In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3478
N DEYE F. T OURE,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A098-510-529
A RGUED S EPTEMBER 9, 2009—D ECIDED O CTOBER 8, 2010
Before F LAUM, E VANS, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Ndeye F. Toure, a citizen of the
Republic of the Congo, maintains that she arrived in
the United States on June 13, 2004 after being transported
here by a smuggler. In October 2004, Toure applied for
asylum, withholding of removal, and protection under
the United Nations Convention Against Torture (“CAT”).
The immigration judge (“IJ”) denied Toure’s applica-
tion, in part based on an adverse credibility determina-
2 No. 08-3478
tion and Toure’s failure to prove that she applied for
asylum within a year of arriving in the United States. Toure
appealed the IJ’s denial to the Board of Immigration
Appeals (“BIA”) and filed a motion to reopen based on
ineffective assistance of counsel. The BIA affirmed the
IJ’s decision and also denied Toure’s motion to reopen.
Toure now petitions this court for review. Finding that
substantial evidence supported the BIA’s findings and
that the BIA did not abuse its discretion in denying
Toure’s motion to reopen, we deny the petition for review.
I. BACKGROUND
Ndeye F. Toure is a native and citizen of the
Republic of the Congo (“ROC”). Toure is a member of the
Lari tribe and lived most of her life in Pointe Noire, where
she shared a farmhouse with her husband, children,
mother, father, and two brothers. The ROC has been
plagued by civil unrest since the 1960s, and in 2002, the
ROC experienced an increased number of violent out-
breaks between warring political factions after a series
of rigged elections. Toure states that her family fell victim
to this violence in 2002, when armed men entered the
family home, ransacked it, killed the family dog, and
stole the family’s belongings. Fortunately for Toure’s
family, however, they had received a warning from
neighbors moments earlier that armed individuals were
approaching the neighborhood, allowing them enough
time to hide in the back yard and evade the intruders.
Toure looked on from her hiding place as the intruders
destroyed the family’s home and shot the dog. She
states that she did not recognize any of the intruders and
No. 08-3478 3
could not determine what tribe or political group they
were from.
Toure reports that a similar incident occurred in
March 2004, when another group of unknown intruders
entered Toure’s residence. On this occasion, only Toure
and her mother were at home. Toure’s father was appar-
ently out working in the fields, her brothers had gone
out, and Toure’s husband had taken the children to the
store where he worked in the town market. At some
point, Toure heard noises coming from outside her
mother’s bedroom and went outside to investigate. The
next thing Toure says she remembered was waking up
inside a sparsely furnished room that appeared to be a
store. Toure states that she did not know exactly what
happened at the family’s house, but surmised that one
of the intruders hit her in the back of the head, knocking
her unconscious, and then brought her to this unknown
location. Toure never actually saw any of her captors
and does not know why she was targeted, but she be-
lieves that they were civilians who were members of an
opposing political group or a different ethnic group.
Shortly after regaining consciousness, Toure realized
that there were also two men in the room where she was
being held. They told Toure that they had been kidnaped
that day during another attack at the town market. Toure
states that she asked the two men why she was being
held, to which they responded that they had been asking
themselves the same question. According to Toure, she
did not know the two men, but they claimed to recognize
her from the market where her husband worked. The
two men told Toure that a fight between two ethnic
4 No. 08-3478
groups had broken out at the market and that everyone
began to flee. Toure states that the two men also told
her that they believed that some of Toure’s relatives had
been killed in the attack. This belief was based on them
having allegedly seen Toure’s husband trying to flee the
market with their children during the melee. Toure main-
tains that the two men told her that the fight began
in the fields and then spread to the market, which led
Toure to believe that her father had also been killed. Toure
alleges that at some point during the conversation, the
men told her that her family home had been ransacked
by the same attackers who started the fight in the
fields and market. When asked by the IJ how the two
men would know anything about her house in particular
being ransacked, Toure testified that she was unsure but
that it was possible that they saw the home being ran-
sacked as they were being transported to the location
where they were held captive.
