UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

BILLO FALL; MADIAMA MBAYE, 

 Petitioners, 

v. 

ERIC H. HOLDER, JR., 

United States Attorney General, 

 Respondent. 

No. 13-9560 

(Petition for Review)

 

ORDER AND JUDGMENT*

 

Before KELLY, ANDERSON, and MATHESON, Circuit Judges. 

 

 Billo Fall and her husband, Madiama Mbaye, natives and citizens of Senegal, 

petition for review of a final order of removal from the Board of Immigration 

Appeals (BIA). Because petitioners’ challenge to the agency’s denial of their 

untimely asylum application does not raise a constitutional claim or question of law, 

we lack jurisdiction to review it and dismiss that portion of the petition. Ferry v. 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously to grant the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 27, 2014

Elisabeth A. Shumaker 

Clerk of Court
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Gonzales, 457 F.3d 1117, 1130 (10th Cir. 2006); 8 U.S.C. § 1158(a)(3). We do, 

however, have jurisdiction to consider the agency’s denial of restriction on removal, 

8 U.S.C. § 1252(a), and deny the remainder of the petition. 

Background 

 Ms. Fall and her husband were admitted to the United States on nonimmigrant 

visas in 2001 and 2000, respectively, but overstayed. In 2007, the government 

initiated removal proceedings. Petitioners conceded removability and filed 

applications for asylum, restriction on removal, and relief under the Convention 

Against Torture (CAT). Petitioners claimed eligibility on account of their political 

opinion and membership in a particular social group. 

 In response to whether she or anyone closely associated with her had 

experienced past harm, Ms. Fall indicated on her application that her aunt was a 

victim of female genital mutilation (FGM). She also stated that she feared returning 

to Senegal because she is afraid that she and her daughters will be subjected to the 

procedure. Ms. Fall’s husband sought derivative asylum relief, but filed a separate 

application for restriction on removal and CAT protection. In his application, 

Mr. Mbaye stated that his wife was tortured in Senegal because she refused to 

undergo FGM. He also stated that he fears returning to Senegal because he will be 

beaten and tortured for not allowing his wife and daughters to be circumcised. 

 In a hearing before an Immigration Judge (IJ), Ms. Fall testified that she is 

from a tribe that practices FGM. She said that in 1992 her aunts and uncles beat her, 
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and that the beating intensified when she voiced her opposition to FGM. She 

submitted photos of scars she claims are from that attack. She testified that she 

suffered other beatings, but that the 1992 attack was the most severe. Ms. Fall’s 

husband and sister also testified. 

 At the end of the hearing, the IJ denied petitioners’ asylum application as 

untimely, found their testimony incredible, and denied their requests for restriction 

on removal and CAT protection. In evaluating Ms. Fall’s testimony, the IJ focused 

on her failure to mention the 1992 attack in her application. He found her excuse for 

the omission—that she was ashamed—unpersuasive; specifically, he could not square 

Ms. Fall’s ability to mention her fear of FGM, but inability to mention a prior 

FGM-related beating. The IJ noted that Ms. Fall did not produce any evidence 

corroborating the cause of her scars and that her testimony about the severity of the 

1992 beating conflicted with her sister’s. Consequently, the IJ concluded that the 

record failed to establish that Ms. Fall suffered past persecution. In rejecting 

Ms. Fall’s fear of future persecution, the IJ observed, among other things, that FGM 

is criminalized in Senegal, it is on the decline, and it is not widespread in urban areas 

such as Dakar, where Ms. Fall has roots. Citing Matter of A-K-, 24 I. & N. Dec. 275, 

278-79 (BIA 2007), the IJ also rejected petitioners’ claim to restriction on removal 

based on their fear that if they return to Senegal, their daughters may be subjected to 
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FGM. Admin. R. at 52.1

 The BIA upheld the IJ’s determination that petitioners 

were statutorily ineligible for asylum because their asylum application was untimely 

filed, upheld the IJ’s denial of restriction on removal, found petitioners’ CAT claim 

waived, and dismissed petitioners’ appeal. 

 In this court, petitioners challenge the BIA’s asylum and restriction on 

removal rulings. As previously noted, however, we lack jurisdiction to review the 

agency’s denial of asylum. Further, petitioners have apparently abandoned any claim 

that Mr. Mbaye is entitled to restriction on removal. Their opening brief takes issue 

with the BIA’s denial of Ms. Fall’s request for restriction on removal only, 

challenging the BIA’s determinations that she failed to (1) testify credibly, 

(2) establish past persecution, or (3) demonstrate a clear probability of future 

persecution. 

