Fall v. Holder

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 27, 2014

Elisabeth A. Shumaker
Clerk of Court
BILLO FALL; MADIAMA MBAYE,

Petitioners,

v. No. 13-9560
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,

Respondent.

ORDER AND JUDGMENT*

Before KELLY, ANDERSON, and MATHESON, Circuit Judges.

Billo Fall and her husband, Madiama Mbaye, natives and citizens of Senegal,

petition for review of a final order of removal from the Board of Immigration

Appeals (BIA). Because petitioners’ challenge to the agency’s denial of their

untimely asylum application does not raise a constitutional claim or question of law,

we lack jurisdiction to review it and dismiss that portion of the petition. Ferry v.

*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Gonzales, 457 F.3d 1117, 1130 (10th Cir. 2006); 8 U.S.C. § 1158(a)(3). We do,

however, have jurisdiction to consider the agency’s denial of restriction on removal,

8 U.S.C. § 1252(a), and deny the remainder of the petition.

Background

Ms. Fall and her husband were admitted to the United States on nonimmigrant

visas in 2001 and 2000, respectively, but overstayed. In 2007, the government

initiated removal proceedings. Petitioners conceded removability and filed

applications for asylum, restriction on removal, and relief under the Convention

Against Torture (CAT). Petitioners claimed eligibility on account of their political

opinion and membership in a particular social group.

In response to whether she or anyone closely associated with her had

experienced past harm, Ms. Fall indicated on her application that her aunt was a

victim of female genital mutilation (FGM). She also stated that she feared returning

to Senegal because she is afraid that she and her daughters will be subjected to the

procedure. Ms. Fall’s husband sought derivative asylum relief, but filed a separate

application for restriction on removal and CAT protection. In his application,

Mr. Mbaye stated that his wife was tortured in Senegal because she refused to

undergo FGM. He also stated that he fears returning to Senegal because he will be

beaten and tortured for not allowing his wife and daughters to be circumcised.

In a hearing before an Immigration Judge (IJ), Ms. Fall testified that she is

from a tribe that practices FGM. She said that in 1992 her aunts and uncles beat her,

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and that the beating intensified when she voiced her opposition to FGM. She

submitted photos of scars she claims are from that attack. She testified that she

suffered other beatings, but that the 1992 attack was the most severe. Ms. Fall’s

husband and sister also testified.

At the end of the hearing, the IJ denied petitioners’ asylum application as

untimely, found their testimony incredible, and denied their requests for restriction

on removal and CAT protection. In evaluating Ms. Fall’s testimony, the IJ focused

on her failure to mention the 1992 attack in her application. He found her excuse for

the omission—that she was ashamed—unpersuasive; specifically, he could not square

Ms. Fall’s ability to mention her fear of FGM, but inability to mention a prior

FGM-related beating. The IJ noted that Ms. Fall did not produce any evidence

corroborating the cause of her scars and that her testimony about the severity of the

1992 beating conflicted with her sister’s. Consequently, the IJ concluded that the

record failed to establish that Ms. Fall suffered past persecution. In rejecting

Ms. Fall’s fear of future persecution, the IJ observed, among other things, that FGM

is criminalized in Senegal, it is on the decline, and it is not widespread in urban areas

such as Dakar, where Ms. Fall has roots. Citing Matter of A-K-, 24 I. & N. Dec. 275,

278-79 (BIA 2007), the IJ also rejected petitioners’ claim to restriction on removal

based on their fear that if they return to Senegal, their daughters may be subjected to

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FGM. Admin. R. at 52.1 The BIA upheld the IJ’s determination that petitioners

were statutorily ineligible for asylum because their asylum application was untimely

filed, upheld the IJ’s denial of restriction on removal, found petitioners’ CAT claim

waived, and dismissed petitioners’ appeal.

In this court, petitioners challenge the BIA’s asylum and restriction on

removal rulings. As previously noted, however, we lack jurisdiction to review the

agency’s denial of asylum. Further, petitioners have apparently abandoned any claim

that Mr. Mbaye is entitled to restriction on removal. Their opening brief takes issue

with the BIA’s denial of Ms. Fall’s request for restriction on removal only,

challenging the BIA’s determinations that she failed to (1) testify credibly,

(2) establish past persecution, or (3) demonstrate a clear probability of future

persecution.

