The Ho norab le H erm an J. Web er, Senio r U nited States District J udg e for the S outhern D istrict * of O hio, sitting by

des ig nation. 1 NO T RE CO MM EN DE D FO R FU LL -T EXT PU BL IC A TI ON F ile Nam e: 09a0161n.06 F iled: F ebruary 24, 2009 No. 07-4267 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT

SAM BA DI AL LO, ) ) Petitioner , ) ) ) v. ) ) ON AP P EA L F RO M THE B OA RD OF ) IM M IG RA TIO N A P P EA LS ) ERIC H. HOL DER, Jr., ) Uni te d St at e s A tt or ne y G e ne r al, ) ) Respondent . ) ) )
Be fore : M c KEA G UE and GRIF F IN, Circ uit Jud ges ; WEBE R, Senior Di s tr ict Judge
. *
P ER CURIAM . Petitioner Samba Diallo (“D iallo”) seeks revie w of a decision by the Bo ar d o f Imm i gra t i o nAp p ea l s ( “ B IA ” )
. T h e B I A u p h el d t h e d ec i s i o no f t h e Imm i gra t i o nJ u d ge (“I J ”) that Diallo was statutorily ineligible f

or asy lum and h e wa s not entitled to withholdi ng of
remova l or protec tion under the Convention Ag ainst Torture ( “CAT”) beca use h i s testimony

was incre dible. For

the re asons that follow, we find the B I A’s dec isio n i s s u p p o rt ed by substantialThe I NS bec am e part of the D epartm ent o f H om eland Security on March 1, 2003
. Hom eland 1 Security A ct of 2002 , P ub. L.N o. 107- 296, Title I V, 116 Stat. 21 35 (Nov . 2 5, 2002 ), a s am ended
. Mam adou

B a is spelled “Mam dou Bah ” elsew here in the reco rd. 2 2 evidenc e and w e ther efor e DENY the petition for re view. I. Diallo, a native a

nd citizen of Guinea, e ntere d the United States illeg ally on or about Oc tober 12, 2000. He subseque ntly fi l ed an application for asy lum with the former Immigration and Natura liz ation Service (“I NS”) on Dece mber 11, 2001. The I NS did not gra

nt his application but 1 instead commenc ed re moval proce eding s pursuant to § 237(a) (1)( B) of the I NA, 8 U.S.C. § 1227(a) (1)( B) . Diallo conce ded re movability . He ther eafter r enew ed his application for asylum under § 2 0 8 of the I

NA, 8 U.S.C. § 1158, and, in the alter native, soug ht withholding of re moval under § 241( b)(3) of the I NA, 8 U.S.C . § 1231(b)( 3), and pr otection under the CAT. Diallo base d his request for

relief on a claim of past perse cution or a w ell-founde d fea r of f uture pe rsec ution on
acc ount of his politi cal opinion and membe rship in a par ticular socia l gr oup. A. The Origin al Asylum Application Diallo provided the f

ollowing infor

mation in his original asy lum application: He was born in Conakry , Guinea in 1974 and is a member of t he Fulani ethnic group. He lef t Guinea be cause of mistreatment he a

nd his family

rec eived at the hands of the g overnme nt based on their F ulani ethnic it y . D ia ll o an d

h is p ar e n ts w e r e me mb e r s o f M a ma d o uB a ’ s p o li ti c a l p arty
. H is f amily ’s 2 bu sin e ss w a s se t on

fi re and he and his fathe r we re arr e ste d by so ldi e rs and de ta ine d at the Al mamy Samory milit ary camp. Af

ter his re l ea s e from the mil itary camp, his father he lped him leave the country . Diallo left Guinea on Octobe r 11, 2001, and e ntere d the United States on Oc tober 15, 2001,Octo ber 1 2, 2000 , is also n oted as the last date o f entry on the applicatio n. That da te is written 3 in handw riting that appears to be d ifferent fro m the hand writinguse d to fill in th e rest of the app lication. 3 afte r spendingtwo day s in Seneg al. Diallo fea red be ing a

rre sted and mistreated ag ain by milit ary 3 soldiers if he we re f

orce d to return to Guinea
. B. The Am ended Asylu m Appli cation Diallo filed an a

mended a sy lum application and supporting documentation with the assistance of counse l on May 10, 2004. I n the amende d application, he states as follows: He a nd his fa mil y e xpe ri e nc e d h arm

and mis tr e a tme nt at th e ha

nd s o f t he g ov e rnme nt o f G uin e a be c a us e they wer e member s of the Union for Prog res s and Rene wal, or U PR, a polit ical par ty led by Mamadou B a wh i ch h ad many black F ulani members. Dia llo first joined the UPR in 1996. He
wor kedat h is fat her’ s gener al s t o r e i n C o n a kry , wh ere h e andhi s fa th er he lp ed M ama do u Ba campa ign by

making t-shirts and other items in support of the U PR. I n De ce m b er 1999, sever al g ov e rnme nt s old ie rs c a me to h is f a the r’ s g e ne ra l st or e and

int e rr og a te d him

and his fathe r a

bo ut t he ir involvement with the UPR. The soldi ers beat Diallo’s fathe r wit h plastic cords and set the store on f i r e . T h e y t h e nar

r e s t e d D i a l l o an d h i s f

a t h e r an d t o o k t h e m t o a m i l i t ar y p r i s o ni nA l m a m y S a m o r y, wher e they

sep arated the two of the m. Diallo describe d the conditions in the prison as “unspea kable.” He was g iven onl y one meal a day and was forc ed to work li ke a slave. The soldiers regularly kicked him and be at him with whips and batons. Afte r beingdetained f or six months, he
was re lease d from prison in J une 2000 whe n his fat h er , wh o h ad been f ree d ear lier, bribed the g uards. Dia llo’s father

arr ang ed for

him to escape to Mali the day afte r hi s relea se. Diallo re mained in Mali for appr ox imately four months befor e comingto t h e Un i t ed States, whe re he arr ived on October 15, 2000. He did not apply for asylum in Mali and is not e ligible f or per manent re sidenceThe te st im on y w as s om ew ha t c on fu si nga s to w ha t b us in es s D ia ll o an d hi s fa th er a ct ua ll y 4 cond ucted at the shop
. Altho ug h the I J states in his op inion that D iallo testified that “he and his fath er m ade the t- shirts inhis father’s s hop, ” D iallo actu ally testified his fath er m ade the t- shirts an d the n h e and his fath er sold

them in the sh op. The I J furthe r stated that D iallo’s fath er “also sold sho es, hats and other item s, but o nly

