ra c y

and De ve lop me nt. 2 us ingso me on e e lse ’s pa ssp or t. Th e re is no re c or d of B arr y ’s e ntr y int o the Un ite d Stat e s and he did not p r o d u c e an a ir li n e ti c k e t o r I

- 9 4

. B ar r y f il e d an a p p li c a ti o n f

o r a s y lum an d w it

h h o ld ing of

remova l based on political opinion and the CAT on August 7, 2001. Ba rry provided ba ckg round information in his application. He stated th at he lived in Mamou, Guinea f rom 1971 to 2000, befor e fle eing to Conarky , Guinea a nd then to the United States in 2001. At the ti me th at Bar

ry le ft Gu ine a , th e g ov e rnme nt o f L a sa na Con te do min a te d p oli tic s. I n h is 1 application, B arr

y claims that he is a membe r of the Union pour le Prog res e t la Renouvea u or Union for Prog ress a

nd Renewa l (“UPR”), a

n opposition par

ty

. He stated that, in G uinea, he was a truck driver a nd used hi s skill as such to provide transportation to UPR members who wer e in nee d of a ride fr om their village s to vote in e lections held on J une 25, 2000. (JA 265) Since the “pe ople of Mamou” fe lt that the election re sults were c orrupt, they decide d to protest and B arr y provided transportation to them to t he prote st. (J A 265) As a result of the protest, members of the milit ary

arr ested him, burned his truc k and sent him to a military camp whe re he was torture d and humiliated. He stated that he was transfe rre d to K india the next day wher e he was imprisoned in poor l i v i ng

c o n d i t i o n s an d

w a s t o rtu r e d

u n t i l h e h a d t h e c h an c e t o e s c a p e an d c o m e t o t h e U n i t e d

S t a t e s . ( JA 271) An

a sylum of fi c e r i nte rv ie we d Barry and co mpl e te d a n A sse ssm e nt t o Re fe r t

he c a se to I mmigration Court for further proce eding s. (JA 125) The I NS (now the B urea

u of I mmigration and Cus tom s E nf

or c e me nt ( “ I CE” )) iss ue d a No tic e to A

pp e a l on F e br ua ry 20 , 2 0 03 , c ha

rg ingB arr y wi th

remova bility under § 212( a)( 6)(A) (i) of the I mmigration an d Nationality Act. An initial decision3

denying B arr

y ’s re quests for relief was issued on Fe bruar y 12, 2004, but a portion of the tra nscript from that hea

ring was blank so the B I A remanded the case for a new he aring . A sec ond hear ing w as he ld o n Nov emb er 1 3, 20 06 , b e fo re I mmi g ratio n Jud g e Cha rl e s E . Pa zar

sittin g in M e mph is, Tenne ssee. Duri nghis or a l te sti mony a t t he hear ing , B arr

y pr ov ide d a dd iti on a l de ta ils a bo ut h is experience s in Guinea. He testified that he dr ove UPR members to the m ay oral elections on J une 25 , 2 00 0, and

to t he pr e fe c t of

fi c e to h e ar t

he resul ts on J un e 26 , 2000 . ( JA 93 -9 4) Th e UPR members we re upse t about the elec tion results and believe d there wa s ch ea ting involved in the elec tions so they

beg an shouting . (JA 80) Due to the shouting, the pref ect of fice called the police and the military

from Kin d i a an d t he military beg an bea

ting a nd shooting the pr otesters. (JA 81) Ba rry identified two individuals that he saw die a s a re sult of the milit ary ’s ac tions. (J A 83) The mil ita ry ar

r e s t e d B ar

r y an d o t h e r s an d t r an s f

e r r e d t h e m t o K i n d i a w h e r e t h e y h e l d B ar r y a tCa mp KangKeme I

braha ma, a military camp, for one we ek. (JA 82-84) B arr y testified that he wa s beate n

ever y morning and his leg was injured a s a re sult of the beating

. (JA 84-85) Ba rry ’s brother

worke d out a deal with the military to allow Ba

rry ’s esc ape f

rom the military

camp. ( J A 86) One morning as B arr y was takingout the g arba g e, the military g uard told him to wa it in a cer tain location, which h e d i d , an d

t h e n t h e m i l i t ar

y g u ar d m e t h i m an d g a v e h i m b a c k h i s t r u c k an d t o o k

h i m t o C o n a kr

y. (JA 86 -8 7) B arr

y sta y e d in Con a kr y fo r a y e ar b ut f

le d to the Un ite d St a te s w he n p e op le c omi ngto Conakry from Mamou told him that the m ilitary was looki ng for him. (JA 88) Ba rry testified that he did not fee l safe in Conakr y beca use he be lieved that the military would kill him if they

found him. (J A 89) He also believe s that if he re turned to Guinea , the military would kill him . (JA 89) On c ro ss e xami natio n, the g ov e rnme nt a tto rn e y hig hli g hte d a

numbe r o f i nc on sis te nc ie s in4

Ba rry ’s desc ription of the eve nts prece ding his a rrival in the United States. F irst, the g overnme nt attorney told Bar ry that despite his testimony that he joined t h e UPRwhen it started in 2000, the UPR was formed in 1998 and asked Ba rry if that was possible. B arr y responde d that it was forme d befor e 2000 but that he joined in 2000. (JA 91-92) Second, the g overnme nt attorney asked Bar ry about his testimony

reg ardingwhat happe ned to B arr y ’s tr uc k a ft e r h e wa s arr e ste d. On c ro ss, B arr y state d that he ne ve r s aw “ that tr uc k” a g a in but in response to his attorney ’s question, he stated that “his truck” was returne d to him when he wa s taken to Conarky afte r beingrele ased f rom Camp Keme. I

n his application, howeve r, B arr y said that the truck w as burne d. When asked a bout these in co n s i s t en ci es, Barr y testified that when he was

arr e s te d , th e mi li ta

r y d e s tr o y e d

h is tr u c k an d h e d id n o t k n o w w h a t h a

p p e n e d to it a f te r it w as destroy ed. (JA 97-98) T h i r d , t h e g o v e r

n m e n ta t t o r

n e y qu e s t i o n e d

h i m a b o u t w h o a s s i s t e d h i m w i t h h i s e s c a p e . In response to his attorney ’s questi on, Ba rry testified t hat hi s brother helped him esca pe. (JA 86) The g ov e rnme nt a

tto rn e y a sk e d B arr

y wh e the r h e to ld th e asylum of fi c e r t hat hi s f a the r h e lpe d in

his

e sc a pe . ( JA 9 9 ) I n r e s p o n s e t o t h e g o v e r n m e n t a t t o r

n e y ’ s qu e s t i o n , B ar

r y t e s t i f i e d t h a t bo th h is fathe r and br other a ssisted him. (J A 99) F ourt h, the g ov e rnme nt a tto rn e y qu e sti on e d B arr y a bo ut w he re he wa s ta

ke n a ft e r h is a

rr e st. I n response to his attorney ’s question, Ba rry said that he wa s taken to Camp Keme in Kindia, which

was a milit ary camp, and that he was held t here for one wee k. (JA 83-84) The g overnme nt attorney asked him if he told the asy lum office r t hat he was taken to Camp Abatoir after his arr est. (JA 99) Ba rry responde d that he was fir st taken to Abatoir in Mamou for one nig ht, then to Camp Keme a nd

w a s t o b e t r a n s f

e r r e d t o C a mp A l p h a

Y ay a b u tw a s r e l e a s e d

b e f o r e t h e t r an s f

e r c o u l d h a p p e n . ( JA5

100) Fifth, the g overnme nt attorney highlig hted B arr

y ’s testimony

about wher e he w as ar

rested. I n his init ial testimony

and ag ain on cross, Ba

rry stated that he was arr ested in his truck. (JA 81, 97) The g overnme nt attorney

