NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 09a0804n.06

No. 08-4077

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

IBRAHIMA THIAW,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

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ON PETITION FOR REVIEW OF A

FINAL ORDER OF THE BOARD OF

IMMIGRATION APPEALS

Before: SUHRHEINRICH, MCKEAGUE and KETHLEDGE, Circuit Judges.

KETHLEDGE, Circuit Judge. Ibrahima Thiaw petitions for review of the Board of

Immigration Appeals’ decision affirming the denial of his application for asylum and withholding

of removal. We dismiss his petition in part and deny it in part.

I.

Thiaw is a native and citizen of Mauritania, and a member of its Fulani ethnic group.

According to Thiaw, ethnic Moor soldiers attacked his village in 1989, capturing and beating the

men. Among other things, the soldiers burned Thiaw’s leg in hot ashes and killed his father. Thiaw

thereafter escaped to Senegal, where his mother and other relatives had been deported. He remained

there for 11 or 12 years.
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Thiaw claims to have first arrived in the United States in June or July 2001. He filed an

application for asylum and withholding of removal on December 28, 2001. He voluntarily left the

United States in November 2003 to visit his sick mother in Senegal. He returned from that trip on

December 28, 2003, using a passport and visa that belonged to his cousin but that had been altered

to bear Thiaw’s photograph.

An asylum officer interviewed Thiaw in May 2005. During the interview, Thiaw said he

arrived in the United States by boat, at Baltimore, Maryland in June 2001. He did not disclose his

2003 departure. The officer referred Thiaw’s application to the immigration court. The Department

of Homeland Security then issued a Notice to Appear charging him with being subject to removal.

Thiaw appeared before an immigration judge (IJ) and conceded removability, but requested asylum

and withholding of removal.

At his hearing, Thiaw testified for the first time that he had first entered the United States at

JFK Airport in New York City on July 4, 2001, using his cousin’s altered passport and visa. He

disclaimed his prior assertion of arriving at Baltimore as an error made by an English-speaking friend

who had assisted him with his asylum application. He attributed his failure to correct the error

earlier to his fear of appearing inconsistent to the asylum officer.

The IJ did not credit Thiaw’s testimony regarding his arrival, and noted that Thiaw produced

no other evidence—besides the admittedly false passport itself—of where and when he first entered

the United States. Consequently, the IJ concluded that Thiaw could not establish that he had filed

his asylum application within one year of his entry. The IJ therefore denied Thiaw’s asylum
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application as untimely. The IJ also found that Thiaw had abandoned his asylum application by

leaving the United States in 2003 and that asylum was not justified on the merits.

The IJ likewise denied Thiaw’s application for withholding of removal, which Thiaw

supported by testifying about events that occurred in 1989. Despite Thiaw’s failure to report those

events previously—which he also blamed on his friend’s deficient assistance—the IJ deemed

Thiaw’s account “generally credible” and found that he had “just barely” proven that he had suffered

past persecution in Mauritania. But the IJ found, based primarily on State Department reports, that

conditions in Mauritania had changed to the extent that Thiaw was not likely to be subjected to

future persecution there. (Order at 14-15, Apr. 18, 2007.) 

Thiaw appealed to the Board of Immigration Appeals, which affirmed and supplemented the

IJ’s decision. This petition for review followed.

II.

Because the Board adopted the IJ’s reasoning and added comments of its own, we review the

IJ’s decision directlywhile considering the Board’s comments. Ceraj v. Mukasey, 511 F.3d 583, 588

(6th Cir. 2007). We review legal questions de novo and factual findings for substantial evidence.

See id. Under the substantial-evidence standard, “findings of fact are conclusive ‘unless any

reasonable adjudicator would be compelled to conclude to the contrary.’” Yu v. Ashcroft, 364 F.3d

700, 702 (6th Cir. 2004) (quoting 8 U.S.C. § 1252(b)(4)(B)).

A.
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Thiaw challenges the IJ’s finding that he abandoned his asylum application by leaving the

United States in 2003. He also challenges one of the IJ’s alternative merits findings, namely, that

asylum was unnecessary because Thiaw had a safe harbor in Senegal.

