Th e Ho no ra ble Ric ha rd Mil l s , Un i t e d

S t a t e s D i s t ri c t Judg e fo r t

he Ce ntr a l D ist

ri c t of I lli no is, * sitti ng by desig nation. NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION F ile Nam e: 07a0736n.06 F iled: October 16, 2007 No. 06-3952 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT
M OHA M M ED SAL L , Pe tit ion e r-

Ap pe lla nt,
v. ALBERTO R. G ONZA LES , Attor ney Ge neral, Respondent-

Appellee

. ) ) ) ) ) ) ) ) ON PETI TI ON F OR REVI EW FROM T H E B O A RD OF IM M IG RA T IO N A P P E A LS

BEF OR E: CO LE a nd C OOK , C ir c uitJudg e s; M ILLS , District Judge * R. GUY COL E, JR., Circuit Jud ge. Petitioner-Appellant Moha med Sall seeks re view of a B oard of

I mmigration Appeals (“ BIA”) order aff i rm i n g an I mmigration J udg e’s ( “I J ”) de nial of his claims for asy

lum and withholding of remova l. The I J conclude d that Sall was not cre dible and the re fo re de nie d h is c la ims . A lte rn a tiv e ly , f or the de nia l of

a sylum , th e I J fo un d tha t Sa ll f a ile d to sh owthat he a

pp lie d for a sylum wi thi n one y e ar of his e ntr y int o the Un ite d Stat e s a nd de nie d h is
a pp lic a tio n o n time lin e ss g ro un ds
. B e c a us e the re is suf

fi c ie nt e vid e nc e to s up po rt the I J’s a dv e rs e
cre dibilit y

finding , we DENY the petition for re view.No. 06-3952

Sall v. Gonzales

- 2 - I. Bac kgr ound A. F acts Sall claims to be a native citizen of Mauritania, a larg e country in Northwest Af

rica border ing the At lanti c Oc e an, and

a me mbe r o f t

he c ountr y ’s min or ity Wolo f t

ri be . A c c or din g to S a ll, his family owned a far m in Mauritania and he belong ed to a f arme r’s a ssociation as we ll as the United Democr atic F orce s - New Era (“U.F .D.”) , a political par ty . Sall testified that in April 2003 his father
rec eived a

letter fr om the Mauritanian g overnme nt stating that the g overnme nt was conf iscating the family ’s fa

rm, and that he and his fathe r we re later ar re sted while par ticipating in a

protest of the confiscation. He claims that duringthe protest he was shot in the ey e by the National guard, a

rre sted, and jailed f

or three wee ks. Sall claims that upon his relea se he w as plac ed on probation and order ed to pay a fine . Sall states that he fled to Sene g al on J uly 13, 2003, and then to the United States on the fo llo wi ng da

y . H e state s th a t hi s f

a the r w a s r e le a se d b ut r e arr e ste d a nd su bs e qu e ntl y

be a te n to death by the g uards in prison on Apr il 22, 2004. B. Pr ocedural History Sall filed his asy lum application on Dec ember 5, 2003. The I J denied Sall’s applications for asylum, withholdi ng of re moval under the I mmigration and Nationality Act (“I NA”) , and withholding of r emoval under the United Nations Convention Ag ainst Torture (“CAT” ) on May 2, 2005. He concluded that Sall was not cre dible and ther efor e not entitled to relief . I n addition, the I J found that Sall failed to show he filed his petition for re lief within one y ear of arrival i n the United States and that he f

ailed to show that he face d torture in Mauritania. T he B I A adopted a nd aff irmed the I J ’s dec ision on J une 5, 2006.No. 06-3952

Sall v. Gonzales

- 3 - On a pp e a l, S a ll c on te nd s th a t th e B I A a nd I J er re d in the ir c re dib ili ty

de te rm inatio n. Sa ll a lso claims that the I J err ed as a matter of law in findingthat he fa iled to make the r equisite showing of timeliness. The Gover

nment contends that the I J ’s cr edibility finding was supporte d

b y th e e vidence , and that this Court lacks jurisdiction to review the timeliness decision. II. Discussion A. Jurisdiction to Review the Asylum A ppl ication Beca u s e t h e BIA adopted the I J ’s dec ision, we revie w the I J ’s dec ision directly
. Y u v. As hc ro ft , 364 F.3d 700, 702 (6th Cir. 2004) . I n denying Sall’s a pplication for a sy lum, the I J stated two independe nt rea sons for deny ing the petition. The fir st was that he f ound Sall to be not credible, which will be addr essed be low. I n addition, the I J found that Sall had not shown that his p et i tion
was timely , meaning that Sall f ailed to pr ovide clea