According to Toure, the two men next told her that
they had hatched an escape plan, which involved
breaking down the door to the room where they were
being held. The men asked Toure if she wished to join
them, which she did. Toure states that the men were
able to break down the door that night, and they all ran
into the forest. After walking for most of the night, they
came upon a hut in the woods. Inside was an old
woman, whom they begged for food and something to
drink. The woman obliged, but told them that they
needed to move on. They continued walking and eventu-
ally met a truck driver. Toure convinced him to take them
to Gabon, a small country to the immediate west of the
ROC. Toure states that she and her fellow captives stayed
No. 08-3478 5
in Gabon for two months. She left after meeting a
smuggler who transported her to the United States.
Toure claims that she arrived at John F. Kennedy Inter-
national Airport on June 13, 2004. In October 2004, Toure
began the affirmative application process for asylum,
withholding of removal, and CAT relief. The affirmative
application process allows aliens not already involved in
immigration proceedings to apply for asylum within
one year of arrival and to be interviewed in a non-ad-
versarial manner by an agent from the United States
Citizenship and Immigration Service. If the application is
not approved, as occurred with Toure’s application, the
case is referred to an IJ for de novo consideration. Toure
first appeared before the IJ in December 2004 and con-
ceded removability. Alexandra Branick, Toure’s attorney
at the time, informed the IJ that they planned to submit
proof of the date Toure had arrived in the United States
in the form of “affidavits from individuals.” Branick
agreed to submit the proof by December 15, 2005, and the
IJ scheduled the removal hearing for January 6, 2006. The
hearing was later rescheduled for March 20, 2007.1
1
By the time of the January 2006 hearing, Branick, who was
employed at the Law Offices of Susan Fortino-Brown during
her representation of Toure, was no longer with the law firm,
so Fortino-Brown began representing Toure. On the morning
of the hearing, everyone was present in the courtroom with
the exception of Fortino-Brown, who never showed up due to
a scheduling error. The IJ continued Toure’s removal hearing
until March 20, 2007 because Toure’s attorney was not present.
(continued...)
6 No. 08-3478
At the removal hearing, Toure’s testimony was rife
with inconsistencies between her statements on the
record and her first and second asylum applications.
Among these discrepancies were the length of time she
had been held captive (her first asylum application
stated that she was held for weeks, but she testified on
direct examination that she was only held for one day);
whether she had been pregnant at the time of her
capture and miscarried while being held captive (infor-
mation that she revealed for the first time during cross-
examination); whether her father had been shot during
the 2002 incident (in the February 2006 asylum applica-
tion, she stated that her father was shot by rebels, but on
cross-examination she testified that he was not and that
the statement on the application must have been a mis-
take); and whether her children and brothers were alive
(on direct examination she said that she did not know
where they were or if they were alive, but on her asylum
application she said that they were in Senegal).
Questions about Toure’s identity also arose when she
presented a card she claimed was her ROC national
identification card. One problem with the card was that
it contained an inaccurate birth date—the card stated
that Toure was born on March 26, 1965, which con-
tradicted her testimony on direct examination that she
was born on March 23, 1965 and her testimony on cross-
examination that she was born on March 28, 1965. More
(...continued)
In the interim, Toure filed a second asylum application in
February 2006.
No. 08-3478 7
troubling was the baffling story of how Toure obtained
the card. She claimed that she received the card the
previous week and that someone had dropped it off at
her house, although she did not know who had done so.
Toure explained that the card was sent to her from
the ROC by a man she did not know, but who was willing
to help her based on a reference from a mutual friend.
Toure said that she had simply sent the man a picture
of herself and that he obtained the identification card
by going to city hall and presenting the picture, which
they used to confirm Toure’s identity.
One of the only assertions Toure consistently made
during her testimony was that she did not know who
had attacked the family or who might attempt to do so
upon her return. Toure stated repeatedly that she
has “enemies that I didn’t know.” She was similarly
unable to offer any non-conjectural reason for why the
unknown attackers had targeted her family. She testi-
fied, “I didn’t know the people who attacked me. I didn’t
know their reasons for the attack.” At one point, Toure
speculated that the attacks were committed by members
of a political party. Although she herself had never been
interested or involved in politics, Toure theorized that
her father’s political activities might have been the
reason for the attacks. Toure could not explain the ex-
tent of her father’s involvement in politics aside from
his being a “supporter” of a former president, nor could
she identify the political party of which her father was
a member.
