NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0402n.06 No. 12-3541 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

AMAD OU M. SOW, P etitioner ,
v. ERIC H. HOL DER, JR., Att orney G eneral, Respondent. ) ) ) ) ) ) ) ) ) ) ON P ETIT ION F OR R EV IEW F R O M T H E U N I T E D S T A T E S B O A R D O F IMMIG RATION AP P EALS

BEFORE: NORR IS, COOK, and McK EAGU E, Circuit Judges. McK EAGU E, C ircuit Judge. Petitioner Amadou Sow was char g ed with remova bility by the Depa rtment of Homeland Securi t y . He applied for asy lum, withholding of remova l, and protec tion under the Convent i o n Against Torture

. An immigra tion judge found him not cre dible beca use his testimony was in consistent with his corr oborating documents. She there fore denied Sow’s applications and order ed him remove d. Sow appea led this order to the Boa rd of I mmigra tion Appea ls, which found no clea r er ro r i n t h e immigra tion judge ’s adver se cre dibilit y finding and dismiss ed Sow’s appea l. Be cause we find that substantial evidenc e supports the Boa rd’s decision, we de ny Sow’s petition for re view. I. BACKG ROUND Sow, a citizen of Mauritania (a c ountry

in West Afr ica) , was a dmitted to the United States

on a tourism visa on J une 24, 2001, and was authorized to rema in until Dec ember 24, 2001. He filedNo. 12-3541

Sow v. Holder

an application for asy lum on Dec ember 17, 2001. When he did not appea r on time for a schedule d asy lum interview (Sow say s a traff ic acc ident delay ed him), the Depa rtment of Homeland Security char g ed him with remova

bility and serve d him with a notice to appea r befor e an immigra tion judge

. Sow appea

red befor e an immigra tion judge on J uly 5, 2005. He conce ded remova bility , and the judge desig nated Mauritania as his country of remova l. Sow reque sted asy lum, withholding of

remova l, and relief under the Convention Ag ainst Torture

. His remova l hear ing was continued until J uly 28, 2010. At his hear ing, Sow testified to suffe ring past perse cution due to his ethnicity (he is black and

a member of the Fulani ethnic g roup) and political activities. He s ai d t h at in 1992 he joined a political org anization known as the Union of Democr atic For ces (UF D). The UFD opposed the reg ime of t he then-leade r of Mauritania, President Tay a. Sow serve d as a party secr etar y , hosting party meeting s at his house about once ever y three months. Following P re s ident Tay a’s elec tion in 1992, Sow participa ted in a UFD demonstration formed to protest the elec tion. Armed police (whi t e Moors) showed up, threw tear g as into the g ather ing, and arr ested Sow. Sow was detained at the police station for seventy -two hours. During that time he was kept in a windowless cell with se ven others. The police interrog ated him a t thr ee o’cloc k ever

y morning , try ing to make him explain why he was demonstrating ag ainst the elec tion and identify the UFD leade rs. The pol i ce p unched him on his rig ht hand, called him a “nig g er,” burned h is hand with candle s, injured his knees by making him cra wl, beat his back with a trunche on, and steppe d on his back. His par ty leade rs finally

procur ed his rele ase.

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Sow v. Holder After his rele ase, Sow continued to participa te with the UFD and host party meeting s at his home ever

y three months. After eac h meeting the police summoned him to the police station. They

never ag ain phy sically harme d him, but they would threa ten him, call him names and curse him, and detain him from eig ht to twelve hours. This pattern of meeting s, summons, and threa ts lasted from 1992 until S ow left Maur itania in 2001. Sow was asked whether any of his family members have had problems with the Mauritanian authorities since he left the c ountry

. He stated that afte r he le ft, the police ke pt going to his house and asking for his wher eabouts. I n Dec ember 2007, his wife’ s leg was broken during a police visit. 1 Although he had spoken to his wife while she was in the hospital, Sow was unable to desc ribe the details of the incide nt but speculated tha t his wife bec ame a ng ry , “may

be they had an arg ument or something,” and “ma

y be she w as pushed a

nd she g ot hurt.” Sow testified that he could not return to Mauritania beca use of problems with the police and the go vernme nt. I f he returne d, he would continue to participa te in the UFD and oppose the g overnme nt, a

nd the police would continue hara ssing him. Sow also stated that he was fired from his job while he was waiting for his flig ht to the United States. I n his amende d appl i ca t ion for asy lum, Sow int imated that political considerations prompted his firing. After his direc t examination, Sow was subjected to a vigor ous cross. He had s u b m i t t ed

sever al corr oborating documents to the immigra tion judge , including his UFD membership car d, an

