NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0742n.06
No. 09-3040
FILED
Nov 18, 2009
LEONARD GREEN, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DAOUDA TOURE, )
) ON PETITION FOR REVIEW
Petitioner, ) OF A DECISION FROM THE
) BOARD OF IMMIGRATION
v. ) APPEALS
)
ERIC H. HOLDER, JR., Attorney General of the ) OPINION
United States, )
)
Respondent. )
BEFORE: MERRITT, GIBBONS, and McKEAGUE, Circuit Judges.
McKeague, Circuit Judge. Daouda Toure petitions this court to review an order of the
Board of Immigration Appeals (“BIA”), which dismissed his appeal of the immigration judge’s
(“IJ”) decision denying his application for asylum, withholding of removal, and protection under the
Convention Against Torture. The IJ found that Toure, a native of the Ivory Coast and member of
the Dioula tribe, lacked credibility and failed to establish past persecution or a well-founded fear of
future persecution. Because the IJ’s decision is supported by substantial evidence, we DENY the
petition.
I.
No. 09-3040
Toure v. Holder
Before coming to the United States, Toure owned an art gallery in the West African nation
of the Ivory Coast. Ethnic and political strife have long been recognized in that country, with
documented executions, tortures, arbitrary detentions, and harassment at the hands of military and
rebel forces. The 2006 Country Report from the U.S. State Department lists the government’s
human rights record as poor and notes that tension and political instability remain high. Toure
claims that he was not directly involved in the country’s political turmoil, though he was indirectly
affiliated with members of a major opposition party. According to Toure, a leader of the opposition
party helped him open his art gallery. This in turn meant that many of Toure’s customers were
members of the opposition political party.
In August 2003, Toure received a summons to appear before police as a result of his
affiliation with the opposition party. Before the appearance date arrived, four military officers
apprehended Toure at his gallery and took him, and other detainees, to a detention center. Toure was
detained for three days and interrogated about his involvement with the opposition party. He
claimed that he received daily beatings with a baton and was subject to inhumane living conditions
during his imprisonment. Toure was released from prison on the fourth day, after his mother went
to the detention center in search of him. As a result of the beatings, Toure claimed that he suffered
bruising. He sought medical treatment at a clinic a few days after his release and was told that he
would be okay. Toure then fled the Ivory Coast at the urging of his parents. He first traveled to
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Ghana and then flew from Gambia to Baltimore, Maryland.1 He arrived in Baltimore in December
2003, without a valid visa or passport, and proceeded on to Columbus, Ohio.
After settling in Ohio, Toure filed a handwritten Application for Asylum and for Withholding
of Removal in January 2004. In the application, he claimed fear of mistreatment and torture if he
returned to the Ivory Coast. The application was subsequently referred to an IJ for adjudication of
removal proceedings. At the removal proceeding, Toure testified regarding the 2003 detention. To
support his claim for asylum, he presented his Ivorian birth certificate, his 2003 summons to appear
before police, a U.S. State Department Country Report on the Ivory Coast, and various agency and
news articles detailing the conditions in the Ivory Coast. Additionally, Toure testified that in 2001
he was injured by military agents and subsequently hospitalized with head injuries because he was
in the vicinity of a student demonstration where military agents and demonstrators had clashed.
Toure provided a hospital discharge form to support this incident.
The IJ denied Toure’s claim for asylum, withholding of removal, and protection under the
Convention Against Torture and ordered Toure removed to the Ivory Coast. The IJ found that Toure
lacked credibility due to two inconsistencies. First, the IJ found an inconsistency in whether Toure
signed a document stating that he had not been tortured as a condition of his release from the 2003
imprisonment. Toure testified that he refused to sign the document, yet his Application for Asylum
stated that he “was forced to sign” the document. Second, the IJ found that Toure lacked credibility
1
Toure’s brief claims that his family secured “proper documentation” for him to leave the
Ivory Coast. However, Toure testified in the removal proceeding that he used an Ivorian passport,
which did not contain his name or picture. He apparently used the fraudulent passport to go through
customs at the Baltimore airport.