After hearing Toure’s testimony, the IJ rendered an oral
decision denying Toure’s applications for asylum, with-
8 No. 08-3478
holding of removal, and CAT protection. First, the IJ
found that Toure lacked credibility and noted several
discrepancies between her testimony and asylum ap-
plications. The IJ found that the inconsistencies, when
taken as a whole, cast serious doubt on Toure’s claims.
Ultimately, the IJ determined that Toure had not testified
truthfully and found her ineligible for asylum and with-
holding of removal. The IJ further concluded that Toure
failed to show by clear and convincing evidence that
she filed the first asylum application within a year of
arrival. As a third basis for her denial of the asylum
application, the IJ found that Toure’s speculative
beliefs about the unknown attackers and their reasons
for targeting her family were insufficient to establish
past persecution or a likelihood of future persecution.
Finally, the IJ rejected Toure’s application for CAT pro-
tection finding that it was unlikely that Toure would be
tortured if she returned to the ROC.
Toure appealed the IJ’s decision to the BIA and filed a
motion to reopen the proceedings based on ineffective
assistance of counsel. Toure alleged that her former
attorney, Susan Fortino-Brown, had been ineffective in
representing her because she failed to accurately portray
Toure’s version of events, thereby leading to the IJ’s
unfavorable credibility determination. Toure attributes
any mistakes in the record to translation problems since
she primarily speaks French and Fortino-Brown does
not. Along with an affidavit and a copy of her bar com-
plaint against Fortino-Brown, Toure attached to the
motion an affidavit dated January 28, 2008 from Libasse
Dia to corroborate Toure’s purported date of arrival. The
affidavit stated that Dia saw Toure sitting in front of a
No. 08-3478 9
mosque in Brooklyn on June 13, 2004, and, realizing
that Toure needed help, advised her of a Congolese
community in Indiana that she should consider since
she had no relatives in the United States. The affidavit
further avers that Dia then gave Toure a ride to the bus
terminal (presumably so that Toure could begin her
journey to Indiana).
In a written order entered in August 2008, the BIA
affirmed the IJ’s denial of Toure’s application for
asylum, withholding of removal, and CAT protection. The
BIA agreed with the IJ’s determination that Toure’s
application was time-barred and affirmed the IJ’s
finding that Toure was not credible. The BIA next deter-
mined that, even if it assumed Toure was credible, she
had failed to establish that the attacks on her family
constituted persecution or that the attacks were related
to political opinion on any ground protected under
the Immigration and Nationality Act, 8 U.S.C. § 1101(42).
The BIA also denied Toure’s motion to reopen, finding
that Toure had not shown that Dia’s affidavit was previ-
ously unavailable or that she suffered prejudice. Toure
now seeks review of the BIA’s order.
II. ANALYSIS
When Toure’s petition was initially filed, one of the
threshold questions was whether we had jurisdiction to
review Toure’s motion to reopen because, under our
precedent at the time, we lacked jurisdiction to review
denials of motions to reopen. See Kucana v. Mukasey, 533
F.3d 534, 536 (7th Cir. 2008). During the pendency of
10 No. 08-3478
this case, however, the Supreme Court overruled this
precedent and instead held that federal courts have
jurisdiction to review the BIA’s denial of a motion to
reopen. Kucana v. Holder, 130 S. Ct. 827, 831 (2010). There-
fore, we will address the merits of the BIA’s denial
of withholding of removal and CAT protection, as well
as its denial of Toure’s motion to reopen.2 Where, as
here, the BIA affirms the IJ’s decision and supplements
with its own explanation for denying the appeal, we
review the IJ’s decision as supplemented by the BIA’s
reasoning. Juarez v. Holder, 599 F.3d 560, 564-65 (7th
Cir. 2010).
A. Withholding of Removal and CAT Protection
We turn first to the denial of Toure’s applications for
withholding of removal and CAT protection. We review
the IJ’s denial of Toure’s requests for relief under the
highly deferential substantial evidence test. Under that
standard, “we must uphold the IJ’s findings if they are
supported by reasonable, substantial, and probative
evidence on the record considered as a whole; we may
reverse the IJ’s determinations only if we determine that
the evidence compels a different result.” Balogun v.
Ashcroft, 374 F.3d 492, 498 (7th Cir. 2004) (emphasis
in original).
2
As both parties agree, we do not have jurisdiction to review
the BIA’s determination that Toure’s asylum application
was untimely. 8 U.S.C. § 1158(a)(3); Ogayonne v. Mukasey, 530
F.3d 514, 519 (7th Cir. 2008).