Discussion 

In this case, it is the BIA’s brief, single-member decision that we review. 

Rivera-Barrientos v. Holder, 666 F.3d 641, 645 (10th Cir. 2012). We “will not 

affirm on grounds raised in the IJ decision unless they are relied upon by the BIA in 

its affirmance.” Id. (internal quotation marks omitted). “However, when seeking to 

 

1

 We note that petitioners have waived any challenge to that ruling by failing to 

exhaust it before the BIA or raise it in their opening brief in this court. See Sidabutar 

v. Gonzales, 503 F.3d 1116, 1118 (10th Cir. 2007) (“[W]e generally assert 

jurisdiction only over those arguments that a petitioner properly presents to the 

BIA.”); Krastev v. INS, 292 F.3d 1268, 1280 (10th Cir. 2002) (“Issues not raised on 

appeal are deemed to be waived.”). 
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understand the grounds provided by the BIA, we are not precluded from consulting 

the IJ’s more complete explanation of those same grounds.” Uanreroro v. Gonzales, 

443 F.3d 1197, 1204 (10th Cir. 2006). 

 “We review the BIA’s legal conclusions de novo,” Rivera-Barrientos,

666 F.3d at 645, and its factual findings, including credibility determinations, for 

substantial evidence, Uanreroro, 443 F.3d at 1204, 1205. “In this circuit, the 

ultimate determination whether an alien has demonstrated persecution is a question of 

fact” also subject to the substantial-evidence standard. Zhi Wei Pang v. Holder, 

665 F.3d 1226, 1231 (10th Cir. 2012) (internal quotation marks omitted). Under that 

standard, “[t]he BIA’s findings of fact are conclusive unless the record demonstrates 

that any reasonable adjudicator would be compelled to conclude to the contrary.” 

Rivera-Barrientos, 666 F.3d at 645 (internal quotation marks omitted). 

 Our review of a corroboration finding is circumscribed by 8 U.S.C. 

§ 1252(b)(4), which states that an adjudicator’s determination shall not be reversed 

by a court “unless the court finds . . . that a reasonable trier of fact is compelled to 

conclude that such corroborating evidence is unavailable.” See also 8 U.S.C. 

§ 1158(b)(1)(B)(ii) (“Where the trier of fact determines that the applicant should 

provide evidence that corroborates otherwise credible testimony, such evidence must 

be provided unless the applicant does not have the evidence and cannot reasonably 

obtain the evidence.”); id. § 1231(b)(3)(C) (applying § 1158(b)(1)(B)(ii)’s standards 

to restriction on removal). 
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 “To obtain restriction on removal, the alien must demonstrate that her ‘life or 

freedom would be threatened in [the proposed country of removal] because of [her] 

race, religion, nationality, membership in a particular social group, or political 

opinion.’” Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005) (quoting 

8 U.S.C. § 1231(b)(3)(A)). 

An alien may create a rebuttable presumption of eligibility for 

restriction on removal by either (1) demonstrating past persecution in 

the proposed country of removal on account of one of the protected 

grounds; or (2) showing that it is more likely than not that the alien 

would be subject to persecution on one of the specified grounds upon 

returning to the proposed country of removal. 

Sidabutar, 503 F.3d at 1123-24 (citations and internal quotation marks omitted). 

“Persecution is the infliction of suffering or harm upon those who differ . . . in a way 

regarded as offensive and requires more than just restrictions or threats to life and 

liberty.” Zhi Wei Pang, 665 F.3d at 1231 (internal quotation marks omitted). 

Credibility and Past Persecution

 Petitioners contend that the BIA erred in upholding the IJ’s adverse credibility 

finding and in concluding that Ms. Fall failed to demonstrate past persecution. We 

disagree. 

 The agency gave “specific, cogent reasons for disbelieving” Ms. Fall’s 

testimony. Uanreroro, 443 F.3d at 1204 (internal quotation marks omitted). The 

BIA highlighted the evidence the IJ cited in support of his adverse-credibility 

finding; namely, that Ms. Fall testified she was beaten for resisting FGM but omitted 

any mention the beatings in her application. The BIA agreed with the IJ that 
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Ms. Fall’s explanation for not mentioning the beatings was unpersuasive. The BIA 

noted that although Ms. Fall submitted photos of scars, she did not provide any 

medical testimony or other corroborative material linking the scars to the 1992 

beating. And the BIA stated that Ms. Fall’s testimony about the severity of the 1992 

beating was inconsistent with her sister’s statement that Ms. Fall’s injuries resulted in 

only “‘a little bit’ of bleeding.” Admin. R. at 5. 