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on his claim that he was beaten daily during the detention because Toure claimed the beatings caused
non-severe bruising only. Additionally, Toure did not present any documentation to support his
claimed visit to the medical clinic. The IJ further found that Toure did not meet his burden on the
asylum claim because he failed to establish past persecution or a well-founded fear of future
persecution. According to the IJ, the detention alone did not amount to past persecution, and Toure
presented nothing additional to establish a well-founded fear of future persecution. Because Toure
failed to meet his burden on the asylum claim, he also did not meet the higher burden on the
withholding of removal or protection under the Convention Against Torture claims.
Toure appealed the decision to the BIA, which the BIA dismissed. The BIA noted the
inconsistency in whether Toure signed the document and the general lack of credibility and
documentary support. It granted deference to the IJ’s findings and agreed that Toure’s evidence was
insufficient to support his claim. Toure petitions this court to reverse the decision. He claims error
in the IJ’s adverse credibility determination and in the IJ’s determination that he failed to establish
past persecution or a well-founded fear of future persecution.
II.
A. Legal Standard and Standard of Review
An applicant for asylum bears the burden of establishing that he qualifies as a “refugee”
within the meaning of 8 U.S.C. § 1101(a)(42)(A). Mapouya v. Gonzales, 487 F.3d 396, 406 (6th Cir.
2007). This can be met through credible testimony by the applicant showing past persecution or a
well-founded fear of future persecution. Id. The relevant inquiry begins with a credibility
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determination by the IJ and is followed by a determination on whether the applicant meets the
persecution requirement. Id. at 411.
This court reviews the IJ’s factual findings and credibility determination under the substantial
evidence standard. El-Moussa v. Holder, 569 F.3d 250, 255 (6th Cir. 2009); Zhao v. Holder, 569
F.3d 238, 246 (6th Cir. 2009). Legal conclusions are reviewed de novo. Zhao, 569 F.3d at 246.
Under the substantial evidence standard, the administrative finding must be upheld “unless any
reasonable adjudicator would be compelled to conclude to the contrary.” El-Moussa, 569 F.3d at
256 (quoting 8 U.S.C. § 1252(b)(4)(A), (B)). When the BIA adopts the IJ’s reasoning and
supplements with its own opinion, the court directly reviews the IJ’s decision and considers the
additional comments of the BIA. Zhao, 569 F.3d at 246. In this case, Toure challenges the IJ’s
credibility determination and factual findings on his persecution claim, so we review the decision
under the deferential substantial evidence standard. See Gilaj v. Gonzalez, 408 F.3d 275, 283 (6th
Cir. 2005) (per curiam) (“The court reviews the factual determination of whether a petitioner
qualifies as refugee under a ‘substantial evidence’ test.”).
B. Adverse Credibility Determination
An IJ’s adverse credibility determination must be based on inconsistencies that go to the
“heart of the applicant’s claim.”2 Sylla v. INS, 388 F.3d 924, 926 (6th Cir. 2004). The determination
cannot be based on irrelevant inconsistencies, but instead needs to be founded on inconsistencies that
2
The standard for credibility determinations was amended by the REAL ID Act of 2005,
which dictates that credibility determinations can be based on the totality of the circumstances. El-
Moussa, 569 F.3d at 256. This new standard applies to applications filed after May 11, 2005. Id.
Toure’s application is dated January 28, 2004, so it does not fall under the REAL ID Act.
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show an applicant’s attempt “to enhance his claims of persecution.” Id. The court should consider
each of the grounds relied upon by the IJ to determine whether substantial evidence supports the
adverse credibility determination or whether a reasonable adjudicator would be compelled to
conclude otherwise. Zhao, 569 F.3d at 247–48. In this case, Toure argues that the IJ’s credibility
determination is based on inconsistencies that do not go to the heart of his claim and that the
determination is not supported by substantial evidence.
