NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0697n.06
No. 09-3845 FILED
Nov 12, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
MOUSSAN DIOP, )
)
Petitioner, ) ON PETITION FOR REVIEW
) OF A FINAL ORDER OF THE
v. ) BOARD OF IMMIGRATION APPEALS
)
ERIC H. HOLDER, JR., )
)
Respondent. )
Before: DAUGHTREY, GILMAN, and McKEAGUE, Circuit Judges.
PER CURIAM. Petitioner Moussan Diop, a native and citizen of Mauritania, entered
the United States from Senegal on May 14, 2000, using a fraudulent passport. Once in
this country, Diop filed applications for asylum, for withholding of removal, and for relief
under the United Nations Convention Against Torture. Each of those requests was denied,
and Diop now seeks review of those decisions, asserting that the immigration judge and
the Board of Immigration Appeals (BIA) erred in determining that: (1) his hearing testimony
was not credible; (2) he failed to offer sufficient documentary corroboration to support his
claims; (3) the government could rely at the administrative hearing on an internal document
of questionable trustworthiness; and (4) country conditions in Mauritania had changed for
the better since Diop’s flight from his homeland. For the reasons detailed in this opinion,
we agree with the BIA that the petitioner has not demonstrated his entitlement to the relief
he seeks; we thus deny Diop’s petition for review.
No. 09-3845
Diop v. Holder
I. FACTUAL AND PROCEDURAL BACKGROUND
According to the administrative record, petitioner Diop, an ethnic Fulani, was born
in Mauritania in 1960, was married in that country, and eventually reared four children with
his wife. For three years after his marriage, the petitioner said, he worked on his family’s
farm, eking out a living by raising wheat and tending to cattle, goats, and sheep. Then,
according to Diop, in April 1989 white Moor soldiers surrounded the farm, tied the hands
of each adult family member behind his or her back, informed them that the soldiers were
confiscating the livestock and the land, and told the family that “[t]hey were going to deport
[them] to Senegal.” When Diop’s father voiced objections, the soldiers began beating him
with their guns, eventually killing him. The soldiers also beat the petitioner, but he was
able to escape the assault with only cuts and multiple scars. The soldiers did, however,
force Diop, his wife and children, his mother, and two of his siblings to walk to the river
dividing Mauritania from Senegal and then cross into Senegal where the petitioner lived
for the next 11 years.
According to Diop’s testimony, in 2000, a wealthy man took pity on him, procured
a Senegalese passport for him at no charge, and also purchased for the petitioner a one-
way airline ticket to New York City from Dakar, Senegal. Diop also said, however, that
after arriving in this country, the benefactor took back the passport, leaving Diop without
one.
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Diop eventually applied for asylum but, more than three years later, an asylum
officer denied Diop’s application and referred the matter to an immigration judge. After an
evidentiary hearing in 2007, during which Diop was the sole witness, the immigration judge
also denied relief. In doing so, the immigration judge questioned Diop’s credibility, focusing
upon his evasiveness during cross-examination, the lack of documentary corroboration for
Diop’s story, and the inconsistencies between Diop’s first and second asylum applications
and between his original application and his hearing testimony. Furthermore, the
immigration judge concluded that the petitioner failed to demonstrate a well-founded fear
of future persecution should he be returned to Mauritania, in large part because Diop’s
“brother lives in the same town from which the [petitioner] claims his family was evicted in
1989 and apparently has experienced nothing in the way of persecution.” Noting that Diop
thus failed to meet the burden of proof necessary to establish his eligibility for asylum, the
immigration judge also ruled that the petitioner did not satisfy the higher standards required
to justify a grant of withholding of removal or a grant of relief under the Convention Against
Torture.
Diop timely appealed that decision to the BIA, but the Board dismissed the appeal
after first upholding the immigration judge’s credibility determination. The BIA noted,
however, that even if the petitioner had been found credible and had established that he
had been persecuted in the past, “his application for asylum would still be denied as the
preponderance of the evidence demonstrates that there has been a fundamental change
in circumstances such that [Diop] no longer has a well-founded fear of future persecution
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Diop v. Holder
if he is removed to Mauritania.” The Board, like the immigration judge, also highlighted the
fact that the petitioner’s brother “continues to reside in Mauritania in the same town that
[Diop’s] family lived in prior to their expulsion,” apparently without adverse repercussions.
Diop now petitions this court for review of those adverse administrative rulings.
Before the immigration judge and the BIA, he argued that he was eligible for asylum,
withholding of removal, and relief pursuant to the Convention Against Torture. His brief
before this court, however, is limited to a challenge to the denial of his asylum application.
We need not, therefore, address any prior claim regarding withholding of removal or relief
pursuant to the Convention Against Torture because “issues” adverted to [on appeal] in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are
deemed waived.” United States v. Demjanjuk, 367 F.3d 623, 638 (6th Cir. 2004) (citations
and quotation marks omitted).
II. DISCUSSION
In addressing Diop’s challenge to the denial of his asylum request, we are
constrained in the scope of our review. When, as in this case, the BIA issues its own
separate opinion after reviewing the decision of an immigration judge, we are required to
treat the BIA ruling as the final agency determination. See Morgan v. Keisler, 507 F.3d
1053, 1057 (6th Cir. 2007). We then review all legal determinations de novo, granting
substantial deference to the BIA’s interpretation of the Immigration and Nationality Act, 8
U.S.C. §§ 1101-1537, and to the Act’s accompanying regulations. See id. Moreover, we
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must sustain the factual findings in an administrative ruling if the determination is
“supported by reasonable, substantial, and probative evidence on the record considered
as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). “Under this deferential
standard, we may not reverse the Board’s determination simply because we would have
decided the matter differently.” Koliada v. INS, 259 F.3d 482, 486 (6th Cir. 2001) (citing
Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir. 1998)). Rather, to overturn such a factual
determination, “we must find that the evidence not only supports [a contrary] conclusion,
but compels it.” Elias-Zacarias, 502 U.S. at 481 n.1.