r and convincing evidenc e that hi s asylum application wa s filed withi n o ne y ear of his arr ival in the United States, as re quired by 8 U.S.C. § 1158(a) (2)( B)
. I n this case, the I J noted that there was no entry in the Non-Immigra nt Information Sy stem (“NI I S” ) f or a pe rs on e nte ri ngthe Un ite d St a te s in the mon th of July 20 03 wi th t he name , o r a

name simil ar to, the one that Sall provided. Sall produce d a docume nt purportedly from the Ma

uritanian g overnme nt cer

tify ing that Sall was relea sed fr om a jail sentenc e on May 2, 2003, which if c redited
wo uld e sta bli shtha t he wa s still in Ma

ur ita nia a t th at ti me and

ha d n ot y e t e nte re d th e Un ite d St a te s. The I J found Sall’s documents “to be questionable,” n o ting that “ documents fr om Mauritania a re
rea dily counter feited and [t hat he] see[s] counter feit Mauritania documents all the time.” He stated that Sall’s Mauritanian identification was clearly a counterfe it document, but that he would not makeNo. 06-3952

Sall v. Gonzales

- 4 - a finding that it was false without forensic te sting, whic h he dec lined to do beca use it would have taken at least eig hteen months. Th e Go ve rnme nt c ite s Cas te lla no -C ha c on v . I NS , 341 F.3d 533, 542- 44 (6th Cir. 2003) as support for its proposition that this C ourt lacks jurisdiction to revie w a de nial of asy lum based on a finding that a petiti on was unti mely
. Howeve r, this Court in Almuhtaseb v. Gonzale z , 453 F.3d 743 (6th Cir. 2006), modified “t h e h o lding of Castellano-Chacon to bar our r eview of asylum applications denie d for untim eliness onl y when the a

ppeal se eks re view of discr etionary or fa ctual questions, but not wh en t h e ap peal se eks re view of c onstitut ional claims or matter s of statutory construction.” Id. at 748. 8 U.S.C. § 1158(a)(2) (B ) re qu i re s an asy lum applicant to demonstrate by clea r and convincingevidenc e that his application was filed within a y ear of ar rival i n the United States. Due p ro ce s s re qu i re s t h at an al i en i n a d ep o rt at i o np ro ce ed i n g b e a ff o rd eda f u l l an d fa i r h ea ri n g, al t h o u gh the I J is entitled to broad discre tion in conducting that hear ing. Castellano-Chacon , 341 F.3d at 552- 53
. Sa ll ar g u e s th a t t

h e I J v io late d

h is d u e p r o c e s s r ig h ts w h e nth e I J d e c li n e d to s u b mi t Sall’s documents to fore nsic testing, thus de priving S al l of that method of pr oving his a rrival date. Howeve r, Sall could have provided other corr oborating evidenc e supporting h i s ar ri v al date, including pla

ne tickets, rec eipts, a rec ord of entry into the United States, or other evidenc e that he was sti ll in Mauritania or Seneg al during t he ti me period he claimed. As the I J noted i n his order, the on ly e vid e nc e tha

t Sa ll p ro vid e d to su

pp or t th e Ma ur ita nia n g ov e rnme nt d oc ume nts wa s h is testimony , which prove d to include fa lse information about the na me provided upon e ntry , and the testimony of his roommate whic h did not provide corr oboration of his date of ar rival.No. 06-3952

Sall v. Gonzales

- 5 - Be cause Sall was not deprived of an opportunity

to provide evide nce that his application was tim e ly , it wa s n ot a du e pr oc e ss vio la tio n fo r the I J to de c lin e to s ub mit the do c ume nts to f

or e ns ic te sti ngfo r a

uth e nti c a tio n. To the e xten t tha t Sall c omp la ins of the fa c tua l f ind ing s o f t

he I J, tho se claims are not review able by this court. Almuhtaseb , 453 F.3d at 748. B. Withold ing of

Rem oval and Relief

und er C AT This Court has jurisdiction over Sall’s appea l of the B I A’s deni al of his reque sts for withholding of r emoval and r elief unde r CAT. Castellano-Chacon, 341 F.3d at 544-52 (r eviewing withholding of r emoval and CAT r equests despite la ck of jurisdiction to revie w timeliness of asy lum applicati o n ). As ab o ve, bec ause the BIA adopted the I J ’s dec ision, we revie w the I J ’s dec ision direc tly
. Yu , 364 F.3d at 702. An alien seeking withholding of remova l must demonstrate “ that there is a clea r proba bility that he will b e s u b

j ec t t o p erse cution if forc ed to re turn to the country of
remova l.” Sin gh v . A sh c ro ft , 3 9 8 F. 3 d