Those challenges are moot, however, because they accompanied the IJ’s determination that

Thiaw’s asylum application was untimely. Thiaw has not contested that determination, and we

would not have jurisdiction over such a challenge in any event. See 8 U.S.C. § 1158(a)(3) (stripping

courts of jurisdiction to review timeliness determinations); Almuhtaseb v. Gonzales, 453 F.3d 743,

748 (6th Cir. 2006) (holding that exceptions to jurisdiction-stripping provision apply only to

“constitutional claims or matters of statutory construction”). That determination is dispositive of

Thiaw’s asylum application, so we dismiss his petition to the extent that it seeks review of the IJ’s

denial of asylum.

B.

Thiaw also seeks review of the IJ’s denial of his application for withholding of removal.

Eligibility for withholding of removal is subject to a burden-shifting analysis. First, an applicant

must show that his life or freedom would be threatened in the country of removal based on certain

grounds, including race or nationality. If the applicant proves past persecution on such a ground, the

IJ must presume a threat of future persecution. The government may rebut the presumption by

showing a fundamental change in circumstances that eliminates the threat. Alternatively, regardless

of past persecution, an applicant may simply attempt to show that he “more likely than not” would

suffer future persecution. 8 C.F.R § 1208.16(b).
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Here, the IJ found that Thiaw had proven past persecution, but also found—primarily relying

on State Department reports—that circumstances in Mauritania had changed. Specifically, although

the IJ recognized that “some ethnic and racial discrimination” continues in Mauritania, the IJ found,

based on the reports, that “current country conditions do not include widespread persecution[,]” that

“there are now free and generally democratic elections underway in that country[,]” and that many

other late-1980s refugees had returned to Mauritania. Consequently, the IJ found that Thiaw, more

likely than not, would not suffer future persecution in Mauritania.

Thiaw argues the reports do not rebut the presumption of persecution here, citing the Ninth

Circuit’s statement that “a State Department report on country conditions, standing alone, is not

sufficient to rebut the presumption of future persecution when a petitioner has established past

persecution.” Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir. 2002). That statement was

dicta, however, because the petitioner there had not established past persecution. Moreover,

although such reports are not perfect sources of information, our court has said they “are generally

the best source of information on conditions in foreign nations.” Mullai v. Ashcroft, 385 F.3d 635,

639 (6th Cir. 2004).

Whether a particular report is sufficient to rebut a presumption of persecution depends on the

report and the facts of the case. Our court has repeatedly upheld IJ determinations based upon State

Department reports concerning Mauritania. See, e.g., Koita v. Mukasey, 314 F. App’x 839, 844-45

(6th Cir. 2009); Sall v. Gonzales, 239 F. App’x 975, 980-81 (6th Cir. 2007). The question, therefore,

is whether Thiaw has shown that the report here was not supportive of the IJ’s finding.
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Thiaw has not made that showing. Instead, he offers only the conclusory assertion that

“conditions in Mauritania have not significantly improved[.]” Pet. Br. at 14. That assertion affords

us no basis to set aside the IJ’s finding as to the unlikelihood of future persecution.

Nor did the IJ err, as Thiaw contends, by applying the more-likely-than-not standard instead

of the more lenient well-founded-fear standard. Thiaw’s reliance on INS v. Cardoza-Fonseca, 480

U.S. 421 (1987), an asylum case, is misplaced. Cardoza-Fonseca itself expressly recognized that

the well-founded-fearstandard does not apply in the withholding-of-removal context. See id. at 423

(citing INS v. Stevic, 467 U.S. 407, 428 (1984)); see also 8 C.F.R. § 1208.16(b)(1)(iii) (future

persecution must be “more likely than not”).

Substantial evidence supports the IJ’s findings. We therefore deny Thiaw’s petition as to his

claim for withholding of removal.

C.

Finally, Thiaw urges us to remand this case for further proceedings in light of new

information, not part of the administrative record, regarding a coup in Mauritania. Thiaw contends

that this information undermines the IJ’s withholding-of-removal findings. We are limited, however,

to the record before us. See 8 U.S.C. § 1252(b)(4)(A) (“[T]he court of appeals shall decide the

petition only on the administrative record”). Thiaw’s proper recourse is to file a motion to reopen

his removal proceedings in light of this information. We therefore deny his request for remand.

For the foregoing reasons, we dismiss Thiaw’s petition in part and deny it in part.