Resolution of an asylum request involves “a two-step inquiry: first, whether the
petitioner is a ‘refugee’ within the meaning of [8 U.S.C. § 1101(a)(42)(A)], and second,
whether the petitioner merits a favorable exercise of discretion by the Attorney General.”
Perkovic v. INS, 33 F.3d 615, 620 (6th Cir. 1994) (citing INS v. Cardoza-Fonseca, 480 U.S.
421, 428 n.5 (1987)). See also 8 U.S.C. § 1158(b)(1). The term “refugee” is defined as
any person who is outside any country of such person’s nationality or, in the
case of a person having no nationality, is outside any country in which such
person last habitually resided, and who is unable or unwilling to return to,
and is unable or unwilling to avail himself or herself of the protection of, that
country because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group,
or political opinion.
8 U.S.C. § 1101(a)(42)(A). “An applicant who has been found to have established . . . past
persecution shall also be presumed to have a well-founded fear of persecution on the basis
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of the original claim.” 8 C.F.R. § 208.13(b)(1). That presumption may be overcome,
however, if the immigration judge or BIA finds, by a preponderance of the evidence, that:
(A) There has been a fundamental change in circumstances such that the
applicant no longer has a well-founded fear of persecution in the applicant’s
country of nationality . . . on account of race, religion, nationality,
membership in a particular social group, or political opinion; or
(B) The applicant could avoid future persecution by relocating to another part
of the applicant’s country of nationality . . . and under all the circumstances,
it would be reasonable to expect the applicant to do so.
8 C.F.R. § 208.13(b)(1)(i).
In attempting to establish that he was a victim of past persecution – and
concomitantly, entitled to a presumption that he also bears a well-founded fear of future
persecution – Diop detailed the horrific experience of seeing armed soldiers round up his
family, attack them with the butts of firearms, confiscate their homeland and belongings,
beat his father to death, and then force his family to walk with their hands bound behind
them to a foreign country. The immigration statutes do not define the term “persecution,”
but the treatment described by the petitioner clearly rises well above the level of “a few
isolated incidents of verbal harassment or intimidation, unaccompanied by any physical
punishment, infliction of harm, or significant deprivation of liberty” that we have held would
not constitute “persecution.” Mikhailevitch, 146 F.3d at 390.
Nevertheless, the immigration judge and the BIA agreed that Diop’s testimony did
not establish that he was subjected to past persecution because of concerns the
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administrative decision-makers had with the petitioner’s credibility. Some of those
concerns appear to have been fully justified; others, possibly less so. We need not tarry
over the merits of the challenges to the petitioner’s credibility, however, because even if
Diop were found to be credible, and thus a victim of past persecution, the evidence in the
administrative record does not compel the conclusion that the BIA erred in finding that the
petitioner “no longer has a well-founded fear of future persecution if he is returned to his
country.”
In concluding that Diop lacked a well-founded fear of future persecution if removed
to Mauritania, the BIA relied in large part on country reports prepared by the United States
Department of State. In particular, the BIA noted that those reports on Mauritania “reflect
that the government under which [Diop] was persecuted is no longer in power,” “reveal that
the new government is attempting to take the country in a new direction and that the new
government’s human rights record has shown some improvement,” and “indicate that most
of the people who were expelled or fled during the worst period of abuse have returned to
Mauritania with the consent of the government.” In fact, the State Department report
released in March 2007 chronicles that, in 2006 in Mauritania, “there were no reports that
the government or its agents committed arbitrary or unlawful killings,” “there were no
deaths resulting from police action against demonstrators,” “[t]here were no reports of
politically motivated disappearances,” and many returning refugees “received their original
homes, some property, and all or a portion of their land.”
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Diop argues for the first time in his appellate brief that the political situation in his
homeland has recently changed again, this time for the worse. He claims that since the
time of his evidentiary hearing, “there has been a coup in Mauritania. Specifically, the
former military leader, Mohamed Ould Abdel Aziz[,] is now in power. General Mohamed
Ould Abdel Aziz was a military leader prior to the 2005 elections, and a leader in the
military during a time when ethnic cleansing took place . . . .” We cannot, however, take
judicial notice of facts that are not contained in the administrative record. See Lin v.
Holder, 565 F.3d 971, 978-79 (6th Cir. 2009).1
The immigration judge and the BIA further premised their determination that Diop
could not demonstrate a well-founded fear of future persecution on the undisputed fact that
the petitioner’s brother had remained in Mauritania since 1989 and continued to live in the
same town where the family resided prior to its forced expatriation. Because Diop did not
indicate that his brother had been harmed, targeted, or discriminated against in any way
during the petitioner’s own exile, he is unable to convince us that the evidence in the
administrative record compels a conclusion different than that reached by the BIA.
For these reasons, we DENY Diop’s petition for review.
1
Diop may, nevertheless, file with the BIA a motion to reopen the proceedings. See
8 U.S.C. § 1229a(c)(7)(C)(ii). In such a filing, he is entitled to highlight new information that
establishes the claim he now puts forth.
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