UNITED STATES CO URT 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 husba nd, Madiama Mbaye, natives and citizens of Senegal, petition for review of a final order of removal from the Board of Immigration Appeals (BIA). Because pe titioners’ challenge to the agency’s denial of their untimely asylum application doe s not raise a constitutional claim or question of law, we lack jurisdiction to review it a nd dismiss that portion of the petition. Ferry v.

* After examining the briefs and appella te record, this pa nel 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 27, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - Gonzales , 457 F.3d 1117, 113 0 (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 admitt ed to the United States on nonimmigrant visas in 2001 and 2000, resp ectively, but overstayed. In 2007, the government initiated removal proceedings. Petitione rs conceded removability and filed applications for asylum, re striction on removal, and relief under the Convention Against Torture (CAT). Petitioners clai med eligibility on accoun t of their political opinion and membership in a particular social group. In response to whether she or any one 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 af raid that she and her daughter s will be subjected to the procedure. Ms. Fall’s husband sought derivative asylum re lief, but filed a separate application for restriction on removal and CAT protection. In his application, Mr. Mbaye stated that his wife was tortured in Sene gal because she refused to undergo FGM. He also stated that he fear s returning to Senegal because he will be beaten and tortured for not allowing his wi fe and daughters to be circumcised. In a hearing before an Immigration Judg e (IJ), Ms. Fall testified that she is from a tribe that practices FGM. She said that in 1992 he r aunts and uncles beat her,- 3 - and that the beating intensified when she voiced her opposition to FGM. She submitted photos of scars sh e claims are from that att ack. She testified that she suffered other beatings, but that the 1992 attack was the most severe. Ms. Fall’s husband and sister al so testified. At the end of the hearing, the IJ de nied petitioners’ asyl um application as untimely, found their testimony incredible, and denied their reque sts 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—unpersuasi ve; specifically, he could not square Ms. Fall’s ability to menti on her fear of FGM, but in ability 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 esta blish that Ms. Fall suffered pa st persecution. In rejecting Ms. Fall’s fear of future persecution, th e IJ observed, among ot her 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’ clai m to restriction on removal based on their fear that if th ey return to Senegal, their daughters may be subjected to- 4 - FGM. Admin. R. at 52. 1 The BIA upheld the IJ’s de termination that petitioners were statutorily ineligible for asylum b ecause 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 previous ly noted, however, we lack jurisdiction to review the agency’s denial of asylum. Further, peti tioners have apparently abandoned any claim that Mr. Mbaye is entitled to restriction on removal. Th eir 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) de monstrate 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 Ci r. 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.”).- 5 - understand the grounds provi ded by the BIA, we are not precluded from consulting the IJ’s more complete explan ation 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 s ubstantial-evidence standard. Zhi Wei Pang v. Holder , 665 F.3d 1226, 1231 (10th Cir. 2012) (internal quotation ma rks omitted). Under that standard, “[t]he BIA’s findings of fact are conclusive unl ess the record demonstrates that any reasonable adjudicator would be co mpelled to conclude to the contrary.”
Rivera-Barrientos , 666 F.3d at 645 (internal quot ation marks omitted). Our review of a corroboration findi ng is circumscribed by 8 U.S.C. § 1252(b)(4), which states th at an adjudicator’s determin ation shall not be reversed by a court “unless the court finds . . . that a reasonable trier of fa ct is compelled to conclude that such corrobora ting evidence is unavailable.” See also 8 U.S.C. § 1158(b)(1)(B)(ii) (“Where the trier of fact determ ines that the a pplicant should provide evidence that corroborates otherwis e 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 § 11 58(b)(1)(B)(ii)’s standards to restriction on removal).- 6 - “To obtain restriction on removal, the al ien must demonstrate that her ‘life or freedom would be threatened in [the propo sed country of removal] because of [her] race, religion, nationality, me mbership 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 rebuttabl e 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 mo re 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 in ternal quotation marks omitted). “Persecution is the infliction of suffering or harm upon thos e who differ . . . in a way regarded as offensive and requi res more than just restricti ons 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 demonstr ate 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 fo r resisting FGM but omitted any mention the beatings in her applicati on. The BIA agreed with the IJ that- 7 - 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 th e scars to the 1992 beating. And the BIA stated that Ms. Fa ll’s testimony about the severity of the 1992 beating was inconsistent with her sister’s statemen t that Ms. Fall’s inju ries resulted in only “‘a little bit’ of bleed ing.” 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 th at information at ea rlier stages in the proceedings); Elzour v. Ashcroft , 378 F.3d 1143, 1152 (10t h Cir. 2004) (explaining that an “adverse credibility determination may” stem fro m “inconsistencies in the witness’ testimony, lack of su fficient detail, or implausib ility”). Having reviewed the record in accordance with the prescribed deferential standard of review, we cannot conclude that the agency’s credibility findi ng was substantially unreasonable or that any reasonable adjudicator would be compe lled to conclude that Ms. Fall must be considered a credible witne ss. Nor would any reasonabl e adjudicator be compelled to conclude that corrobor ating 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- 8 - require us to reweigh the ev idence, which we do not do. See Yuk v. Ashcroft , 355 F.3d 1222, 1236 (10th Cir. 2004). 2 Moreover, we reject petitioners’ ar gument that the BIA erred in denying Ms. Fall’s claim of past pe rsecution. Our review confir ms that substantial evidence supports the agency’s determ ination on this point and th at no reasonable adjudicator would be compelled to c onclude otherwise. Future Persecution Petitioners next assert that the BIA er red in upholding the IJ’s determination that Ms. Fall failed to esta blish 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, th e 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 sh e was born, has not been subjected to the procedure” either. Admin. R. at 5 (citing Ritonga v. Holder , 633 F.3d 971, 97 7 (10th Cir. 2011) (noting that continued presence of fami ly in native country without any harm

2 We lack jurisdiction to consid er 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 c ontains 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 ge nerally does not asse rt jurisdiction over unexhausted claims).- 9 - “undercuts . . . asserted fear of persecution”)). Additionally, the BIA observed that the 2010 State Department Coun try Report states that “onl y 28% of girls in Senegal have undergone FGM,” that the prison sent ence for FGM is “6 months to 5 years,” and that “the government prosecut e[s] violators of the law.” Id. at 5-6. Thus, the BIA concluded that “respondent s 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 “commi tted by the government or forces the government is either unable or unwilli ng to control” (internal quotation marks omitted)). Our review confirms that substa ntial evidence suppor ts the agency’s determination that Ms. Fall failed to demonstrate a clear probability of future persecution and that no reasonable adjudicat or would be compelled to conclude otherwise. Again, petitioners’ contrary ar guments 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 fo r review is dismissed in part and denied in part. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge