NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION File Na me: 08a0025n.06 Filed: January

9, 2008 No. 06-4381
UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT HAYMOUT SAMBA MBODJ, P etitioner , v. MICHA E L B . MU KA S E Y, At to rn ey G eneral of th e Uni te d St at e s, Respondent. / ON AP PEAL F RO M THE B OA RD OF IM M IG RA TIO N A P P EA LS

BEF OR E: KEN NE DY , M AR TIN , a nd C LA Y, Ci r c uitJudg e s. CLAY, Circ uit Jud ge. Petitioner Hay mout Samba Mbodj s ee k s re v i ew of the B oard of I mmi g ratio n App e a ls’ Se pte mbe r 2 6, 20 06 de c isi on up ho ldi ng the imm ig ra tio n ju dg e ’s de nia l of

his application for

asylum pursuant to 8 U.S.C. § 1158(a) , withholding of r emoval pursua nt to § 241(b)( 3) of the Immigration and Nationality Act (“ I NA”) , 8 U.S.C. § 1231(b)(3), a nd withholding of re moval under the Convention Ag ainst Torture. F or the re aso n s s t ated below, we DENY the petition for re view.

BA CKGROUNDNo. 06-4381

2 Mbodj is a native Mauritania n whose a sy lum claim is based on his fear t h at he will be tor tur e d a nd po ssi bly kil le d in Ma

ur ita nia du e to his F ula

ni ethn ic ity
. He c la ims that he a rr ive d in the United States on Jul y 9, 2002 using a

fra udulent passport. On Nove mber 2 5 , 2 0 0 2 , Mbodj applied for

as y l u m an d withholding of r emoval pursua nt to § 241(b)(3) of

the I NA, 8 U.S.C. § 1231(b)( 3), and the Convention Ag ainst Torture. Mbodj’s case was refe rre d to the I mmigration Court and hear d by an immigr ation judge on April 5, 2005. At the hea ring , Mbodj testified that he wa s arr ested by Mauritanian soldier s on J une 15, 1989 and wa s kept i n jail until J uly 17, 1989. He claimed t hat the ar rest occ urre d as a r esult of his cultural ac tiviti es re lated to the F ulani ethnic g roup such as teac hing the Pular lang uag e. Mbodj testified that upon his arr est police que stioned h im as to his invol vement with var ious polit ical movements. The soldiers subse quently deporte d him to Seneg al. Around this time the Mauritania n g overnme nt expelled thousands of ethnic Fulanis, claiming that they wer e ac tually

Seneg alese and not Mauritanian. Mbodj further te stified reg arding his life in Sene g al. Acc ording to his testim ony , he joined his wife and children (who had been deported at the time of his arr est) at a ref ug ee c amp in Thilogne , Seneg al. He the n beg an wor king in Da

kar, Sene g al and r emained the re until 2002. Mbodj claimed that th e re a so n f

or his de pa rt ur e fr om S e ne g a l w a s th e Se ne g a le se g ov e rn me nt’ s e ff or t to re patr ia te native Maur itanians, many of whom had bee n deporte d at the time he wa s expelled from Mauritania
. Mb od j te sti fi e d th a t he wa s a fr a id t o r e tur n to Ma ur ita nia be c a us e pe op le wh o h a d tr ie d to re tur n in the e arl y 19 90 s h a d b e e n p e rs e c ute d u po n th e ir r e tur

n a nd be c a us e the g ov e rn me nt c on tin ue d toNo. 06-4381

3 pe rs e c ute jou

rn a lis ts a nd po lit ic a l a c tiv ist s. Mb od j c la ime d th a t if

he re tur ne d h e wo uld

a sse rt his rig hts, and as a r esult he could be arr ested, jailed or killed. At the immigration hearing , the g overnme nt attorn ey as k ed Mbodj about his arr ival in the United States. Mbodj testified that he used a passport with his picture but someone e lse’s name on it. Mbodj t estified to the name that was on the pa ssport with so m e unce rtainty and couldn’ t
reme mber the c ountry

of the pa ssport. Mbodj claimed that a g uard took the passport, I -94, and plane tic ke t f ro m hi m a t th e a ir

po rt
. Whe n q ue sti on e d a

bo ut t he re st o f hi s fam ily , M bo dj s ta te d th a t hi s w if e and tw o o f h is children rema ined in Sene g al. The othe r three children w ere in school in Fra nce. H e testified that the childre n in Fra

nce ha d Se n ega l ese passports but that none of the f amily members we re Seneg alese citizens. Mbodj ex plained his children’ s passports by sug g esting that the passports we re g ive n to the m a s a

fa vo r f ro m th e Se ne g a le se g ov e rn me nt s inc e the y we re g oo d e no ug h stu de nts to g e t a dmi tte d to F re nc h s c ho ols
. Th e imm ig ratio n ju dg e in a n o ra l de c isi on