asked B arr

y if he told the asylum officer that he wa s arr ested in his home. (JA 10 1) B arr

y state d th a t hi s h ou se wa s n ot f ar f ro m th e pr e fe c t’ s o ff

ic e and that he dr ov e to h is house and the milit ary

went inside his house whe n they arr ested him. (JA 102) Finally , the g overnme nt attorney questioned B arr

y about a letter from S iradiou Diallo which was submitted by

Ba rry ’s attorne y . T h e l et t er state s that Ba rry is a member of

UPR and was perse cuted on se vera l occa sions a s a result of his member ship. Bar ry initially stated that he did not know who Siradiou Diallo was a nd that, althoug h the letter c ame to his house, it was for someone else. (JA 103-104) After seeing the l etter, Bar ry testified t hat he did know the author and that it was fo r h im a nd e xpla ine d that he did

no t un de rs tand

wh a t na me the a tto rn e y

and int e rp re te r s a id t o h im. (JA 105) After hear ing t es t i mony , the I J issued a for mal opinion deny ing B arr y ’s application and order ed him remove d to Guinea. The I J conclude d that Ba rry was not c redible a

nd that his testimony

was unc orrobor ated. Alternatively , the I J found that B arr y failed to show that he enter ed the United State s wi thi n on e y e ar of a pp lic a tio n fo r a sylum and de nie d his a sylum a pp lic a ti on on timel ine ss g ro un ds. Barry a

pp e a le d th e I J’s d e c isi on

to t he B I A b ut d e c lin e d to fi le a br ie f i n s up po rt

of his appea l. The BIA aff

irmed the I J ’s decision. Ba rry filed this timely petition f or revie w arguing that the I J err ed: (i) in finding him not credible; (2) in finding that he did not meet his bur den of pr oof fo r as y l u m an d withholding of r emoval bec ause of lack of corr oboration; (iii) in not apply ing the presumption of fear of future persec ution based on his testimony reg ardingpast perse cution; and (iv)As this court has pre viously noted, “The REALI D Act of 2005, Pub.L . 109-13, 119 2 Stat. 2 31 (c od if

ie d in sc a tte re d s e c tio ns of

8 U .S. C.) , c ha

ng e d th e sta

nd ard g ov e rn ingc re dib ili ty deter minations, stating that those dete rminations may be made ‘without reg ard to whe ther a n inconsistency , inacc urac y , or fa lsehood g oes to the hea rt of the a pplicant’s cla im.’” Amir v. Gonzales , 4 67 F .3 d 9 21 , 9 25 n. 4 ( 6 Cir . 2 00 6) (q uo tin g 8 U .S. C. § 11 58 (b )( 1) (B )( iii )) . T his th provision, however , applies only to applications for a sy lum, withholdi ng of re moval and other claims for r elief f

iled on or af

ter May 11, 2005. Id. (citing Pub.L . 109-13, div. B, § 101( h)(2) , 119 Stat. 231 at 305). 6 in concluding that he did not qualify for relief under t he C AT. The gove rnment arg ues t hat the I J ’s

cre dibilit y

deter mination was supported by the evidenc e in the re cord. II. Ana lys is A. Elig ibil it y forAs ylu m The g ener al standar ds for revie wing asylum c ases are well-e stablished. Se e Y u v . A sh c ro

ft , 36 4 F .3 d 7 00 , 7 02 (6 Cir . 2 00 4) . T his c a se ra ise s an is su e re sp e c tin g the I J’s c re dib ili ty th deter mination. The I J ’s finding that Ba rry was not cre dible is supported by substantial evidence and there fore must be upheld. Id. at 703. 2 Even a ssuming that some of the other more minor inconsistencies identified by the I J – such

a s th e date B arr

y joi ne d th e UPR , w he the r h e wa s arr e ste d in his tr uc k o r h ome and wh o a ssi ste d in his escape of the c amp – did not g o to the hear t of Ba rry ’s asylum claim, the I J identified spec ific,