 Omissions, implausible explanations, and inconsistent testimony are proper 

credibility factors. See Ismaiel v. Mukasey, 516 F.3d 1198, 1205-06 (10th Cir. 2008) 

(observing that agency may discredit an applicant’s testimony about significant 

incidents where applicant did not disclose that information at earlier stages in the 

proceedings); Elzour v. Ashcroft, 378 F.3d 1143, 1152 (10th Cir. 2004) (explaining 

that an “adverse credibility determination may” stem from “inconsistencies in the 

witness’ testimony, lack of sufficient detail, or implausibility”). Having reviewed the 

record in accordance with the prescribed deferential standard of review, we cannot 

conclude that the agency’s credibility finding was substantially unreasonable or that 

any reasonable adjudicator would be compelled to conclude that Ms. Fall must be 

considered a credible witness. Nor would any reasonable adjudicator be compelled 

to conclude that corroborating evidence was unavailable. Indeed, petitioners make 

no argument concerning the unavailability of corroborating evidence under 8 U.S.C. 

§ 1252(b)(4). To prevail on their arguments to the contrary, petitioners would 
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require us to reweigh the evidence, which we do not do. See Yuk v. Ashcroft, 

355 F.3d 1222, 1236 (10th Cir. 2004).2

 Moreover, we reject petitioners’ argument that the BIA erred in denying 

Ms. Fall’s claim of past persecution. Our review confirms that substantial evidence 

supports the agency’s determination on this point and that no reasonable adjudicator 

would be compelled to conclude otherwise. 

Future Persecution

 Petitioners next assert that the BIA erred in upholding the IJ’s determination 

that Ms. Fall failed to establish that it is more likely than not that she will be 

persecuted upon her return to Senegal. This argument is also unavailing. 

In upholding the IJ’s determination, the BIA, among other things, noted that 

Ms. Fall’s husband and family are opposed to FGM, none of Ms. Fall’s sisters has 

been circumcised, and Ms. Fall’s “11 year old daughter, who has been living with a 

relative in Senegal since she was born, has not been subjected to the procedure” 

either. Admin. R. at 5 (citing Ritonga v. Holder, 633 F.3d 971, 977 (10th Cir. 2011)

(noting that continued presence of family in native country without any harm 

 

2

 We lack jurisdiction to consider petitioners’ unexhausted (and dubious) 

contentions that (1) there was no reason for Ms. Fall’s beatings to be included in her 

application, (2) it might not be obvious to an applicant that she must provide all 

information on her application, which contains limited space, (3) corroborating 

evidence would have repeated Ms. Fall’s allegations, and (4) Ms. Fall’s sister’s 

testimony obviated the need for further corroboration. See Sidabutar, 503 F.3d 

at 1118 (stating that court of appeals generally does not assert jurisdiction over 

unexhausted claims). 
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“undercuts . . . asserted fear of persecution”)). Additionally, the BIA observed that 

the 2010 State Department Country Report states that “only 28% of girls in Senegal 

have undergone FGM,” that the prison sentence for FGM is “6 months to 5 years,” 

and that “the government prosecute[s] violators of the law.” Id. at 5-6. Thus, the 

BIA concluded that “respondents have not demonstrated that they could not seek 

protection from the government.” Id. at 6 (citing Rivera-Barrientos, 666 F.3d at 646

(observing that harm must be “committed by the government or forces the 

government is either unable or unwilling to control” (internal quotation marks 

omitted)). 

 Our review confirms that substantial evidence supports the agency’s 

determination that Ms. Fall failed to demonstrate a clear probability of future 

persecution and that no reasonable adjudicator would be compelled to conclude 

otherwise. Again, petitioners’ contrary arguments would require us to reweigh the 

evidence, which we do not do. See Yuk, 355 F.3d at 1236. 

Conclusion 

 For the foregoing reasons, the petition for review is dismissed in part and 

denied in part. 

 Entered for the Court 

 Paul J. Kelly, Jr. 

 Circuit Judge