U PR m erchan dise.” D iallo actu ally testified that the y

sold “t- shirts an d sh oes, hats, ev er y th in g ” an d inr es po ns e to th e qu es ti on o f w he th er

th ey s ol d U P R

m er ch an di se s ta te d, “ Y es . W e se ll them bec ause the t- shirt (ind iscernible) will s ell it.” 4 the re . D ia ll o f

e ar s t h at h e w i l l b e d e t a i n e d an d t o rtu r e d b y g o v e r n m e n t s o l d i e r s i f h e i s f

o r c e d to
re tur n to Gu ine a be c a

us e he and his fathe r we re ve ry a c tiv e in the UPR and Pr e sid e nt L ans ana

Con te and his ruling g overnm en t o ppose all political opposition parties with violence. Dia llo has been
un a ble to c on ta c t his fathe r sin c e he le ft Ma li to c ome to t he Un ite d St a te s and

he is una wa re of his wh e re a bo uts or wh e the r h is f

a mil y sti ll s up po rt s o r p art ic ipate s in the UPR
. Di all o rem ains a
me mbe r o f t

he UPR , a lth ou g h h is p art ic ipatio n is lim ite d b e c a us e he is i n th e Un ite d St a te s. C. The As ylu m He ar ing At the a sylum

he ari ng , D ia llo g a ve the fo llo wi ng te sti mony , wh ic h he a lle g e s p ro ve s a we llfo un de d f e a r o f p e rs e c uti on

and wo uld the re by pe rm it h im a sylum

in the Un ite d Stat e s: He be c a me a member

of the UPR political party i n 1 9 9 6 an d was politically active. H is father

was a lso a member of

the UPR and a sale sman who would buy t-shirts in Chi na and the n put the UPR name on the m to se ll at hi s st or e . Th e t- sh ir ts “ ne ve r we nt dir e c tly to Mamdo u Ba h’ s o ff ic e .” Hi s f

a the r a lso 4 sold shoes and hats at the s t o re . I n 1998, his father boug ht some t-shirts in Chi na that Diallo wa s supposed to pick up at the por t of entry and take to their store. A ta x officia l and pol iceman produce d a docume nt and told Diallo that he could not take the t-shirts but he instead ha d to leave them at the port. Dia llo returned to his father, who pa id money to have the me rcha

ndise rele ased. Diallo and his fathe r had problems beca use of their

membership and pa

rticipation in the UPR. An a

rre st w arr ant was issued for Diallo in F ebrua ry 1999 for va

rious acts c ommitt ed in Marc h5

1998. I n Dec ember 1999, eig ht to ten members of the military who wer e we aringg ree n t-shirts and
c arr y ingwe a po ns c a me to the sto re in a tru c k. Th e y be a t D ia llo wi th p la sti c sti c ks . T he y tol d D ia llo and his fathe r that they could no longe r run their business bec ause it wa s supporting the UPR. The
so ldi e rs the n b ur

ne d th e sto re and too k Di a llo and his fa the r to the po lic e statio n. Th e so ldi e rs tol d Diallo t h at h e an d his father wer e beingimprisoned so that they would not be able to support Mama do u B a . D ia llo wa s th e n s e pa rate d f ro m hi s f a the r a nd take n to Al mamy S a mor y . Wh ile imprisoned, he wa s treate d like a slave and for ced to f arm a nd cut tree s. He wa s beate n, kicked a nd mistreated by

the g uards. He was fed only once a day . He wa s detained f or six months and relea sed
on ly a ft e r h is f

a the r, wh o h a d b e e n r e le a se d e arl ie r b e c a us e of his a g e , p a id a br ibe . N e ith e r D ia llo nor his fathe r wa s ever formally char g ed with a c rime, but Diallo believe s he and his father we re
arr e ste d b e c a

us e the y su pp or te d th e UPR
. Th e da y a ft e r his re le a se fr om pr iso n, on June 6, 20 00 , pe tit ion e r we nt to Ma li b y ta xi. H is fat h e r m a d e t h e ar

r an g e m e n t s f

o r h i m t o l e a v e G u i n e a

an d t o s t ay i nM a l i w i t h b u s i n e ss acqua intances. A lthough Dia llo’s asy lum application, which had been prepa red by someone he met in C inc inn a ti, state d th a t he we nt t o Se ne g a l f or tw o da y s, he ne ve r w e nt t o Se ne g a l, h e ne ve r t old the pe rs on

wh o pr e pa

re d the a pp lic a tio n that he wa s in S e ne g a l be fo re c omi ngto t he Un ite d St a te s, and he told the a sy lum officer that this statement was fa lse. Diallo require d hospitaliz ation upon his r elea se from prison beca use he was dehy drate d and had blood in his urine. He sta y ed in a hosp i t al i n M al i for 20 da y s and in Mali for a

total of four
mon ths . H e did

no t w ant t o r e ma in i n M a li b e c a us e he did no t fe e l it wa s saf e and a ll g ov e rnme nts in Africa are the same. A lthough his asy lum application states t hat he arr ived in the United States in October