se ri ou s in c on sis te nc ie s in B arr y ’s te sti mony that g o to the he art of his c la im s uf

fi c ie nt t o c on sti tut e substantial e vidence for the I J ’s deter mination. Chen v. Gonzales , 447 F.3d 468, 472 (6th Cir. 2006). Specifica lly , the I J identified inconsis t en ci es i n Ba rry ’s testimony

at the hea

ring and in the Assessmen t to Re f

e r a b o u t w h a t h a

p p e n e d to h is tr

u c k a f te r h is ar r e s t an d h o w lo n g an d

at what loc a tio n h e wa s ja ile d. Ea c h o f t he se inc on sis te nc ie s c an be se e n a s a n atte mpt to e nh anc e his c la im of perse cution; thus, they have bear ing on his credibility

. Sy lla v . I NS , 388 F.3d 924, 926 ( 6th Cir.7

2004). Even if

there may

be explanations for these inconsistencies, the evidenc e does not show that

any re a so na ble a dju dic a tor

wo uld have be e n c omp e lle d to c on c lud e that B arr y wa s c re dib le ; thus , the I J ’s credibility deter

mination was supported by substantial evidenc e. 8 U.S.C. § 1852(b)(4)( B) ; Koulibal y v. M ukasey , 541 F.3d 613 ( 6th Cir. 2008)

. I t was per

missibl e for

the I J to rely

on discrepa

ncies a nd inconsistencies be tween the Assessment to Refer , including the asylum officer ’s notes, and B arr y ’s appli cation and testimony beca use the Asse ssment to Refer c ontains sufficient indicia of rel i ab i l ity

to use it to support an adver se cre dibilit y

deter mination. Se e Kou lib aly , 541 F.3d 613 ( discussing the proper role of a n Assessment to Refer

in supporting a

n adver se cr edibility

deter mination). Whi le the notes a re not compar able to a transcr ipt of the interview, they are contempora neous notes fr om the asylum officer , detailing the questions pose d with note s of B arr y ’s answe rs following most questions and Bar ry was

un de r o a th w he n h e re sp on de d to the a sylum of fi c e r’ s q ue sti on s. Al tho ug h th e a sylum of fi c e r d id not testify at t he removal hear ing, on balanc e, these fac tors counsel for rely ing on the Assessment to Refer as substantial evidenc e for the adve rse c redibility

deter mination. Id. at 621. I n a dd iti on , a s th e I J note d, B arr y fa ile d to pr e se nt a

ny c or ro bo ra tin g e vid e nc e that c omp e ls the conc lusion that Bar

ry was imprisoned for political r easons. To corr oborate his testimony , Ba rry offe red a letter fr om Mr. Diallo and 2002 and 2005 State Depar tment country

repor ts for Guinea

. The Dia llo letter states t hat Barr y was a member of the UP R party and was a victim of per secution

as a r esult of this membership. The letter , howeve r, st at es t hat B arr y was a “fr equent” victim of pe rs e c uti on , b ut B arr

y te sti fi e d th a t he wa s th e vic timon ly on on e oc c a sio n. As th e I J note d, thi s discrepa ncy calls into question whether the letter c orrobor ates B arr y ’s testimony . Given that the lac k of cor roborating e vidence to support an asylum applicant’s stateme nts is a fa ctor that c an be taken8

into a ccount in a cred i b i l i t y d et ermination, see Be rri v. Gonzales , 468 F.3d 390, 395- 96 (6th Cir. 2006), these f

acts too support the I J ’s deter mination that Bar

ry ’s story was not cr edible. Whil e th e S tat e De pa

rt me nt r e po rt s c or

ro bo ra te that vi ole nc e oc c ur

re d in c on ne c tio n w ith t h e m u n i ci p al elec tions and that there a re poor prison conditions in Guinea, they do not by themselves esta