This court has previously held that an inconsistency did not go the heart of a persecution
claim where the inconsistency was over the amount that petitioner claimed he paid to become a
member of a political party. Sylla, 388 F.3d at 926. In Sylla, the petitioner claimed that he was
persecuted due to his membership in the Rally for Guinean People political party, and the court held
that any inconsistencies in the amount he paid for his membership were “minor and irrelevant.” Id.
However, the inconsistencies did go to the heart of the petitioner’s claims where the petitioner
claimed that he would be persecuted if he returned to China after he had assaulted a state official
who forced his wife to obtain an abortion. Zhao, 569 F.3d at 242, 249. The inconsistencies in Zhao
included the date of the forced abortion, the number of times the petitioner hit the official, the person
who told petitioner that state officials were looking for him, and the place that petitioner fled after
he learned that authorities were looking for him. Id. at 248. The court determined that these facts
went to the heart of the persecution claim. Id. Additionally, a fraudulent newspaper clipping,
alleging that petitioner was an anti-communist activist and had received threats from Neo-
Communists, went to the heart of the petitioner’s claim that he suffered past persecution due to his
political activities. Selami v. Gonzales, 423 F.3d 621, 625–26 (6th Cir. 2005).
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This court has also held that an adverse credibility determination could be upheld even if
some of the IJ’s findings were not supported by substantial evidence. Sarr v. Gonzales, 485 F.3d
354, 360–61 (6th Cir. 2007). In Sarr, the IJ determined that the petitioner lacked credibility due to
numerous inconsistencies in the record. Id. The Sarr court noted that the IJ misinterpreted or
overemphasized the evidence on some of the inconsistencies. Id. at 361. Nevertheless, the court
upheld the adverse credibility determination because the petitioner failed to introduce any
documentation or evidence to corroborate his claims of past arrests, hospitalizations, or injuries. Id.
In affirming the IJ’s adverse credibility determination, the court noted the overall state of the record
and the deference that must be afforded to the IJ’s determination. Id.
In the case at bar, the IJ advanced two reasons to support the adverse credibility
determination. First, the IJ noted the inconsistency in whether or not Toure actually signed the
document stating that he was not tortured. Second, the IJ found that Toure’s claim of beating was
not consistent with the injuries he sustained and that Toure did not provide documentation to support
his beating or injury claim. Toure claims error with these findings because the stated inconsistencies
do not go to the heart of his claim and because they are against the substantial weight of evidence.
As to the first inconsistency, whether Toure signed the document, this appears to be a “minor and
irrelevant” inconsistency, which Toure is not using “to enhance his claims of persecution.” See
Sylla, 388 F.3d at 926. Thus, it does not go to the heart of his persecution claim.
Yet even if this inconsistency does not go to the heart of Toure’s claim, the IJ also found
Toure’s claim of beating lacked credibility and was not substantiated by any evidence. This court
has previously upheld an adverse credibility determination, even though part of the determination
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was based on findings not substantiated by the record. See Sarr, 485 F.3d at 361 (“[O]ur review of
the administrative record convinces us that some of these alleged inconsistencies involved a
misinterpretation of the evidence . . . .”). Thus, in this case, the IJ’s adverse credibility finding
should still be upheld if the other stated reason is supported by substantial evidence. The IJ’s
determination—that Toure’s claim of beating lacked credibility—is not overwhelmingly supported
by the evidence, but neither does the evidence presented by Toure compel a conclusion to the
contrary. See El-Moussa, 569 F.3d at 256 (“The adverse credibility determination . . . is conclusive
unless any reasonable trier of fact would be compelled to conclude contrary.” (internal quotations
omitted)). Aside from vague assertions of beatings, in which he does not provide any detail
regarding the beatings themselves or the resultant injuries, Toure has not produced any evidence to
support his claim. Further, Toure’s claim of beating goes to the heart of his application for asylum
because it is being used to enhance his persecution claim. Under the deferential substantial evidence
standard, we find no basis to overturn the IJ’s adverse credibility determination.