2001, this is incorr ect as Diallo left Mali on October 13, 2000, and ar rived in Ne w York6

on October

15, 2000. To g ain entry into the United States, Di al l o used trave l documents he ha d boug ht f rom a businessman, who trave led to N ew York with him. After arr iving in New Yor k, he
re tur ne d th e do c ume nts to t

he bu sin e ssman. Di allo kn e w i t w a s il le g a l to us e fa lse do c ume nts to enter the United States, but he wa nted t o save his life. D iallo did not apply for a sy lum sooner than he did bec ause he did not know any one in the Unit ed S tates, he did not speak Eng lish very well, and he did not know what to do. Di a llo do e s no t kn ow if hi s fathe r i s st ill a me mbe r o f t

he UPR . H e ha s n ot s po ke n to his mother or f

ather since lea ving G uinea in 2000, and he does not know whe re the y are . Diallo called
a fr ie nd in 2 00 4 a nd a sk e d h im t o r e tr ie ve his UPR me mbe rs hip c ard and an a rr e st w arr ant f

ro m hi s ho us e in G uin e a . D ia llo kn ow s th a t hi s f ri e nd c ou ld n ot e nt er hi s ho us e wi tho ut s pe a kin g to h is pa re nts . H e tol d his fr ie nd

to t e ll h is p are nts tha

t he is n ot a

ble to r e tur

n to Gu ine a . D ia llo ha d h is identification ca

rd and birth c ertifica

te in his posse ssion when he lef t Guinea be cause he had the m with him when he wa s arr ested a nd t h e p ri s o n gu ar d returne d them to him upon his rele ase f rom prison. Am on g the do c ume nts Di a llo su bmi tte d in supp or

t of his a pp lic a tio n a

re c op ie s o f h is b ir

th
cer tificate; his UPR membership ca rd; his state iden t i fi ca tion card; thre e B BC Ne ws article s reg ardingopposition parties in Guinea; two Amnesty I nternational articles a

bout the secur ity

forc es in Guinea; his “B ulletin of Hospit alization” (sic) from a Mali medical clinic; his m edica l file from the Mali clinic; his arre st warr ant; and a ta x bill for t h e y ea r 1 9 9 8 for “ Mr. Waly Diallo” in the amount of “600,000.” Also included in the record are the CI A W orld Fa ctbook entry for Guine a and the 2004 State Depa

rtment Country

Report on Human Rig hts Practices f or Guinea
. D. The IJ’s Decision7

Th e I J issu e d a

n o rd e r d a te d M ay

15 , 2 00 6, in w hic h h e de nie d th e a pp lic a tio n fo r a sylum , withholding of remova l pur suant to § 241(b)( 3) of the I NA, and relief under the CAT. I nitially , the I J found that Di a llo ha d fa ile d to fi le his a pp lic a tio n fo r a sylum

wi thi n th e on e -y e ar p e ri od of his la st
arrival in t

he Un ite d St a te s a s r e qu ir e d b y 8 C. F .R. § 1 20 8. 4( a )( 2) (i ) a nd that D ia llo ha d f

a ile d to
es t ab l i s h ex t ra o rd i n ary ci rc u m s t an ce s as co n t em p l at edb y t h e INA t h at wo u l d

ex cu s e h i s l at e f

i l i n g. See 8 C.F.R. § 1208.4(a) (5). The I J there fore deter mined that beca

use Diallo’s a sy lum application was not filed within the one- y ear deadline unde r I

NA § 208(a )(2) (B ), 8 U.S.C. § 1158(a)(2) (B ), the
a pp lic a tio n w a s ti me -b arr e d a nd Di a llo wa s st a tut or ily

ine lig ibl e fo r a sylum
. Th e I J als o f

ound tha t D ia llo wa s no t a c re dib le wi tne ss w ithre g ard to h is c la ims of

pa st perse cution on the basis of “his actua l or i mputed political opinion” or any other prote cted g round. Fur ther, the I J deter

mined that Diallo had fa iled to establish that it is more likely t h an n ot that he would be torture d either by , at the instigation of, or with the ac quiesce nce of , a public off

icial. The I J found that Diallo wa s not a cre dible witness in reg ard to his claims of pa st persec ution based “not only on his demeanor

while testifying, but a lso the rationality , internal c onsistency , i n here nt persua siveness of his testimony , and the m an n er i n which [his] testimony is consistent with other evidenc e in the re cord.” The I J identified the followingalleg edly materia l inconsistencies in Diallo’s applications and te stimony : 1) Alth o ug h Diallo claimed in both his testimony and in his asylum
a pp lic a tio ns to b e po lit ic a lly a c tiv e , h e c ou ld n ot i de nti fy his pa rty , UP R, by

its c omp le te name despite re peate d eff

orts by his counsel to elicit this information; 2) Diallo err oneously claimed that Mamadou B a wa s the leade r of the UPR e ven though the State Depa rtment Report for G uinea state s that the dec ease d Siradiou Diallo had bee n the leade r of the UP R and his widow Assiatou B ah had been e lected to he ad the UPR in September 2004, a nd the Country

Report indicates that Mamadou8

Ba was the le ader

of the Union of Democr atic Force s of Guinea [UDFG]; 3) Diallo’s original a sy lum application fa ils to m ention that Mali was his home for four months and instead states that he lef t Gu ine a , tr a ve le d to Se ne g a l f or tw o d ay s, and

the n c a me to t

he Un ite d St a te s; 4) Di a llo c la ime d in his origina l asy lum application that he left Guinea on October 11, 2001, and ar rived in the United States on October