3 9 6 , 4 0 1 (6 th C i r. 2 0 0 5 ) ( qu o t i n g Pi lic a v. As hc ro ft , 388 F.3d 94 1, 95 1 ( 6th

Cir . 2 00 4) ). To be e lig ibl e fo r CA T re lie f, an a lie n mu st s ho w that it is “ mor e lik e ly tha n n ot t hat he or sh e wo uld be tor tur e d if re mov e d to the pr op os e d c ountr y of re mov a l.” 8 C. F .R. § 208.16(c) (2). The I J ’s deter

m i n ati on must be upheld unless “manife stly contra ry to the law,” a

nd any “administra

ti v e f in d in g s o f f a c t a r e c o n c lu s ive unless any

rea sonable a djudicator would be compelled to c on c lud e to t

he c on tr ary .” 8 U .S. C. § 12 52 (b )( 4) . In o rd e r t o r e ve rs e a fa c tua l de te rm inatio n, thi s Court “must find that the evidenc e not only supports a contra

ry conclusion, but indeed c om pe ls it.” Kla witt e r v . I

NS , 970 F.2d 149, 152 ( 6th Cir. 1992).No. 06-3952

Sall v. Gonzales

The REAL

I D Act of 2005, Pub. L . 109-13, 119 Stat. 231, chang ed the standard g overning 1 cre dibilit y

deter minations, stating that those dete r mi n a ti o ns may be made “without reg ard to whe ther an inconsistency , inacc urac y , or falsehood g oes t o the heart of the a pplicant’s cla im.” Am ir , 467 F.3d a t 92 5 n .4 (q

uo tin g 8 U.S. C. § 1158 (b )( 1) (B )( iii ))
. Th is pr ov isi on , how e ve r, a pp lie s only

to t ho se aliens who a

pplied for a sylum, withholdi ng of re moval, or other r elief on or afte r May

11, 2005, the eff ective date of this provision of the Ac t. Id. (c iti ng Pub
. L
. 10 9- 13 , div . B ., § 1 01 (h )( 2) , 1 19 Stat. 231 at 305). B eca

use Sall applied for

relief in September 2003, this provision of the REALI D Act do e s n ot a

pp ly to t his Court ’s re vie w o f h is c la ims
. - 6 - Her e, the I J denied the withholding of remova l and relief under CAT for the same re ason he found that Sall would not be entitled to a sy lum e ven if his a pplication had bee n timely . He f ound that Sa ll w a s n o t c r e d ib le , an d th a t h e th e r e f o r e h a d n o t e s ta

b li s h e d a w e ll

- f

ounded fe ar of perse cution. See 8 U.S.C. § 1158(b)(1)( B) (iii) (listing fa ctors that ca n be conside red in rea ching
cre dibilit y d et er minations for asylum applications). Credibility deter minations are c onsidered finding s of fa ct and a

re thus subject to the defe rential standard of revie w set for th in § 1252(b)(4). Yu , 364 F.3d at 702. Although a n adver se cr edibility

finding is affor ded substantial def ere nce, the finding must be supported by specific rea sons and an “adve rse credibility finding must be based on issues that g o to the hear

t of the applica

nt’s claim.” Amir v. Gonzales , 467 F.3d 921, 925 ( 6th Cir. 2 0 0 6 ) ( qu o t i n g Sy lla v . I

NS , 388 F.3d 924, 926 ( 6th Cir. 2004)). 1 The I J has stated specific rea sons to support his f inding that Sall’s testimony is not credible. He n o t es that while Sall claimed to be a fa rmer in Ma

uritania, Sall did not know the Mauritania n words for the diffe rent ty

pes of land, or

which ty pe of land his far

m was. The I J stated that it was “not possible that a fa

rmer in Ma

uritania would not be a

war e of that unless [ Sall] either .
. . was not
a fa rm e r, or po ssi bly that he wa s not fro m Mau rita nia .” Th e I J re po rt e d th a t w hil e Sa ll c la ims to have be en a local leade r of the U .F.D. pa rty , Sall init ially

did not know the name of the par ty leade r,No. 06-3952

Sall v. Gonzales

- 7 - one of the most im portant political fig ures in Maur itania, or that the pa rty had bee n banned by

