Ibrahima Balde v. Alberto Gonzales , 278 F. App'x 707 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1390
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Ibrahima Mamadou Balde; *
Fatoumata Dalanda Diallo, *
*
Petitioners, *
* Petition for Review of
v. * an Order of the Board
* of Immigration Appeals.
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Michael B. Mukasey, *
Attorney General of the United States * [UNPUBLISHED]
*
Respondent. *
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Submitted: May 20, 2008
Filed: May 23, 2008
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Before BYE, SMITH, and BENTON, Circuit Judges.
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PER CURIAM.
Ibrahima Mamadou Balde (Balde) and Fatoumata Dalanda Diallo (Diallo)
petition for review of an order of the Board of Immigration Appeals (BIA), affirming
an Immigration Judge’s (IJ’s) denial of asylum, withholding of removal, and relief
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Michael B. Mukasey has been appointed to serve as Attorney General of the
United States, and is substituted as respondent pursuant to Federal Rule of Appellate
Procedure 43(c).
under the Convention Against Torture (CAT).2 Balde also contests the BIA’s finding
that he filed a frivolous asylum application and Diallo challenges the BIA’s denial of
her motion to remand. We deny the petition.
Balde was found not credible and was denied asylum and related relief. Upon
careful review, we conclude that the adverse credibility determination is supported by
specific, cogent reasons for disbelief. See Eta-Ndu v. Gonzales, 411 F.3d 977, 982
(8th Cir. 2005) (standard of review). Balde provided untruthful testimony and he
submitted documents which were determined to be fraudulent upon investigation by
the former Immigration and Naturalization Service. See Bropleh v. Gonzales, 428
F.3d 772, 777 (8th Cir. 2005) (fraudulent document submitted to corroborate key
element of alien’s asylum application can support adverse credibility determination);
Barreto-Claro v. U.S. Att’y Gen., 275 F.3d 1334, 1336-39 (11th Cir. 2001)
(undisclosed information, which bore upon whether alien had resettled so as to no
longer be in flight from persecution, was material to asylum application); see also Lin
v. U.S. Dep’t of Justice, 459 F.3d 255, 271 (2d Cir. 2006) (describing factors courts
use to assess reliability of investigative report). The adverse credibility finding is
dispositive of Balde’s withholding-of-removal claim. See Zine v. Mukasey, 517 F.3d
535, 541 (8th Cir. 2008) (when asylum, withholding-of-removal, and CAT claims are
based on same discredited testimony, adverse credibility finding is fatal to all three
claims). We also find no merit to Balde’s assertions that the IJ erred by drawing a
negative inference from his attempt to withdraw his asylum application and by
considering withdrawn removability charges.
Diallo too was found not credible and was denied withholding of removal and
CAT relief. See id. We conclude once again that the adverse credibility finding is
2
Diallo does not challenge the denial of asylum, and Balde’s challenge to the
denial of CAT relief is not properly before us as he failed to raise it in his appeal to
the BIA, see Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir. 2004) (appeals court lacks
jurisdiction to review issue not presented to BIA).
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supported by specific, cogent reasons for disblief. See Eta-Ndu, 411 F.3d at 982.
Diallo submitted suspect documentation of her identity, she failed to provide other
credible documentary evidence to establish her identity, and her testimony was
inconsistent with other record documents. See Esaka v. Ashcroft, 397 F.3d 1105,
1110 (8th Cir. 2005) (adverse credibility determination can be based on lack of
corroborating evidence if there are also inconsistencies in testimony, contradictory
evidence, or inherently improbable testimony). Although Diallo offered an
explanation for the inconsistency, we cannot say any reasonable factfinder would be
persuaded. Cf. Krouchevski v. Ashcroft, 344 F.3d 670, 673 (7th Cir. 2003) (if
petitioner’s explanations and IJ’s adverse inferences from discrepancies both appear
valid, reviewing court should not supersede IJ’s credibility finding).
Diallo suggests that consolidating her case with Balde’s violated her due
process rights. We disagree because, among other reasons, Diallo was not denied a
full and fair opportunity to present her claims and has failed to show how the outcome
in her case would have been different absent consolidation. See Burger v. Gonzales,
498 F.3d 131, 134 (2d Cir. 2007) (to establish violation of due process, alien must
show she was denied full and fair opportunity to present claims, or that IJ or BIA
otherwise deprived her of fundamental fairness); Lopez v. Heinauer, 332 F.3d 507,
512-13 (8th Cir. 2003) (alien must demonstrate both fundamental procedural error and
that error resulted in prejudice).
The BIA’s finding that Balde filed a frivolous asylum application is supported
by substantial evidence as Balde was notified of the consequences of filing a frivolous
application, yet he submitted fraudulent documents in support of his application. See
Aziz v. Gonzales, 478 F.3d 854, 857 (8th Cir. 2007) (substantial evidence supported
frivolousness determination where alien admittedly lied to IJ and submitted fraudulent
supporting evidence); Ignatova v. Gonzales, 430 F.3d 1209, 1211, 1214 (8th Cir.
2005) (alien was notified of consequences of filing frivolous application, but
nonetheless submitted fraudulent document). Finally, we conclude that the BIA did
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not abuse its discretion in denying Diallo’s motion for a remand given that the
marriage-related documentation Diallo sought to present would not have altered the
BIA’s outcome in light of the other bases for the adverse credibility finding. See
Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (abuse-of-discretion standard
of review).
Accordingly we deny the petition.
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