15, 2001, with no mention of traveling t o M al i , but in his amended asylum application and in his testimony , Diallo claimed to ha ve left Guinea in June 2000 for Mali, whe re he re mained for

four months befor e coming to the United States; and 5) Dia llo informed the Asylum Offic er at his int ervie w that the pro- Mamadou Ba t-shirts w ere shipped direc tly to Mamadou B a’s office , but he stated in his testimony that the t-shirts wer e not sent to Mamadou B a’s of fice
. I n addition, the I J found cer tain portions of Diallo’s testimony and asy lum applications to be imp la us ibl e . Sp e c if

ic a lly , th e I J fo un d it imp la us ibl e that D ia llo ha d h is b ir th c e rt if ic a te and I D i n his po sse ssi on a t the tim e of his arr e st at hi s f

a the r’ s st or e and

that he wa s a

ble to g e t th e g ua

rd to
re tur n th e do c ume nts to h im w he n he wa s r e le a se d f ro m pr iso n. Se c on d, the I J con sid e re d it imp la us ibl e that D ia llo ha d n ot c omm un ic a te d w ithhis mot

he r an d fa the r sin c e le a vin g Gu ine a in light of his testimony

that his friend ha d retrie ved his U PR ca rd from Diallo’s house in Guinea the y ea r p ri o r t o t h e h ea ri n g. As a fina l matter, the I J deter mined that Diallo was not cr edible base d on his demeanor . The I J made the f

ollowing f

indings in this reg ard: Ad dit ion a lly , Re sp on de nt’ s d e me ano r d ur inghis te sti mony

is tro ub lin g to t

he Court
. The Court often he ars hor rific tale s of t orture and abuse. Usually , there is ex tensive emotional resona

nce to suc h testimony

in truthful na

rratives. Unless there is medical evidenc e of se vere Post-Traumatic Stress D i s o rd er (PTSD), the absenc e of a ny emotional resona

nce r aises doubts in the Court’s mind reg ardingthe ver acit y of claims of seve re a

buse. Respondent testified in a matter-of -fa ct voice, ne ither detac hed nor e motive, and l acking in detail, reg arding his fathe r’s store being burnedD ia ll o do es n ot a pp ea l thi s ru li ng . N or

c ou ld h e su cc es sf

ul ly c ha ll en g e th e ru li ngs in ce h is 5 reasons for failing to file his orig inal as y lum app lication within

on e y ear o f his last arriv al in the U nited States

- i.e. , h e w as n ot rep resented by counsel a t the tim e, he d id no t spea k En g lish flue ntly , and he w as unfam iliar w ith the laws of the U nited States

- are not “ extraord inary ” g iv en th at a larg e num ber o f asy lum

- seek ers un doub tedly face sim ilar ob stacles. 9 and the da ily

beating s he endur ed duringsix months of “slaver y .” Given the above , the Court ha s se ri ou s d ou

bts re g ard ingRe sp on de nt’ s c la ime d h ist ory of pas t perse cution in Guinea. Th e I J found

tha t be c a us e Di a llo ’s te sti mony

wa s n ot c re dib le , he ne e de d c or ro bo ratio n to bolster his claims. The I J noted that Diallo had submitted some unauthe n t i ca t ed documentary
e vid e nc e , in c lud inga

“ purp or te d” a rr e st w arr ant a

nd hosp ita lizatio n r e c or ds , b ut t he do c ume nts failed to mee t the corr oboration re quirements of In re Matter of S-M-J

- , 2 1 I. & N
. D e c . 7 2 2 ( B IA 19 97 ). Spe c if

ic a lly , th e I J found

that D ia llo ha d n o cr e dib le fo un datio n f or ob ta ini ngthe do c ume nts he did su bmi t, suc h as ma il en ve lop e s or state me nts fr om his Gu ine an fr ie nd . T he I J als o f ound it troubling that despite the fa ct that Diallo had be en re prese nted by experience d immigration counsel f o r a p p r o xi m a t e l y

1 8 m o n t h s p r e c e d i n g t h e h e ar i n g , h e h a d n o to f f e r e d k e y c o r r o b o r a t i o nf

o r h is claim of past perse cution and fea r of f uture pe rsec ution through r easona bly available witnesses and do c ume ntatio n, su c h a s a

state me nt f

ro m his fathe r o r f

ro m U PR me mbe rs in G uin e a re g ard inghis participation in the UPRand his arr est, or a statement from his f ather ’s frie nd in Mali with whom he had sta y ed. E. The BIA’s Order The B I A deter

mined that Diallo was not excused fr om the g ener ally applicable one-y ear d e a d l i n e f o r f i l i n g ana p p l i c a t i o n f

o r a s y l u m an d a f

f i r m e d t h a t r u l i n g f o r t h e r e a s o n s s t a t e d

b y t h e I J. 5 The B I A furthe r conc luded that the I J ’s adve rse c redibility finding was not clearly

err oneous and that i tp r o v i d e d

a s o u n d b a s i s f o r d e n y i n g e a c h o f

D i a l l o ’ s a

p p l i c a t i o n s f

o r r e l i e f f r o m r e m o v a l
. T h e B IA10

ag ree d with the I J ’s findi ng that Diallo had provide d “conf licting state ments reg ardingthe alleg ed mis tr e a tme nt he e xpe ri e nc e d in Gu ine a .” Spe c if

ic a lly , D ia llo c ou ld n ot i de nti fy the UPR by its
c omp le te name de sp ite c la imi ng that he wa s an ac tiv e UPR me mbe r wh o h a d s old me rc ha nd ise in support of t he UPR ; his testimony that Mamadou Ba is the l eade r of the UPR was contra dicted by the Country

Reports indicating that Assiatou Ba h was e lected to he ad the UPR in September 2004 and Mama dou Ba

is the leade r of the U DFG ; while Diallo explained dur ing his a sy lum interview that the UPR t
- s h i rt s w e r e s h i p p e d d i r e c t l y t o M a m a d o u B a ’ s p o l i t i c a l o f f i c e s , h e t e s t i f

i e d d u r i ng his he ari ngthat th e t- sh ir

ts w e re so ld i n h is f

a the r’ s st or e ; and

Di a llo pr ov ide d c on fl ic tin g state me nts
re g ard ingwh e the r h e ha d li ve d in Ma li b e fo re tr a ve lin g to t he Un ite d St a te s. II
. Diallo claims that the B I A er red in a ffirming the I J ’s dec ision because (1) substantial
e vid e nc e do e s n ot su

pp or t the I J’s un fo un de d c re dib ili ty de te rm inatio n, (2 ) h is d ue pr oc e ss r ig hts to a fa ir and full hea

ring wer e violated be cause his interprete r wa s not competent, and (3) t he I J err ed in d e nyinghim

wi thh old ingof

re mov a l and

re lie f und e r the CA T be c a us e he pr ov e d it is m or e lik e ly tha n n ot h e wi ll b e pe rs e c ute d if he re tur ns to Guin e a . D ia llo argue s th a t th e a dv e rs e c re dib ili ty deter mination is erroneous beca use the I J relied on minor, irrele vant inconsistencies in his testim ony that do no t g o to the he art of his c la im. Di a llo a lle g e s th a t hi s in a bil ity to spe c if

y the UPR ’s fu ll
name was a clear case of

miscommunication and is entirely irrele vant; the I J and the r espondent’s
asser tions concer

ning Ma mado u Ba’s involvement in the UPR are fac tually inacc urate ; the I J ’s
a sse rt ion s th a t D ia llo ma de an im pla us ibl e state ment c on c e rn ingc omm un ic a tio n w ithhis pa

re nts and that it was implausible for him to have his birth cer tificate and I D wit h him both at t he time of his arre st and upon his relea se fr om prison are not supported by the t ransc ript of hi s testimony ; and11

the adve rse c redibili t y d et ermination wa s improperly based, in pa

rt, on the I J ’s per sonal opinion. Diallo further

argues that the I J improperly reje cted mate rial and rele vant documenta ry evidenc e that is c on sis te nt wit

h his te sti mony , an d the I J ig no re d the Countr y Re po rt s w hic h s up po rt

his c re dib le t e s t i m o n y. III . When, as here , the B I A adopts the I J ’s dec ision with l imited additi o n al commentar y , we
re v i ew t h e d ecision of the I J as supplemented by the BIA as the final administrative order
. See Ceraj v. Muk

asey, 5 1 1 F. 3 d 5 8 3 , 5 8 8 (6 t h C i r. 2 0 0 7 ) ( ci t i n g Gilaj v. Gonzales , 408 F.3d 275, 283 (6th Cir. 2005)). We re view the leg al determinations of the I J and B I A de novo. Zoarab v. Mukase y , 524 F.3d 777, 780 (6th Cir. 2008). We revie w factual determinations under the substantial evidence standard. Id . This means “w e must uphold t he administrative de cision if it is ‘supported by
re as o n able, substantial, and probative e vidence on the re cord c onsidered a s a whole.’ ” Id . To
reve rse the B I A’s dete rmination under this defe rential standard, we “must find that the evide nce ‘ not only supports a contra

ry conclusion, but indeed c om pe ls it.’” Almuhtaseb v. Gonzale s , 453 F.3d 743, 749 (6th Cir. 2006) (e mphasis in origina l). IV. A. P r oc e dur al D ue P r oc e ss Diallo claims that he wa s denied his due pr ocess r ights in conne ct i o n wi t h his hearing beca use the tra

nscript re flec ts that the interpre ter ha d substantial difficulty understandinghim and
c ou ld n ot t

ra ns la te his wo rd s o n s e ve ra l oc c a sio ns , wh ic h p re jud ic e d h im b e c a

us e the I J den ie d h is application base d on his testimony . Respondent claims that this argument is not properly befor e the court be cause Diallo did not present a due proce ss claim to the BIA and thus fa iled to preser ve the12

issue for a

ppellate r eview. Re spondent claims that in any ev en t , Di al l o has not shown that the translation at the he aring , which wa s conducte d in Fre nch at his request, was inade quate a nd that he
wa s d e nie d a

fu ll a nd fa ir he ari nga s a

re su lt o f a

ny mis take s. Aliens are entitled to due proce ss of law in de portation proce eding s. Denk o v. INS, 351 F.3d 7 1 7 , 7 2 6 (6 t h C i r. 2 0 0 3 ) ( ci t i n g Reno v . Flores, 507 U.S. 292, 306 (1993)). D ue proc ess re quires that an alien be afforde d a full and fair hea ring
. Castellano-Chacon v. INS, 34 1 F .3 d 53 3, 55 3 ( 6th Cir . 2 00 3) . T o e sta

bli sha du e pr oc e ss v iol a tio n in de po rt a tio n p ro c e e di ngs, an a lie n mu st dem o n s t ra t e “e rror

and substantial pre

judice.” Gishta v. Gonzales , 404 F.3d 972, 979 ( 6th Cir. 2005). An

a pp e llate c ourt

c ann ot c on sid e r a

du e pr oc e ss c ha lle ng e that in vo lv es a co rr e c ta ble proce dural e rror

unless the alien ha s first prese nted that claim to the B I A. Sterkaj v. G onzales , 439 F .3 d 273 , 279 (6 th Cir . 200 6)
. “ A due pr oc e ss ch a lle ng e a lle g ing a fa ilure to b e he ard me anin g fu lly beca use no interpre ter was provided is pr ocedur al in nature and there fore must be raised be fore the BI A.” Cap ric v . A sh c ro

ft , 3 55 F .3 d 1 07 5, 10 88 (7 th C ir . 2 00 4) ; s e e a ls o S h e h u v . G o n z a les , 151 Fe d
. Ap p x . 4 3 7 , 4 4 1 (6 t h C i r. 2 0 0 5 ) ( ci t i n g Gi sh ta , 40 4 F .3 d a t 97 8) (a c la im of a du e pro cess vio la tio n b a se d o n a

n in te rp re te r’ s in a

bil ity to p ro pe rl y

and a de qu a te ly

tr ans la te test im on y

in proce eding s befor e an I J is waived if the alien fa ils to complain about the interpre ter’s a lleg ed defic iencies dur ing the hear ing)
. Be cause Diallo’s claim that he w as denie d competent tra nslation
s e r v i c e s a tt h e h e ar i n g a l l e g e s a p r o c e d u r a l e r r o r , h e w a s o b l i g a t e d

t o r a i s e t h i s c l a i m b e f

o r e t h e B IA so as to allow the B I A an oppor tunity to corre ct the er

ror. Dia llo waived this claim by failing to do
so . H e is the re fo re pr e c lud e d f ro m pu rs uin g the c la im o n a

pp e a l. Assuming Dia llo had adequately prese nted his due proce ss c laim to the BIA, we would find13

the claim t o b e wi t h out merit. Diallo argues that “the rec ord is reple te” with instance s where the interpre ter wa s unable to translate his testimony , but he points to only a handf ul of instances w here the interpre ter wa s unable to translate his testimony prec isely . There is no indication in the recor d that the difficulty

with the translation stemmed fr om the inadequa cy of the tra nslator. I n the four instances c ited by

Diallo wher e the inter

prete r had diff

iculty translating his testimony , the interpre ter simply asked that the question be re peate d once, he stated at one point tha t h e d i d n o t k now the Eng lish transl at i on of a w ord, and he explained on two occa sions that Diallo was not speaking Fr ench. Mor eover , the problems noted by Diallo wer e minor in that he wa s still able to conve y that he wa s beat with a plasti c im plement and to explain how he trave led to Mali, so there is no re ason to believe that the outc ome of the pr ocee ding w ould have be en diffe rent ha d the translation issues not occur red. Thus, D iallo cannot esta blish a v i o l at i o n of his due proc ess rig hts based on the translation issues he c ites. B. Withhol din g of Rem oval/Relief Und er t he CAT To be e nti tle d to re lie f o n a n a pp lic a tio n f

or wi thh old ingof re mov a l, an a lie n mu st e sta

bli sh that there is a clea

r probability that his “ life or fre edom would be threatened in the proposed c ountry of re moval on acc ount of rac e, re ligion, nationality , membership in a pa rticular so cial group, or political opinion.” Vasha v. Gonzales , 410 F.3d 863, 875 (6th Cir. 2005) (quoting 8 C.F .R. § 12 08 .1 6( b) ). An

a lie n s a tis fi e s the “ c le ar pr ob a bil ity” sta nd ard if he de mon str a te s “ it i s mo re lik e ly than not” he w ould be subj ect to perse cution on the basis of a protec ted ground if he we re r emoved. Fang Huang v. M

u kasey , 523 F.3d 640, 651 ( 6th Cir. 2008) (quotation omitted). To qualify for pr ote c tio n und e r t

he CA T, the a lie n must sh ow tha t “he wo uld mor e lik e ly tha n n ot b e su

bje c te d to torture a fter be ing d eporte d” to his home country
. Ceraj , 511 F.3d at 594 (citing 8 C.F.R. §The RE AL I D Act of 2 005, Pu bl L . N o. 109- 13, D iv . B , § 10 1(h)(2), 11 9 S tat. 2 31 at 30 2 6 (2005 ), n ow allows con sideration of incons istencies, inacc uracies or false hood s that do not g o to the heart o f the claim , b ut on ly for applicatio ns filed

after May

11 , 2 005, the effectiv e da te of the en actm ent. See Kob a v. Mukase

y , 5 46 F.3 d 7 41, 74 9 n . 1 (6th Cir. 2008 ). Beca use petitioner filed h is app lication before that d ate, the sta ndard set forth in Has san applies to this case.

14 1208.16(c) (2))
. A fi n d i n g that a petitioner la cks cr edibility is a sufficie nt basis to deny withholding of
remova l and protec tion under the CAT. Zhuang v. Mukase y , No. 07-4353, 2008 W L5272777, *6 (6th Cir. Dec . 18, 2008) (unpublished de cis i o n ). A cr ed ibilit y deter mination is a finding of

fac t subject t o t h e s u bstantial evidenc e test. Ndrecaj v. M ukasey , 522 F.3d 667, 674 ( 6th Cir. 2008). Thus , a n a pp e llate c ourt

may no t r e ve rs e an I J’s c re dib ili ty de te rm inatio n me re ly be c a us e it w ou ld have rea ched a contra

ry conclusion. Id. Rather, the reve rsal of a n adver se cr edibility

deter mination is warr anted only

wher e “a

ny rea sonable a djudicator would be compelled to conc lude to the contra ry .” See H

assan v. Gonzales ; 403 F.3d 429, 434 (6th Cir. 2005); 8 U.S.C. § 1252(b)(4) (B ). Al tho ug h “ an a dv e rs e c re dib ili ty fi nd ing is af fo rd e d sub sta

nti a l def e re nc e , th e fi nd ingmus t be supported by

specific rea sons.” Id . I n addition, “[a]n adverse c redibility finding must be based
on issue s th a t g o to th e h e art o f th e a p p li c an t' s c la im
. [I t] c an n o t b e b a s e d o nanir r e le vant inc on sis te nc y . I f d isc re pa nc ie s c ann ot b e vie we d a s atte mpt s b y the a pp lic ant t o e nh anc e his c la ims of per secution, they

have no be aringon cre dibilit y . ” Id
. A deter mination that testim ony

is not 6

cre dible is proper ly supported when it is based on testimony that is inconsistent, contradicts cur rent country conditions, or is inherently improbable. Matter of