No. 08-3478 11
An alien is entitled to withholding of removal if he
can show a “clear probability” that his “life or freedom
would be threatened . . . because of the alien’s race, reli-
gion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). To
meet this standard, an alien must show that he was
subject to past persecution or that it is more likely than
not that he will suffer persecution in the future if he
is removed. 8 C.F.R. § 1208.16(b). A showing of past
persecution creates the rebuttable presumption of future
persecution. Id. “[P]ersecution entails punishment or the
infliction of harm for political, religious, or other rea-
sons that this country does not recognize as legitimate.”
Khan v. Filip, 554 F.3d 681, 690 (7th Cir. 2009) (citation and
internal quotation marks omitted). It is not necessary for
an alien to “show that her life or freedom were threat-
ened, but the harm she suffered must rise above the
level of ‘mere harassment’ and must result from more
than unpleasant or even dangerous conditions in her
home country.” Nakibuka v. Gonzales, 421 F.3d 473, 476
(7th Cir. 2005).
Here, the IJ determined that, even when Toure’s
asylum claim was considered on the merits, it was unsuc-
cessful because she failed to establish that she had a well-
founded fear of persecution on account of any protected
characteristic. Toure’s failure to prove persecution suffi-
cient to establish asylum necessarily means that she
cannot meet the standard for withholding of removal.
This is so because to qualify for withholding of removal,
one must show “a clear probability” of persecution,
which is a higher standard than that required to estab-
lish “a well-founded fear” of persecution for asylum.
12 No. 08-3478
Kholyavskiy v. Mukasey, 540 F.3d 555, 568 n.14 (7th Cir.
2008); see Kaharudin v. Gonzales, 500 F.3d 619, 623 (7th
Cir. 2007) (observing that withholding of removal re-
quires the petitioner to establish a “clear probability
that she will face persecution” and that this is a “more
stringent burden than that applied to asylum claims”).
The IJ’s finding that Toure had not shown past persecu-
tion was amply supported by the record. Despite Toure’s
attempt to establish past persecution by referencing the
2002 and 2004 attacks, the IJ properly concluded that,
even if true, those events could not constitute persecu-
tion because there was no nexus between the attacks and
the racial background or political views of Toure or her
family. Toure herself repeatedly testified at the re-
moval hearing that she had no idea who the attackers
were, what ethnic group they belonged to, or why they
attacked her and her family. She also spoke of the ROC’s
civil war and competing rebel groups causing violence
throughout the country. The level of overall danger in
the country, however, is not a sufficient basis to find
persecution. See Ahmed v. Gonzales, 467 F.3d 669, 673
(7th Cir. 2006) (“Persecution is not so broad a concept as
to encompass all that we regard as ‘unfair, unjust, or
even unlawful or unconstitutional.’ Persecution . . . re-
sults from more than simply ‘unpleasant or even dan-
gerous conditions in [the applicant’s] home country.’ ”)
(citations omitted). Rather, Toure must somehow connect
these dangers to the persecution of herself or other mem-
bers of her group, showing that people with her political
opinion, religion, or ethnic background were being tar-
geted. Her inability to show that the harm inflicted was
related to a protected characteristic rather than a harm
No. 08-3478 13
suffered by the general population indicates that this
was not persecution, but more likely the consequence
of general country warfare. Sivaainkaran v. I.N.S., 972
F.2d 161, 165 (7th Cir. 1992).
Toure’s claim that she had a well-founded fear of
future persecution also fails. In order to establish a well-
founded fear of future persecution, “an alien must not
only show that his or her fear is genuine but must estab-
lish that a reasonable person in the alien’s circum-
stance would fear persecution. A petitioner can meet the
objective component through the production of specific
documentary evidence or by credible persuasive testi-
mony, while the subjective component turns largely
upon the applicant’s own testimony and credibility.”
Gomes v. Gonzales, 473 F.3d 746, 755 (7th Cir. 2007) (cita-
tions and internal quotation marks omitted). The IJ
found that Toure was not a credible witness and denied
her applications for asylum and withholding of removal
on that basis. We accord substantial deference to an
IJ’s credibility determination if it is supported by
“specific, cogent reasons that bear a legitimate nexus to
the finding.” Torres v. Mukasey, 551 F.3d 616, 626 (7th Cir.
