Abdoulaye Sacko v. Eric Holder, Jr. , 510 F. App'x 409 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0023n.06
No. 12-3226
FILED
UNITED STATES COURT OF APPEALS
Jan 07, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
ABDOULAYE SACKO, )
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., Attorney General, ) APPEALS
)
Respondent. )
BEFORE: COLE and DONALD, Circuit Judges; RUSSELL, District Judge.*
PER CURIAM. Abdoulaye Sacko 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).
Sacko is a native and citizen of Mauritania. He claims to have entered the United States on
September 12, 2000. In December 2000, Sacko filed an application for asylum, withholding of
removal, and relief under the CAT, alleging that Mauritanian authorities had arrested and imprisoned
him, used him as slave labor, and forcibly deported him to Senegal. In January 2010, Sacko filed
a supplemental application, making similar allegations. The IJ denied Sacko’s application,
concluding that he failed to demonstrate that his asylum application was timely, he did not testify
credibly, and he failed to demonstrate entitlement to relief. The BIA affirmed the IJ’s decision.
*
The Honorable Thomas B. Russell, United States Senior District Judge for the Western
District of Kentucky, sitting by designation.
No. 12-3226
Sacko v. Holder
On appeal, Sacko argues that his asylum application was timely, that his testimony was
credible, and that he is entitled to asylum and withholding of removal. Where, as here, the BIA does
not summarily affirm or adopt the IJ’s reasoning and provides an explanation for its decision, we
review the BIA’s decision as the final agency determination. Ilic-Lee v. Mukasey, 507 F.3d 1044,
1047 (6th Cir. 2007). We review legal conclusions de novo and factual findings, including
credibility determinations, for substantial evidence. Khozhaynova v. Holder, 641 F.3d 187, 191 (6th
Cir. 2011). Under the substantial evidence standard, we will uphold administrative findings of fact
unless “any reasonable adjudicator would be compelled to conclude to the contrary.” Bi Xia Qu v.
Holder, 618 F.3d 602, 605-06 (6th Cir. 2010) (quoting 8 U.S.C. § 1252(b)(4)(B)).
We lack jurisdiction to review the denial of Sacko’s asylum application as untimely because
he does not raise any legal or constitutional challenge to the BIA’s decision on that issue. See Fang
Huang v. Mukasey, 523 F.3d 640, 650-51 (6th Cir. 2008).
To qualify for withholding of removal, an applicant must demonstrate that it is more likely
than not that, if returned to the country of removal, his life or freedom would be threatened on
account of his race, religion, nationality, membership in a particular social group, or political
opinion. Vincent v. Holder, 632 F.3d 351, 354 (6th Cir. 2011). If an applicant demonstrates that he
has suffered past persecution in the country of removal on account of a protected ground, we employ
a rebuttable presumption that the applicant’s life or freedom would be threatened in the future. Id.
at 354-55.
The IJ’s adverse credibility determination was supported by substantial evidence, see
Khozhaynova, 641 F.3d at 193, and the determination was based on issues that go to the heart of
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No. 12-3226
Sacko v. Holder
Sacko’s claim of persecution, see Singh v. Ashcroft, 398 F.3d 396, 402 (6th Cir. 2005). In his second
asylum application and during his testimony, Sacko asserted that, in 1989, Mauritanian authorities
arrested him and his family and detained them for seven months. In his initial asylum application,
however, and in his asylum interview, which the IJ and BIA properly considered given the asylum
officer’s detailed assessment that contained questions and answers from the interview, see Koulibaly
v. Mukasey, 541 F.3d 613, 620-21 (6th Cir. 2008), Sacko asserted that the detention lasted only two
weeks. Sacko also testified that he was not beaten during his arrest and detention, although he
alleged in his second asylum application that members of the Mauritanian military beat him with the
bottom part of a gun. He further claimed during his asylum interview that he was beaten with
batons. Finally, Sacko’s asylum applications and his testimony were inconsistent concerning who
transported him and his family to Senegal after they were released from their detention and how they
entered into that country. Sacko failed to provide an adequate explanation for the discrepancies in
his statements and applications for relief.
Given the proper adverse credibility determination and the lack of other evidence supporting
Sacko’s claims that he suffered past persecution in Mauritania and that his life or freedom would be
threatened if removed to Mauritania, he did not establish that he is entitled to withholding of
removal. See El-Moussa v. Holder, 569 F.3d 250, 257 (6th Cir. 2009). Sacko waived any challenge
to the denial of relief under the CAT by failing to raise that issue on appeal. See Shkabari v.
Gonzales, 427 F.3d 324, 327 n.1 (6th Cir. 2005).
Accordingly, we dismiss Sacko’s petition for review insofar as he seeks review of the denial
of his asylum application as untimely, and we deny the petition in all other respects.
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