d e n i e d Mb od j a sylum and wi thh old ingof

re mov a l. The judge based his dec ision on findings that Mbodj could re turn to Seneg al or Maur itania and that Mbodj had not proven that his asylum application was filed within a y ear of his entry

into the United States. Mbodj filed a timely appea l to the Board of I mmigration Appea ls (“B I A”)
. On appe al to the B I A, Mb od

j r a ise d s ub sta

nti a lly the same c la ims that he ra ise s in his pe tit ion

fo r re vie w to this Court
. He cl aimed that the immigr ation judge err ed in finding that Mbodj could ree nter Maur itania, that Mbodj was firmly

rese ttled, and that Mbodj’s asylum application was untimely
.No. 06-4381

4 The BIA dismiss ed his a

ppeal. I n its opinion, the BIA ac knowledg ed that the immigr ation judge had not made a

n expli cit cre dibilit y

deter mination but stated that even if Mbodj was dee med
cre dible, he did not meet “his burden of establishing eligibility for relief.” The B I A found no c lear
e rr or re g ard ingthe imm ig ratio n ju dg e ’s de te rm inatio n th a t Mbodj was elig ibl e to r e tur n to Ma ur ita nia , a nd the B I A f

ound it unn e c e ssa

ry to r e a c h th e iss ue of

fi rm re se ttl e me nt i n Se ne g a l.

A N A LY S IS I. T h e g o v e r

n me n t a s s e rts th a t w e h a v e n o jurisdiction o v e r M b o d j’ s a s y lum c la im
. We g ener ally lack jurisdiction to revie w the B I A’s d eter mination that an asylum application is tim ebarr ed. 8 U.S.C. § 1158(a) (3). De spite this st atutory restric tion, purs u an t t o t h e R ea l I D Act, we may revie w “c onstitut ional claims or questions of law ” ar ising in immigration decisions that ar e otherwise unr eviewa

bl e. 8 U.S .C. § 1252(a)( 2)(D)
. Almuhtaseb v. Gonzale s , 453 F.3d 743, 747 n.1 (6th Cir. 2006). W e have held that § 1158(a )(3) bars a ppellate “ revie w of a sy lum applications denied f or untimeliness only

when the a

ppeal se eks re view of discr etionary or fa ctual questions, but not when the a

ppeal se eks re view of c onstitut ional claims or m atters of statutory construction.” Id
. a t 74 8; Shkulaku-Purballori v. Mukasey , No. 06-4062, slip op. at 2-3 (6th Cir. De c. 19, 2007). A s
a re su l t , w e m u s t m a k e “ a p a rt i c u l a r i z e d i n qu i r y i n t o t h e n a tu r e o f a p e t i t i o n e r ’ s c l a i m . . . to d e te r mi n e w h e th e r [w e h a v e ] ju r is d ic ti o n to r e v ie w a d e n ia l o f a n a s y lum a p p li c a ti o n b a sed on timeliness.” Almuhtaseb , 453 F

. 3d at 748.No. 06-4381

5 I n thi s c a se , w e have jur isd ic tio n to re vie w the de nia l of Mb od j’ s a sylum

a pp lic a tio n b e c a

us e Mbodj raises a c onstitut ional claim reg arding an alleg ed violation of his r ight to due proce ss. Mbodj
c la ims the imm ig ratio n ju dg e imp os e d upo n him an ins ur mou nta ble burd e n of p ro of

by de e min g his testimony ins u ff i ci en t to satisfy

the clea r and c onvincing evidenc e standa rd for proving the t i m el i n es s o f h i s as y l u m ap p l i ca t i o n . “[ A] l l ega t i o n s o f d u e p ro ce s s v i o l at i o n s i n re m o v al h ea ri n gs
are revie wed de novo .” Hassan v. Gonzales , 403 F.3d 429, 436 ( 6th Cir. 2005). Mbodj a rg ues that the immigration judg e misconstrued the law by requiring evidenc e beyond Mbodj’s testimony

to corrobor at e h i s claimed date of e ntry . He c laims that this requirement of
corr oborating evid en ce cr ea ted an insurmountable bur den for his asy lum claim and re sulted in a denial of d u e p ro ce s s . The g overnme nt counters that since there was a rea soned basis for

the immigration judge’ s determination that Mbodj’s asy lum application was untimely , there was no due proce ss violation. An asylum seeker

has a F ifth Amendment rig ht to due proce ss in remova l hear ings. Hassan v. Gonzales , 4 03 F .3 d at 43 6. “ A v iol a tio n o f d ue pr oc e ss o c c ur s w he n the p roce edi ng wa s so fundame ntally unfair that the alien was pre vented f rom rea sonably

prese nting his ca se.” Id. (quoting Lad ha v . I NS , 215 F.3d 889, 904 ( 9th Cir. 2000)). Thus, Mbodj must show that the imm igr ation judge ’s cor

roboration requireme nt denied him a “f ull and fair he aring .” Id. Mbodj had the burde n to prove “by clea r and convincing evidenc e” that his application for asylum was filed within a y ear of his en t ry i n t he United States. 8 U.S.C. § 1158(a) (2)( B) . The immigration judge f

ound Mbodj’s application untimely beca use Mbodj ha d not proven his date of entry by clea r and convincing evidenc e. I n making this determination, the judg e stated: “ [o] ther thanNo. 06-4381