2008).
Based on Toure’s testimony at the 2007 hearing alone,
the IJ had sufficient grounds to find her testimony incredi-
ble. Toure’s testimony was replete with material incon-
sistencies, including the length and conditions of her
confinement, her knowledge about the whereabouts of
her brother and children, and whether her father had
been shot during the 2002 incident. It also appeared that
Toure was supplementing some of her earlier state-
14 No. 08-3478
ments by adding new facts about the attacks, such as her
waking up in a pool of blood after allegedly having a
miscarriage. Oddly, this testimony during cross-examina-
tion was the first time in the immigration process
(which had begun three years and two asylum applica-
tions earlier) that Toure had ever mentioned the possi-
bility that she was pregnant and had undergone a mis-
carriage during her captivity. We have found that “the
addition of new factual assertions that were not orig-
inally set forth can be viewed as inconsistencies pro-
viding substantial evidence that the applicant is not a
reliable or truthful witness.” Xiao v. Mukasey, 547 F.3d 712,
717 (7th Cir. 2008) (citations and internal quotation marks
omitted). In light of the evolution of Toure’s assertions,
there was substantial evidence supporting the IJ’s finding
that Toure was embellishing her original claim in an
attempt to increase her chances at obtaining relief.
The IJ’s denial of Toure’s request for CAT protection
was also appropriate. To obtain protection under
CAT, one must show that “it is more likely than not that
[one] would be tortured if removed to the proposed
country of removal.” Rashiah v. Ashcroft, 388 F.3d 1126,
1131 (7th Cir. 2004). “Torture” is defined as “any act by
which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person” for pur-
poses of obtaining a confession, punishment, intimidation,
or “for any reason based on discrimination of any
kind” when the pain is inflicted by or at the behest of
a public official. 8 C.F.R. § 208.18(a)(1).
In support of her request for relief under CAT,
Toure relies on her alleged past persecution, which the
No. 08-3478 15
IJ found was not supported by sufficient evidence. As
such, Toure’s CAT request lacks merit for the same
reason her withholding of removal claim failed: she is
unable to establish that she was persecuted for purposes
of asylum, which requires less than what a party must
show to establish a prima facie case for CAT protection.
Selimi v. Ashcroft, 360 F.3d 736, 741 (7th Cir. 2004)
(“To establish a prima facie case under CAT, [peti-
tioners] must show that it is more likely than not that
they would be tortured . . . . This also is a more
stringent requirement than the requirements for asy-
lum.”). Toure’s failure to meet her burden with respect
to asylum means that she necessarily fails to meet
her burden with respect to her request for CAT protection.
B. Ineffective Assistance of Counsel
We next turn to the BIA’s denial of Toure’s motion to
reopen the proceedings based on ineffective assistance
of counsel. Because the BIA has broad discretion in
ruling on motions to reopen, we apply a “deferential,
abuse-of-discretion standard of review.” Juarez, 599 F.3d
at 565. A motion to reopen proceedings “shall not be
granted unless it appears to the Board that evidence
sought to be offered is material and was not available
and could not have been discovered or presented at the
former hearing.” 8 C.F.R. § 1003.2(c)(1). To prevail on
such a motion, Toure must show that her counsel was
both ineffective and that Toure suffered prejudice as a
result of her attorney’s performance. Surganova v. Holder,
612 F.3d 901, 907 (7th Cir. 2010).
16 No. 08-3478
Aliens do not have a right to counsel under the
Sixth Amendment. Id. And we have previously held that
“no statute or constitutional provision entitles an alien
who has been denied effective assistance of counsel in
his . . . removal proceeding to reopen the proceeding
on the basis of that denial.” Jezierski v. Mukasey, 543
F.3d 886, 889 (7th Cir. 2008) (citations omitted). How-
ever, we have also recognized that the denial of effective
assistance of counsel may under certain circumstances
violate the due process guarantee of the Fifth Amend-
ment. Surganova, 612 F.3d at 907; see In re Lozada, 19 I. & N.
Dec. 637, 638 (BIA 1988) (“Ineffective assistance of
counsel in a deportation proceeding is a denial of due
process only if the proceeding was so fundamentally
unfair that the alien was prevented from reasonably
presenting his case.”). Toure asserts that Fortino-Brown
was ineffective for failing to provide the court with the
affidavit corroborating the date of her arrival (as well as
a number of other alleged errors), and that these errors
prejudiced Toure by depriving of her asylum claim alto-
gether.