Discussion

In this case, it is the BIA’s brief, single-member decision that we review.

Rivera-Barrientos v. Holder, 666 F.3d 641, 645 (10th Cir. 2012). We “will not

affirm on grounds raised in the IJ decision unless they are relied upon by the BIA in

its affirmance.” Id. (internal quotation marks omitted). “However, when seeking to

1
We note that petitioners have waived any challenge to that ruling by failing to
exhaust it before the BIA or raise it in their opening brief in this court. See Sidabutar
v. Gonzales, 503 F.3d 1116, 1118 (10th Cir. 2007) (“[W]e generally assert
jurisdiction only over those arguments that a petitioner properly presents to the
BIA.”); Krastev v. INS, 292 F.3d 1268, 1280 (10th Cir. 2002) (“Issues not raised on
appeal are deemed to be waived.”).

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understand the grounds provided by the BIA, we are not precluded from consulting

the IJ’s more complete explanation of those same grounds.” Uanreroro v. Gonzales,

443 F.3d 1197, 1204 (10th Cir. 2006).

“We review the BIA’s legal conclusions de novo,” Rivera-Barrientos,

666 F.3d at 645, and its factual findings, including credibility determinations, for

substantial evidence, Uanreroro, 443 F.3d at 1204, 1205. “In this circuit, the

ultimate determination whether an alien has demonstrated persecution is a question of

fact” also subject to the substantial-evidence standard. Zhi Wei Pang v. Holder,

665 F.3d 1226, 1231 (10th Cir. 2012) (internal quotation marks omitted). Under that

standard, “[t]he BIA’s findings of fact are conclusive unless the record demonstrates

that any reasonable adjudicator would be compelled to conclude to the contrary.”

Rivera-Barrientos, 666 F.3d at 645 (internal quotation marks omitted).

Our review of a corroboration finding is circumscribed by 8 U.S.C.

§ 1252(b)(4), which states that an adjudicator’s determination shall not be reversed

by a court “unless the court finds . . . that a reasonable trier of fact is compelled to

conclude that such corroborating evidence is unavailable.” See also 8 U.S.C.

§ 1158(b)(1)(B)(ii) (“Where the trier of fact determines that the applicant should

provide evidence that corroborates otherwise credible testimony, such evidence must

be provided unless the applicant does not have the evidence and cannot reasonably

obtain the evidence.”); id. § 1231(b)(3)(C) (applying § 1158(b)(1)(B)(ii)’s standards

to restriction on removal).

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 “To obtain restriction on removal, the alien must demonstrate that her ‘life or

freedom would be threatened in [the proposed country of removal] because of [her]

race, religion, nationality, membership in a particular social group, or political

opinion.’” Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005) (quoting

8 U.S.C. § 1231(b)(3)(A)).

An alien may create a rebuttable presumption of eligibility for
restriction on removal by either (1) demonstrating past persecution in
the proposed country of removal on account of one of the protected
grounds; or (2) showing that it is more likely than not that the alien
would be subject to persecution on one of the specified grounds upon
returning to the proposed country of removal.

Sidabutar, 503 F.3d at 1123-24 (citations and internal quotation marks omitted).

“Persecution is the infliction of suffering or harm upon those who differ . . . in a way

regarded as offensive and requires more than just restrictions or threats to life and

liberty.” Zhi Wei Pang, 665 F.3d at 1231 (internal quotation marks omitted).

Credibility and Past Persecution

Petitioners contend that the BIA erred in upholding the IJ’s adverse credibility

finding and in concluding that Ms. Fall failed to demonstrate past persecution. We

disagree.

The agency gave “specific, cogent reasons for disbelieving” Ms. Fall’s

testimony. Uanreroro, 443 F.3d at 1204 (internal quotation marks omitted). The

BIA highlighted the evidence the IJ cited in support of his adverse-credibility

finding; namely, that Ms. Fall testified she was beaten for resisting FGM but omitted

any mention the beatings in her application. The BIA agreed with the IJ that

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Ms. Fall’s explanation for not mentioning the beatings was unpersuasive. The BIA

noted that although Ms. Fall submitted photos of scars, she did not provide any

medical testimony or other corroborative material linking the scars to the 1992

beating. And the BIA stated that Ms. Fall’s testimony about the severity of the 1992

beating was inconsistent with her sister’s statement that Ms. Fall’s injuries resulted in

only “‘a little bit’ of bleeding.” Admin. R. at 5.