6 his own testimony

reg ardin g h i s d at e o f ar rival, we have no e vidence whatsoeve r.” ( J .A. 23.) Howeve r, the immigr ation judge made no spe cific f indings re g ardingthe cr edi b i lity of Mbodj’s te stimo ny abo ut the d a te of his a rr iva l in

the Un ite d St a te s. On

a pp e a l, t he B I A t oo k n ote of

thi s omission but found t hat even if Mbodj’s testimony was credible, he had not met his burden to prove by c le ar a nd c on vin c inge vid e nc e that hi s a sylum a pp lic a ti on was ti me ly . M bo dj c la ims that th is de c isi on imp ro pe rl y

imp os e d u

po n h im the burd e n of pr od uc ingc or ro bo ratin g e vid e nc e re g a rd le ss of his cre dibilit y . Howeve r, Mbodj’s ar g ument is forec losed by this Court’s prece dent. Th e re g ulatio ns g ov e rn inga sylum he a ri ng s st a te that “ [t]he te sti mony of the a pp lic a nt, if
cre dible, may

be suff icient to sustain the burden of proof without c orrobor ation.” 8 C.F.R. §§ 208.13 (a) , 208.16(b). The BIA has clar ified that “whe re a n alien’s testimony

is the only

evidenc e ava ilable, it can suff

ice whe re the testimony

is believable, c onsistent, and sufficie n t l y detailed to provide a plausible and cohere nt acc ount of t he basis of t he alien’ s alleg ed fe ar.” In re M -D- , 21 I
. & N. Dec
. 1180, 1182 (B I A 1998). Howeve r, the B I A also re quires cor roborating e vidence or an e x planation fo r i ts a bs e nc e “ wh e re it i s r e a so na ble to e xpe c t c or

ro bo ratin g e vid e nc e for cert a in a lle g e d f a c ts perta ining to the spe cifics of an applica

nt’s claim.” In re S-

M-J

- , 2 1 I. & N
. D e c . 7 2 2 , 7 2 5 ( B IA 1997). “The absenc e of such corr oborating evidenc e can lead to a finding that an applica nt has failed to meet her b u rden of proof.” Id. a t 72 5- 26 . A lth ou g h th e Ni nth Cir c uit ha s r e je c te d th is
corr oboration rule w hen an asy lum applicant has been determined to be cre dible, Ladha , 215 F.3d at 901, we have expressly approve d the BIA’s corr oboration rule re g ardle ss of the cr edibility of the asylum applicant. Do ro sh v . A sh c ro ft , 398 F.3d 379, 382 ( 6th Cir. 2004).No. 06-4381

7 De sp ite the pe rs ua siv e ne ss o f M bo dj’ s a rgume nt t hat te sti mony

that is deem e d c re dib le should be sufficie nt to satisfy his evidentiary

burden, Six th Circuit prece dent clear ly states the contra ry . Thus, Mbodj’s due proc ess claim is without merit since the decisions of the B I A and the immigration judge did not deny Mbodj a “full and f

air he aring .” As a result, the immigration judge’ s de nia l of Mb od j’ s a sylum

a pp li catio n d

ue to M bo dj’ s f

a ilure to p ro ve the tim e lin e ss o f h is application by

clea r and c onvincing evidenc e must stand. II. We w ill no t a dd

re ss t he imm ig ratio n judg e ’s de nia l of wi thh old ingof

re mov a l pu

rs ua nt t o the I NA and the Convention Ag ainst Torture sinc e Mbodj wa i v es these a rg uments in his brief by only discussing his asy

lum claims, Shkabari v. Gonzales , 427 F.3d 324, 327 n.1 (6th Cir. 2005), and by stating that the untimeliness i s s u e i s d i s p o sitive of all his claims. (Pet. Reply Br . at 4.) Pe tit ion e r’ s st a te me nt c on sti tut e s an im pli c it w a ive r of

his re ma ini ngc la ims sin c e the re is n o ti me bar f or withholding of

remova l claims. See 8 C.F.R. § 208.16(c) (2).

CONCL USI ON For the fore g oing r easons we DENY Mb od j’ s p e tit ion

fo r r e vie w o f the B I A’ s den ia l of h is
a pp lic a tio n f

or a sylum a nd wi thh old ingof

re mov a l.