The BIA gave two reasons for its denial of Toure’s
motion to reopen: (1) that Toure failed to establish that
the affidavit from Dia was previously unavailable; and
(2) that Toure did not demonstrate that she had
been prejudiced. We find that the BIA did not abuse
its discretion in reaching either conclusion. As to the
first finding, Toure’s motion to reopen was properly
denied because she made no showing that the affidavit
from Dia was previously unavailable. Contrary to
Toure’s assertions on appeal, she was well aware of the
No. 08-3478 17
IJ’s request for proof of her date of arrival. During the
December 2004 hearing, the IJ stated on the record that
she needed evidence of Toure’s date of arrival, to which
Branick (who spoke French and, according to Toure,
translated for her) responded that they would provide
affidavits substantiating Toure’s date of arrival. At the
January 2006 hearing, the IJ directly addressed Toure
with the help of a professional French interpreter,
saying, “You realize that there is an issue in your case.
You’re supposed to file for asylum within one year of
your arrival, and we don’t have proof of your date of
entry.” So, even if Toure did not understand the IJ’s
directive at the December 2004 hearing, the IJ made it
abundantly clear at the January 2006 hearing that
Toure needed to provide proof to substantiate her date
of arrival.
Toure not only failed to provide the IJ with any such
proof (or, for that matter, any justification for why she
could not obtain this information), but Toure also
waited to obtain the purportedly corroborating evidence
until January 2008—two years after the 2006 hearing.
Toure has never asserted that she had difficulty
locating anyone who could corroborate her date of ar-
rival. Indeed, Toure’s brief states that her current at-
torney “obtained the affidavit quite easily,” and Dia’s
affidavit avers that he “left [Toure] with my phone
number in case she needed something.” Therefore, the
information contained in the affidavit was known by
and available to Toure long before she filed the affidavit,
and we find that the BIA’s denial of the motion to
reopen was well-grounded.
18 No. 08-3478
As the BIA determined, Toure failed to show that any
alleged ineffective legal assistance prejudiced her. Toure
contends that she was prejudiced by the IJ’s adverse
credibility finding, which the BIA affirmed based on its
deferential standard of review for credibility ques-
tions. Toure’s argument ignores that the IJ’s credibility
finding was based on the totality of her suspicions sur-
rounding Toure’s testimony and that none of the errors
that Toure alleges her attorney made had any effect on
that finding. Simply put, the IJ denied Toure relief be-
cause she did not believe her story. It is unlikely that
the affidavit—which only affected the question of
whether the application was time barred—would have
changed the IJ’s credibility finding. This is particularly
true in light of the far-fetched nature of the affidavit’s
claims 3 , which may have had the effect of bolstering the
IJ’s adverse credibility determination.
3
In its entirety, the unedited text of Dia’s affidavit reads:
On Jun 13 of the year 2004 I picked Ndeye Fatou Toure
a Congolese lady that needed help. She was seating in
front of a mosque locate in Brooklyn Fulton street
I advised her that in the state of Indiana it existed a
community of Africans from Congo her country of
origin and that she needed to try it since she did not
have any relatives in NY. I also offered her ride to
the greyhound bus terminal where I dropped her off.
I left with my phone number in case she needed some-
thing.
If you needed additional information please feel free
to contact me at [redacted phone number].
No. 08-3478 19
More importantly, despite the IJ’s credibility deter-
mination and finding that Toure’s claim was time-
barred, the IJ still considered Toure’s application for
asylum on the merits and found that denial of the ap-
plication was appropriate because the alleged attacks
did not rise to the level of persecution. As such, Toure
cannot establish that she was prejudiced by her at-
torney’s alleged mistakes because the IJ would have
denied her claim on the merits even if the credibility
and time barriers were not present. Based on the record,
the BIA was entitled to find that Toure suffered no preju-
dice. See Achacoso-Sanchez v. I.N.S., 779 F.2d 1260, 1266
(7th Cir. 1985) (“[T]he Board’s reason need not be com-
pelling, or even convincing, to be sufficient. The Board’s
decision is reasoned, and that is enough.”).
III. CONCLUSION
The petition for review is D ENIED.
10-8-10