Sow’s wife and nine children rema ined in Mauritania. Du ri n g d irec t examination, Sow 1 testified that his wife’ s hand was broken. Howeve r, during cross-e x amination he said he r leg was broken. L et t er s from Sow’s sister, wife, and mother identify his wife’ s leg as the aff licted appenda g e. - 3 -No. 12-3541

Sow v. Holder employ ment termination letter from the mining company he had worke d for in Mauritania, and a letter from the UFD descr ibing the perse cution he alleg edly suffe red. Cross-examination re veale d signific ant discrepa

ncies betwee n Sow’s testimony and the very documents he submitt ed to

corr oborate it. Sow was repea tedly asked a bout the date he first joined the UFD, and he repea tedly stated that he joined in Dec ember 1992. But this testimony conflicte d with Sow’s UFD membership car d, which said he joined the par ty on Aug ust 10, 1992. Sow’s testimony

also conflicte d with the letter fr om his employ er. Sow stated that he wa s fired due to his political activities. But the letter say s he was terminated for an unjustified absenc e from wor k. Most sig nificantly , Sow’s testimony conflicte d with the letter from the UFD , dated Aug ust 1, 2001. Sow stated that the UFD reg ional president wrote the letter on his behalf to aid Sow in his asy lum application, and the letter was delivere d to him in the United States by a y oung man from his

v i l l ag e sometime in 2001 or 2002. Sow said he believed that the letter confirme d his statem en t s about the 1992 arr est and subsequent hara ssment by the police. But the letter ref ere nces none of the events Sow testified to. I nstead, the letter say s that Sow was arr ested and tortured in April 1989, that his hou s e was burned in May 1989, that he was arr ested and interned in conce ntration camps betwee n Dec ember 1990 and Fe bruar y 1991, and that hara ssment by a rac ist superior forc ed him to quit his j ob. These statements in the letter direc tly conflict with Sow’s testimony that he had never been

arr ested befor e Dec ember 1992. Sow’s testimony ref ere n ce d n one of the events descr ibed in the - 4 -No. 12-3541

Sow v. Holder letter, and the letter corr oborate d none of Sow’s testimony

. When confr onted with the discrepa ncies betwee n the letter and his testimony , Sow admitted that the statements in the letter wer e not acc urate

. After hear ing Sow’s testimony and considering the docume n ts h e s u b mitted, the immigra tion judge rende red an oral decision deny ing Sow’s applications for asy lum, withholding of remova l, and protec tion under the Convention Ag ainst Torture , and order ing hi m removed to Mauritania. She found Sow inc redible, pointing to the inconsistencies betwee n his te stimony and his c orrobor ating documents, som e im plausibilit ies in his t es timony , and his evasive ness during t he hearing

. Since Sow was not cre dible, the im m i gra t i o n j u d g e found that he did not meet his burden of proof to

es tablish elig ibilit y for asy lum. Howeve r, she also noted that if she had found him cre d i b l e, s h e would have g rante d him as y l u m d u e t o his past perse cution and a well-founde d fea r of future perse cution. Sow appea led the immigra tion judge ’s decision to the Boa rd of I mmigra tion Appea ls, which issued a decision on April 9, 2012. The Boar d addre ssed onl y Sow’s applications for asy lum and wi t hholding of remova l since he did not meaning fully addre ss on appea l the immigra tion judge ’s denial of his application for protec tion under the Convention Ag ainst Torture

. I t found no clea r err or in the immigra tion judge ’s adver se cre dibilit y deter mina t i o n and focuse d in particula r on the inconsi s t en ci es betwee n Sow’s testimony and the letter from the UFD

. Ba sed on the adver se

cre dibilit y finding , the Boa rd ag ree d with the immigra tion judge that Sow h ad fa i l ed t o meet his burdens of proof for as y lum and withholding of remova l. Acc ording ly , the Boa rd dismiss ed his appea l. Sow tim ely

petitioned this Court for review of the B oard’ s decision.

