Oumar Ba v. Eric Holder, Jr. ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0187n.06
No. 14-3283
FILED
UNITED STATES COURT OF APPEALS Mar 10, 2015
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
OUMAR BA, )
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., Attorney General, ) APPEALS
)
Respondent. )
BEFORE: SILER, BATCHELDER, and ROGERS, Circuit Judges.
PER CURIAM. Oumar Ba petitions for review of an order of the Board of Immigration
Appeals (BIA) that affirmed an immigration judge’s (IJ) denial of his application for asylum,
withholding of removal, and relief under the Convention Against Torture (CAT).
Ba is a native and citizen of Mauritania. He entered the United States in June 2000. In
December 2000, Ba filed an application for asylum, withholding of removal, and relief under the
CAT, alleging that he would be persecuted or tortured if returned to Mauritania because of his
race and his father’s membership in the African Liberation Forces of Mauritania. The IJ denied
the application, concluding that the request for asylum was untimely, that Ba did not testify
credibly, and that he failed to establish entitlement to relief. The BIA affirmed the IJ’s
conclusions that Ba did not testify credibly and that he failed to establish entitlement to relief.
On appeal, Ba argues that the BIA committed legal error in determining that he did not
testify credibly by failing to discuss the explanation that he gave for discrepancies in his
No. 14-3283
Ba v. Holder
testimony, asylum interview, and application for relief. Ba also argues that his asylum
application was timely and that the BIA erred by concluding that he did not testify credibly and
that he failed to establish entitlement to relief. Because the BIA issued a separate opinion, rather
than summarily affirming the IJ’s decision, we review the BIA’s opinion as the final agency
determination. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). We review legal
conclusions de novo and factual findings and credibility determinations for substantial evidence.
Khozhaynova v. Holder, 641 F.3d 187, 191 (6th Cir. 2011). Under the substantial evidence
standard, administrative findings of fact are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary. Id.
Ba first argues that the BIA committed legal error in determining that he did not testify
credibly by failing to discuss the explanation that he gave for the discrepancies in his testimony,
asylum interview, and application for relief. The record reflects, however, that the BIA properly
identified the controlling law and rejected Ba’s explanation that the discrepancies were the result
of memory problems and misunderstandings caused by a language barrier.
Ba also argues that the BIA erred by concluding that he did not testify credibly and that
he failed to establish entitlement to relief. Because Ba’s application for relief was filed before
May 11, 2005, the adverse credibility determination must be based on issues that go to the heart
of his claim of persecution. See El-Moussa v. Holder, 569 F.3d 250, 256 (6th Cir. 2009). To be
eligible for asylum, an applicant must establish that he suffered past persecution or has a well-
founded fear of future persecution on account of one of several protected grounds.
Abdurakhmanov v. Holder, 735 F.3d 341, 345 (6th Cir. 2012).
The discrepancies identified by the BIA in Ba’s testimony, asylum interview, and
application for relief constitute substantial evidence supporting the adverse credibility
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No. 14-3283
Ba v. Holder
determination. In his asylum interview, Ba stated that members of the Mauritanian military
broke his right thumb when he was taken into custody, but Ba testified that he suffered injuries
only to his face and back and that his thumb was not broken. Similarly, during his asylum
interview, Ba stated that he entered the United States using a Malian passport bearing the name
Abdou Ndiaye, which conflicted with his testimony that he used a Gambian passport bearing the
name Tierno Tunkara. There were also discrepancies concerning whether Ba was physically
assaulted while being transported to prison and whether he was tied up and blindfolded while in
prison. The discrepancies identified by the BIA go to the heart of Ba’s claim of persecution, and
a reasonable adjudicator would not be compelled to accept Ba’s explanation that the
discrepancies resulted from memory problems and misunderstandings caused by a language
barrier.
Given the adverse credibility determination and the lack of other evidence supporting
Ba’s asylum application, substantial evidence supports the BIA’s denial of the application. And
because the denial of Ba’s asylum application is supported by substantial evidence, it follows
that substantial evidence also supports the BIA’s determination that Ba did not satisfy the higher
standards for withholding of removal and relief under the CAT. See Ceraj v. Mukasey, 511 F.3d
583, 594 (6th Cir. 2007).
Accordingly, we deny Ba’s petition for review.
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