S-M- J- , 21 I . & N. De c . at 73 1. Whil e omi ssi on s of fa c t in an a sylum a pp lic a tio n o r d

ur ingte sti mony

a lon e mig ht n ot s up po rt

an a dv e rs e
cre dibilit y

deter mination, the omissi on of key events c oupled with numerous inconsist encie s may p ro v i d e a spe cific a

nd cog ent re ason to support an a dverse cre dibilit y finding
. Matter of A-S- , 21The RE AL I D Act of 2 005 added this standard

to the sta tutory

sch em e an d m ade this p articular 7 prov ision, un lik e m ost p rov isions of the A ct, a pplicab le to pend ing case s. See Diak ite v. Mukase

y , N o. 08- 3500 , 2 009 WL 6 8170 , * *5- 6 (6 th C ir. Jan. 8, 2009 ) (unp ublishe d d ecision) (citing Pu b. L. No. 10 9- 13, D iv . B , § 10 1(h)(3), 11 9 S tat. 2 31 at 30 5- 06). 15 I . & N . Dec . 1106, 1110 (B I A 1998). An applica

nt is not necessar ily

require d to submit corr oborating documents in order to satisfy his burden of pr oof. “[ T]he testimony of t he applicant, if cre dible, may be sufficient to sustain the burden of proof without cor

rob o ra t ion.” Do ro sh v . A sh c ro ft , 398 F.3d 379, 382 ( 6th Cir. 2004) (citing 8 C.F.R. §§ 208.13(a) ; 208.16( b)). Where, howe ver, it is rea sonable to expect an a pplicant to p ro vid e c or

ro bo ratin g e vid e nc e fo r c e rt a in a lle g e d fa c ts pe rt a ini ng to the sp e c if ic s o f h is c la im, failure to provide such e vidence without an adequate expl anation ca n support a finding the applica nt has fa iled to meet his burden of proof. Ab du lai

v . A sh c ro ft , 239 F. 3 d 5 4 2 , 5 5 4 (6th Cir. 2001); Matter of S-M-

J- , 21 I . & N . Dec . at 725-26. A re viewing court may not reve rse a

n ag ency finding as to the ava ilability

of cor roborating e vidence unless the cour t is compelled to conclude that such evidenc e is unava ilable. 8 U.S.C. § 1252(b)(4)
. 7 We find that the adve rse c redibility deter mination in thi s case is su p p o rted by substantial
e v i d e n c e an d

m u s tb e u

p h e l d
. W e r e a c h t h i s r e s u l td e s p i t e o u r c o n c l u s i o nt h a tt h e IJ an d t h e B IA
err ed in deter

mining that Diallo’s testimony was deficient in three pertinent respec ts. The fir st such
c re dib ili ty

iss ue inv olv e s th e I J’s d e te rm inatio n th a t D ia llo “ e rr on e ou sly c la ime d M a ma do u B a

to be the lea der of

the UPR.” The pr oblem with this d etermination is t he I J relied on e vidence reg ardingthe political situation in Guinea in 2004, which wa s sever al y ear s after Diallo had lef

t the
c ountr y . T he re is n o e vid e nc e in t he a dmi ni st rat iv e re c or d to sh owthat D ia llo ’s a sse rt ion is
err oneous insofar

as it pertains to the re levant time per iod, i.e., the per iod when Diallo was living16

in Guinea a

nd was alleg edly active in the UP R. The second credibility issue of concern is the I J ’s fi nd ing that de sp ite re pe a te d e ff or ts by Di a llo ’s c ouns e l to e lic it fr om him the fu ll n a me of the UPR , Di al l o wa s u n ab l e to i d en t i fy t h e UP R b y i t s co mp l et e na m e. I t i s n o t cl ea rf r o m t h e ex ch an ge betwee n counsel a

nd Diallo on which the I J relies whether Diallo did not know the full name of the UPR or wh e the r h e did

no t un de rs tand

wh a t in fo rm a tio n h e wa s b e ing a sk e d to p ro vid e . T hu s, thi s porti o n o f t he testimony

does not provide a

rea sonable ba sis for conc luding that Dia llo was not
c re dib le . T hir d, a lth ou g h th e I J found it imp la us ibl e that Di a llo ha d h is b ir th c e rt if ic a te and I D w ith him when he wa s arr ested at his father’s store and that he wa s able to g et the prison g uard to re turn these doc uments to him upon hi s relea se, the I J does not sug g est that the documents themselves are fo rg e d o r t h a tD i a l l o i s n o tw h o h e c l a i m s t o b e . A c c o r d i n g l y , t h e I J’ s d o u b t s c o n c e r

n i n g t h is testimony are not sufficient to ca ll Diallo’s cre dibilit y into question. The I J did, how ever , proper ly rely on other c redibility issues which g o to the hear t of Diallo’s claim and whic h prec lude us from concluding that any rea sonable a djudicator would be compelled to rea ch a dif

fer ent re sult. The I J rea sonably relied on the inconsistent acc ounts give n by Diallo as to whether

the t-shirts supporting the UPR were sold at his father’ s store or whe ther they wer e shipped direc tly

to Mamadou B a’s offi ce. The cr ux of Diallo’s c laim is that he was ar rested a nd imprisoned for eng ag ing in busine ss a ctivities that suppor ted Mamadou Ba ’s opposition par ty . As the business ac tiviti es g o to the hear t of the asylum claim, the I J was entitl ed to re ly on discrepa

ncies in D iallo’s acc ounts a s to how he and his f ather conducte d their business in finding that Diallo was not cre dible. I n addition, the I J was e ntitle d t o co n clude that it was impl ausible that Diallo had not communicated w ith his parents since lea ving G uinea in lig ht of all of the testimony Diallo provided.17

Di a llo tes ti fi ed th at he had c a lle d a fr ie nd in G uin e a

the y e ar b e fo re the he ari ngand a sk e d h im t o
re tr ie ve his UPR

c ard fr om hi s h ou se , a

nd the fr ie nd

ha d o bta ine d D ia llo ’s UPR c ard and a rr e st
war rant for him. Diallo also testified t h at h i s fr i end could not have enter ed his house without sp eaki ng to h is p are nts . I t is re a so na ble to e xpe c t th a t if