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Sow v. Holder

II. ANALYSIS Applicants for asy

lum and withholding o f remova l bear the burden of proof to establish elig ibilit y for these forms of relief

. El-Moussa v. Holder , 569 F.3d 250, 257 (6th Cir. 2009). To 2 prove his elig ibilit y

for a sy lum, Sow needed to establish that he qualified as a ref ug ee, that is, tha t he is unable or unwilling to return to Mauritania beca use of past perse cution or a well-founde d fea r of future p er secution. 8 U.S.C. §§ 1101(a) (42)( A), 1158(b); 8 C.F.R. § 208.13(b); Gilaj v. Gonzales , 408 F.3d 275, 283 (Per Curiam). To prove his entitlement to withholding of re m oval, Sow ne eded to establish that he was pe rsec uted in the past or that it is more likely than not that he would be perse cuted upon his return to Mauritania. 8 U.S.C. § 1231(b)( 3); 8 C.F.R. § 1208.16(b); Vincent v . Holder , 632 F.3d 351, 354- 55 (6th Cir. 2011). Where, as here , the Boa

rd issues a separ ate decision instead of just summarily aff irming the immigra tion judge ’s decision, “we revie w the [Board’ s] decision as the final ag ency deter mination.” Khalil i v. Holder , 557 F.3d 429, 435 (6th Cir. 20 0 9 ). W e also revie w the immigra tion judge ’s decision “[to] the extent the [Boa rd] adopted the immigra

tion judg e’s rea soning.” Id. We a pply a substantial evidenc e standard of revie w to the fac tual finding s of both the Boa rd and the immigra tion judge , including their adver se cre dibilit y finding s. Id. ; Mapouya v. Gonzales , 487 F.3d 396, 406 (6th

W e l ac k jurisdiction to revie w the immigra tion judge ’s denial of Sow’s application for 2 protec tion under the Convention Ag ainst Torture

. Sow did not challeng e thi s d en i al in his brief befor e the Boa

rd of I mmigra tion Appea ls, and there fore fa i led to exhaust his administrative reme dies. See 8 U.S.C. § 1252(d)(1); Hasan v. Ashc roft , 397 F.3d 417, 419- 20 (6th Cir. 2005). - 6 -No. 12-3541

Sow v. Holder C i r. 2007). Under this standard, “the administrative finding s of fac t are conclusive unless any

rea sonable adjudicator would be compelled to conclude to the contra ry .” 8 U.S.C. § 1252(b)( 4)(B ). Since Sow filed his initial asy lum application befor e the eff ective date of the REAL I D Act of 2005, “an adver se cre dibilit y fi n d i n g must be based on issues that g o to the hear t of [S ow’s] claim.” Sylla v. I.N.S. , 388 F.3d 924, 926 (6th Cir. 2004); see also Abdurakhmanov v. Holder , 666 F.3d 978, 982 n.3 (6th Cir. 2012). “I f discrepa ncies cannot be viewed as attempts by the applicant to enhanc e his claims of persecution, t hey have no bear ing on cre dibilit y .” Sylla , 388 F.3d at 926 (quotations omit t ed ). Fur thermore , “[w]hi le an adver se cre dibilit y finding is aff orded substantial defe renc e, the f

inding must be supporte d by specific rea sons.” Id. We easily find that substantial e vidence supports the Boa rd’s adver se cre dibilit y finding in this case . The Boa

rd based its adver se cre dibilit y fin d i n g o n t he inconsistencies betwee n Sow’s testimony and the documents he submitt ed to corr oborate his testimony

. Sow’s testimony conflicte d signific antly with these documents. We might b e ab l e t o agree with Sow that the discrepa ncy betwee n the date he said he joi ned the UFD and the date wr itten on his party membership ca

rd do not g o to the hear

t of his claim. We might even be able to ag ree that the differ ence betwee n Sow’s statement that he was terminated from his employ ment due to political considera tions and the letter that said he was terminated for an unjustified abse n ce is rela tively insignifica nt. Howeve r, we cannot ag ree that the i nconsistencies betwee n Sow’s testimony about t he persecution h e s uffe red and the events c hronicled in the le tter fr om the UFD do not go to the he art of his c laim. Sow’s applications for asy lum and withholding of remova l are both based on the perse cution he suffe red in Mauritania, and the perse cutive events he descr ibed are completely differ ent from the - 7 -No. 12-3541

Sow v. Holder events ref ere nced in the letter. Sow had more than enoug h time to discover the inacc urac ies in the letter. He has never adequa tely explained why he submitt ed a letter as corr oborating evidenc e when that letter was completely inacc urate

. The only rea sonable explanation is that he did so to enhanc e his claim of per secution. Be cause we find that substantial evid e n c e supports the Boa rd’s finding of adver se cre dibilit y , we a g ree with the Board that Sow did not meet his burden to pr ove elig ibilit y for e ither asy

lum or withholding of r emoval. III. CONCLUSION We deny Sow’s petition for re view.

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