the g o v e r n me n t t h r e e y e ar s p r io r

to Sa ll ’ s a ll e g e d d e p artu

r e f r o m M a u r it an ia
. T h e I J e xp la in e d th a t “ [i ]t would be pre tty

hard f or a Party member to not know t hat t he Party was ba nned, since what wa s leg al had suddenly

become illega l, and he be ca m e s ub j ec t to being arr ested if he eng ag ed in U.F .D. act iv it ies .” I n a dd iti on , th e I J det a ile d s ke pti c ism re g ard ingSa ll’ s o mis sio n o f i mpo rt ant e ve nts during ear ly

conver sations w ith a sy lum of fice rs, including information about the de ath of his sister, g randpa rents, and two uncles. The I J pointed out a discre pancy reg ardingSall’s testimony that he was shot in the ey e with a r ubber or plastic bullet, noting that the medical re port stated that Sall had two piece s of metal in or ne ar his ey e, rather than pla stic. He a lso recor ded that Sal failed to mention that he had be en shot or blinded on his asylum application or to the asylum officer , all of which le d the I J “to believe that [S all] m ay have be en blinded in an e ntirely differ ent time.” The I J listed r easons for finding Sall’s suppor t documents to be fa lse. He e x plained that the two letters fr om Sall’s mother appea red to be intended for Court use; that the first did “not re ad like
on e fr om a

mot he r t o h e r so n te lli ng him that his fa the r wa s kil le d” and that the se c on d le tte r s imp ly “re states his asylum claim by listi ng all the family

members that ha d problems.” The I J reiter ated hi s bel ie f t

hat th e do c ume nts purp or te dly fr om t he Ma ur ita nia n g ov e rnme nt w e re of

qu e sti on a

ble
a u t h e n t i c i t y. On appe al, Sall asks this court to reve rse the c redibility deter m ination. He ar g ues that the inconsistencies do not g o to the hear t o f t he application and that the omission of details could be explained by

cultural diff

ere nces a nd translation di fficulties. Sall argues t hat although t he U.F .D. was ba nned in 2000, he only lear ned of the banning in 2003. H e states that whe ther the bullet wa sNo. 06-3952

Sall v. Gonzales

- 8 - m e t a l o r r u b b e r i s i m m a t e r i a l , b u t t h a t h e w a s s h o t an d i n j u r e d d u e t o h i s p o l i t i c a l a c t i v i t i e s . F i n a l l y, Sall ex plains that there is no inconsistency betwee n his asylum application, his interview with the asylum officer , and his testimony
. Un de r t he su bs tantial e vid e nc e sta

nd ard , f ind ing s o f f

a c t, i nc lud ingc re dib ili ty deter minations, a

re “conc lusive unless any rea sonable adjudicator would be compe lled to conclude to the contra

ry .” Pat el

v. Go n z ales , 470 F.3d 216, 219 ( 6th Cir. 2006) (quoting 8 U .S.C. § 1252(b)( 4 )( B) ). The I J ’s deter mination meets this st andar d, as he ha s detailed his re asons and at least some of them g o to the hear t of Sall’s application, including his lack of knowle dg e of f arming terms an d d et ails of the U.F .D. par ty . There is not sufficient evidenc e to compel a finding of
c re dib ili ty , wh ic h is the sta nd ard fo r re ve rs a l by

thi s Co ur t. 8 U. S.C. § 1 25 2( b) (4 )( B ); se e als o IN S v. Elias-Zacarias , 502 U.S. 478, 481 n.1 (1992). Be caus e th e I J’ s f

in d in g s w e r e s u f

f ic ie n t t o r e

je c t S a ll ’ s p e ti ti o nu n d e r th e le s s s tr inge nt standards f

or petition of asylum, the I J ’s finding s wer e also sufficie nt to reje ct Sall’s petition based
on the m ore ex actingstandards use d for withholding of re moval and CAT. Hamida v. Gonzale s , 478 F .3 d 7 34 , 7 41 -4 2 ( 6th Cir . 200 7) (s ta tin g tha t “ an a pp lic ant w ho fa ils to m e e t th e statut or y e lig ibi lity require ments for asy lum must nece ssarily fail t o meet the require ments for withholding of re moval,”
and re a c hin g the same c on c lus ion wi th re sp e c t to re lie f u nd e r C AT ); Mi k

ha ile v itc h v . I

NS , 146 F.3d 384, 391 (6th Cir. 1998).No. 06-3952

Sall v. Gonzales

- 9 - IV . C ON CL USI ON Be cause there is substantial evidence to support the I J ’s adve rse c redibility finding , we DENY Mohammed Sall’s petition for re view.