Omissions, implausible explanations, and inconsistent testimony are proper

credibility factors. See Ismaiel v. Mukasey, 516 F.3d 1198, 1205-06 (10th Cir. 2008)

(observing that agency may discredit an applicant’s testimony about significant

incidents where applicant did not disclose that information at earlier stages in the

proceedings); Elzour v. Ashcroft, 378 F.3d 1143, 1152 (10th Cir. 2004) (explaining

that an “adverse credibility determination may” stem from “inconsistencies in the

witness’ testimony, lack of sufficient detail, or implausibility”). Having reviewed the

record in accordance with the prescribed deferential standard of review, we cannot

conclude that the agency’s credibility finding was substantially unreasonable or that

any reasonable adjudicator would be compelled to conclude that Ms. Fall must be

considered a credible witness. Nor would any reasonable adjudicator be compelled

to conclude that corroborating evidence was unavailable. Indeed, petitioners make

no argument concerning the unavailability of corroborating evidence under 8 U.S.C.

§ 1252(b)(4). To prevail on their arguments to the contrary, petitioners would

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require us to reweigh the evidence, which we do not do. See Yuk v. Ashcroft,

355 F.3d 1222, 1236 (10th Cir. 2004).2

Moreover, we reject petitioners’ argument that the BIA erred in denying

Ms. Fall’s claim of past persecution. Our review confirms that substantial evidence

supports the agency’s determination on this point and that no reasonable adjudicator

would be compelled to conclude otherwise.

Future Persecution

Petitioners next assert that the BIA erred in upholding the IJ’s determination

that Ms. Fall failed to establish that it is more likely than not that she will be

persecuted upon her return to Senegal. This argument is also unavailing.

In upholding the IJ’s determination, the BIA, among other things, noted that

Ms. Fall’s husband and family are opposed to FGM, none of Ms. Fall’s sisters has

been circumcised, and Ms. Fall’s “11 year old daughter, who has been living with a

relative in Senegal since she was born, has not been subjected to the procedure”

either. Admin. R. at 5 (citing Ritonga v. Holder, 633 F.3d 971, 977 (10th Cir. 2011)

(noting that continued presence of family in native country without any harm

2
We lack jurisdiction to consider petitioners’ unexhausted (and dubious)
contentions that (1) there was no reason for Ms. Fall’s beatings to be included in her
application, (2) it might not be obvious to an applicant that she must provide all
information on her application, which contains limited space, (3) corroborating
evidence would have repeated Ms. Fall’s allegations, and (4) Ms. Fall’s sister’s
testimony obviated the need for further corroboration. See Sidabutar, 503 F.3d
at 1118 (stating that court of appeals generally does not assert jurisdiction over
unexhausted claims).

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“undercuts . . . asserted fear of persecution”)). Additionally, the BIA observed that

the 2010 State Department Country Report states that “only 28% of girls in Senegal

have undergone FGM,” that the prison sentence for FGM is “6 months to 5 years,”

and that “the government prosecute[s] violators of the law.” Id. at 5-6. Thus, the

BIA concluded that “respondents have not demonstrated that they could not seek

protection from the government.” Id. at 6 (citing Rivera-Barrientos, 666 F.3d at 646

(observing that harm must be “committed by the government or forces the

government is either unable or unwilling to control” (internal quotation marks

omitted)).

Our review confirms that substantial evidence supports the agency’s

determination that Ms. Fall failed to demonstrate a clear probability of future

persecution and that no reasonable adjudicator would be compelled to conclude

otherwise. Again, petitioners’ contrary arguments would require us to reweigh the

evidence, which we do not do. See Yuk, 355 F.3d at 1236.

Conclusion

For the foregoing reasons, the petition for review is dismissed in part and

denied in part.

Entered for the Court

Paul J. Kelly, Jr.
Circuit Judge

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