blish Bar ry ’s claim that he was actua lly impacted by the vi olence nor t hat he was eve r imprisoned. Specifica lly , the 2002 State Depa rtment repor

t refe renc es the violenc e surr ounding the 20 00 mun ic ipa l ele c tio ns . I t sta te s tha t the re wa s no inve sti g a tio n in to “ the c la sh e s b e tw e e n s e c ur ity fo rc e s, ru lin g pa

rt y mil ita nts , an d opp os iti on pa

rt y su pp or te rs duri ngthe 20 00 mun ic ipa l e le c tio ns , which re sulted i n the deaths of eig ht persons and injuries to seve ral other s.” (JA 250) The 2005 State De pa

rtme nt r e po rt

state s th a t th e re we re nume ro us no te s o f a rr e sts duri ngstr ike s and the us e of fo rce d uri ng dem on str a tio ns (JA 12 9) and that “ the re we re re po rt s o f d e a ths in c us tod y du e to t o rtu r e , a b u s e an d n e g l e c t ” an d

p r i s o nc o n d i t i o n s “ r e m a i n e d i n h u m an e an d

l i f e t h r e a t e n i n g . ” ( JA 130) Ther e is nothing, how ever , to establish that Ba rry was a victim of any

of these c onditions. Ac c or din g ly , w e up ho ld the I J’s de te rm inatio n tha t Ba rr y did no t qu a lif y fo r a sylum

be c a us e Ba rry lacke d cre dibilit y

and provide d no co rr o b oration bec ause it is supported by substantial evidenc e. B. Withhol din g of Rem oval B arr y a lso re qu e ste d withho ldi ng of re mov a l pur su ant to § 24 1( b) (3 ) of the I NA , 8 U. S.C. § 1231(b)( 3). Since B arr y did not qualify

for a sy lum because of his lack of cre dibi l i t y

and

corr oboration, he ne cessa rily does not qualify

for withholding of re moval, and we deny the petition for r eview of

the B I A’s dec ision. Sin gh v . A sh c ro ft , 398 F.3d 396, 401 ( 6th Cir. 2005). C. Relief P ursuan t to t he Convention Again st Torture9

Ba rry al s o p et i t i ons for re view of the denial of his CAT cla im. I n light of B arr y ’s lack of

cre dibilit y , the I J deter

mined that Ba

rry could not sustain h i s b u rd en of proof and pe rsuasion for protec tion under the CAT. B arr y has not shown that torture w as more likely than not to occur if he returne d to Guinea; ther efor e, the I J did not err in deny ing his a pplication. 8 C.F.R. § 208.16(c) (2); Be rri , 468 F.3d at 397-98. Whil e a CA T c la im i nv olv e s a

“ se pa ra te qu e sti on

of the thr e a t of tor

tur e wi tho ut re g a rd

to the enumer ated g round for asylum” and “[i]t is possibl e . . . for a n applicant to succ eed on a [C AT] claim eve n though a

withholding of r emoval c l ai m u n d er t he I NA is denied,” Ba

rry has not

e s t a b l i s h e d t h a tan y r e a s o n a b l e a d j u d i c a t o r w o u l d h a v e r e a c h e d

t h e o p p o s i t e c o nc lus ion a s t h e I J. Karomi v. Gonzales , 168 Fe d. Appx. 719, 729 (6th C ir

. 2 0 0 6 ). Although the State Depa rtment repor ts de tail that violence oc curs in conne ction with politi cal de monstrations and that there are poor prison conditions in Guine a, they do not e stablish that Ba rry was or will be a victim of such violenc e nor that he was or will be imprisoned if he re turns to Guinea. More over, the rec ord re flec ts that B arr y ha d a saf e have n in Guin e a be c a

us e he liv e d the re fo r a

pp ro xima te ly

a y e ar b e fo re c omi ngto the United States. The I J proper ly considere d the possibili ty of future torture and found that Ba rry was not entitled to protec tion under the CAT. III. Conclusion For the re asons set for

th here in, we DENY the petition for re view.