C. Persecution Determination
In his second claim of error, Toure argues that the IJ erred in finding that he failed to
establish persecution. In order to obtain asylum, a petitioner “must show that he now possesses a
well-founded fear of future persecution should he return to the country of his birth.” Kaba v.
Mukasey, 546 F.3d 741, 748 (6th Cir. 2008). Alternatively, eligibility for asylum can be met if the
applicant shows that he suffered past persecution. Gilaj, 408 F.3d at 283. This Circuit defines
persecution as “more than a few isolated incidents of verbal harassment or intimidation,
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unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty.”
Id. at 284 (quoting Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998)). While physical
punishment might be a prerequisite, it alone is not always sufficient to find persecution. Id. “[E]ven
a single beating offends one’s sense of civilized governmental conduct, [but] a single beating does
not compel a finding of persecution.” Id. (internal quotations omitted). Further, “evidence of human
rights conditions generally is not sufficient to establish persecution.” Thap v. Mukasey, 544 F.3d
674, 681 (6th Cir. 2008) (citing Daneshvar v. Aschcroft, 355 F.3d 615, 624–25 (6th Cir. 2004)).3
This court has previously held that a petitioner’s claims of harassment connected with his
Muslim faith did not compel a conclusion that he possessed a well-found fear of future persecution.
Kaba, 546 F.3d at 750. We have also upheld an IJ’s finding that a petitioner failed to establish
persecution where the petitioner was detained for several days, beaten and bruised, but lacked
permanent injuries. Gilaj, 408 F.3d at 284 (citing Gjokic v. Ashcroft, 104 F. App’x 501, 503 (6th
Cir. 2004)). Yet petitioners did carry their burden of showing persecution where they were targeted
on numerous occasions due to their political opinions. Id. at 286. In Gilaj, the court reversed the
IJ’s decision that petitioners did not suffer persecution where petitioner’s home had been subject to
numerous searches, petitioners themselves were subject to numerous incidents of physical abuse, and
petitioners received threatening phone calls. Id.
3
The Thap court applied this standard to an application for withholding of removal. While
the persecution showing is higher for withholding of removal, the court in Thap cited to asylum
cases to support its definition of persecution. 544 F.3d at 681.
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In the present case, the IJ found that Toure did not establish past persecution or a well-
founded fear of future persecution. In finding that Toure’s beating claims lacked credibility, the IJ
determined that a three day detention, coupled with interrogations, did not amount to past
persecution. Based on the above survey of case law, this finding comports with our definition of
persecution. See Gilaj, 408 F.3d at 284 (noting that intimidation in the absence of physical harm or
significant deprivation of liberty does not amount to persecution). Thus, substantial evidence exists
to support the IJ’s finding that Toure did not suffer past persecution.
Toure argues that even if he did not establish past persecution, he can still show a well-
founded fear of future persecution under the Supreme Court’s standard outlined in INS v. Cardoza-
Fonseca, 480 U.S. 421 (1987). In that case, the Supreme Court held that a refugee does not have
to prove a more-likely-than-not probability of persecution in order to satisfy the requirement of a
well-founded fear of future persecution. Id. at 450. Even assuming that Toure correctly states his
burden, he has not produced evidence which would compel a finding that he has a well-founded fear
of future persecution. To support his claim, he cites the 2006 Country Report for the Ivory Coast
and notes that persecution continues against the opposition party. Yet at his removal proceeding,
Toure stated that he was not directly involved with any political party. Thus, any claim of
persecution against opposition party members seems more like a general human rights condition and
not something directly tied to Toure. See Daneshvar, 355 F.3d at 624 (“If we were to accept
Petitioner’s theory . . ., we would have to hold that every Iranian citizen has a well-founded fear of
persecution solely by virtue of living in Iran). Further, the 2006 Country Report presents nothing
more than human rights conditions in general, which the court in Thap noted was not sufficient to
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establish persecution. 544 F.3d at 681. Based on the evidence presented by Toure, a reasonable
adjudicator would not be compelled to find that he has established a well-founded fear of future
persecution.
III.
For the foregoing reasons, we DENY Toure’s petition for review.
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