Di a llo wa s a

ble to s e nd

a fr ie nd to h is pare nts’ house in Guinea, and i f t he friend had to have spoken with Diallo’s parents befor e re trieving documents fr om the house and se nding the m to Diallo, then Diallo would know t he wherea bouts of his pa r e n ts
. T h e inh e r e n t in c o n s is te n c ie s b e tw e e n D ia ll o ’ s te s ti mo n y c o n c e r n in g th e r e tr ie val of documents fr om his house and his t estimony that he did not know wher e his pare nts were , he had been una ble to communicate w ith them since leaving Guinea, and he could not obtain a letter from his fathe r b e c a

us e he did

no t kn ow ho w to accom pli sh that, a re su ff ic ie nt t o c a st d ou

bt o n h is
c r e d i b i l i t y. The I J also proper ly relied on discrepa ncies in Diallo’s a ccounts c oncer ning his travels afte r leavingGuinea. Whether Diallo spent time in Mali has an important bea ring on his pe rs ecution claim bec ause he has submitted evidenc e that he was treated i n Mali for injuries that re sulted from be a tin g s a nd ma ltr e a tme nt he a lle g e dly e xpe ri e nc e d dur ing his imp ri so nme nt in G uin e a . Y e t, D ia llo omitt e d f r o m h is o r ig in a l a s y lum a p p li c a ti o n th e im

p o rta n t d e ta il th a t h e w e n t to M a li for four months afte r l eavingGuinea, de spite the fac t that the asylum application expressly asks the applica

nt to describe in detail his trip to the Unit ed S tates from his home county and asks whe ther he trave led thr ou g h, or

re sid e d in , a

ny oth e r c ountr

y be fo re e nte ri ng the Un ite d State s. I n th e a pp lic a tio n, Di a llo indicated that he last left Guinea on October

11, 2001, and ente red the United S tates on October 15,As m entione d earlier, O ctober 12, 20 00, is a lso n oted as the date of en try on the orig inal as y lum 8 applicatio n. The I J found that D iallo en tered th e U nited States on or ab out th at date
. 18 2001. Diallo states in the application that he “lef t Guinee (sic) and came to Seneg al for 2 da y s and 8 then I came to U nited State (sic).” At the hea ring , Diallo offe red a

completely

differ ent ver sion of his travels. He testified that he we nt to Mali on J une 6, 2000, the da y afte r he w as re l ea s ed from pr iso n, he sta

y e d in a ho sp ita l th e re fo r 2 0 d ay s, and he the n s tay e d w itha

fr ie nd of his fathe r’ s, so that he wa s in Mali a total of four months. He te stified that h e l eft Mali on Oc tober 13, 2000, he
arr ived in the United States on Oc tober 15, 2000, a nd the October 2001 date on his orig inal asylum
a pp lic a tio n w a s a

mis take that w a s ma de be c a us e he did no t kn ow ho w t o r e a d E ng lis h. Di a llo a lso testified in response to questioning about the asylum application that he neve r we nt to Seneg al, he told the office r at the asylum interview that he never went to Seneg al, and he informed the of fice r that th e state me nt in the a sylum a pp lic a tio n that he ha d do ne so wa s fa lse
. Di a llo ne ve r a de qu a te ly explained a

t the asylum he aring , howeve r, why his origina l asy lum application stated that he w ent to Seneg al, and he offe red no e x planation for w hy he omitted to mention in the asy lum application that he we nt t o M a li f

or fo ur mon ths . T his wa s a

c ri tic a l di sc re pa

nc y , a nd the I J wa s e nti tle d to re ly
o ni tt o d i s c o u n tD i a l l o ’ s c r e d i b i l i t y. I n li g ht o f t

he de fi c ie nc ie s in

Di a llo ’s testimo ny

and the inc on sis te nc ie s b e tw e e n h is testimony and his asylum applicati o n s , the I J was e ntitled to require Dia llo to provide additional
corr oborating evidenc e to document his activities on behalf of the UPR a nd his stay in Ma li. The re is no basis for disturbing the I J ’s finding that Diallo could have obtained letter s from his fathe r and from the indivi dual in Mali with whom he had stay ed. Diallo fa iled to adequately explain why

he had bee n unable to communicate with his father since lea ving G uinea, e ven thoug h he testified that19

he had be en able to obtain his UPR car d and his arr est war rant from a fr iend who we nt to his father’s house the pre cedingy ear

and who would have spoken to his father at that time. Nor doe s the rec ord ind ic a te wh y

Di a llo wo uld

have be e n una

ble to o bta in c or

rob orat in g ev iden c e of

his tim e in M a li bey ond his twenty -day

hospitaliz ation. Dial lo provided no explanation at the hea ring for the la ck of c or ro bo ratin g e vid e nc e of

his e xten de d s tay

in M a li. As a fi na l matte r, we are no t in a po sit ion to d ist ur b th e I J’s a sse ssm e nt o f D ia llo ’s c re dib ili ty based on his demea

nor. The I J is in the best posi tion to determine cr edibility based on the demea

nor of the witness a

nd the pre sentation of testimony
. See Gjolaj v. Keisler, 25 2 F e d. Ap px. 6 4, 68 (6 th Cir. 2007). The I J found Diallo’s demea nor troubling beca

use he testified in a “matter -of- fac t voice, neither detache d nor emoti ve, and lacking in detail, reg arding his fathe r’s store being burned a nd the daily beating s he endur ed duringsix months of ‘slaver y .’” The I J g ave leg itimate, in-depth rea sons for discounting Diallo’s cre dibilit y based both on his observation of aliens who had testified before the I J a s to sim ila

r e xpe ri e nc e s and

the de fi c ie nc ie s and

inc on sis te nc ie s in

Di a llo ’s te sti mony . T he se
rea sons constitute substantial evidence to support the I J ’s adve rse c redibility deter mination. Be cause we are bound to uphold the I J ’s adverse credibility deter mination as supported by substantial evidence , it follows that we must uphold the I J and B I A’s finding that Diallo has not met his burden of pr oof for

withholding of r emoval or r elief unde r the CAT.

V. For the fore g oing r easons, we DENY Diallo’s petition for re view of the BIA’s re moval o r der.