Ahamadou Cheboun v. Eric Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0438n.06
No. 09-3475
FILED
UNITED STATES COURT OF APPEALS
Jul 20, 2010
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
AHAMADOU CHEBOUN, )
)
Petitioner, ) ON PETITION FOR REVIEW
) OF AN ORDER OF THE
v. ) BOARD OF IMMIGRATION
) APPEALS
ERIC H. HOLDER, JR., Attorney General, )
)
Respondent. )
)
BEFORE: SUTTON and McKEAGUE, Circuit Judges; JONKER, District Judge.*
McKeague, Circuit Judge. Ahamadou Cheboun petitions this court to review the denial
of his application for asylum and withholding of removal by the Immigration Judge (“IJ”) and the
Board of Immigration Appeals (“BIA”). For the following reasons, we DISMISS the petition insofar
as it seeks review of the determination that Cheboun’s application for asylum was untimely. We
DENY the remainder of the petition.
I.
Ahamadou Cheboun, a male native of Mauritania, filed an application for asylum and
withholding of removal in April of 2002, having entered this country without valid documentation.
The application claimed that Cheboun entered the United States via New York JFK airport on
*
The Honorable Robert J. Jonker, United States District Judge for the Western District of
Michigan, sitting by designation.
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August 7, 2001, after experiencing torture and persecution at the hands of the Mauritanian
government for his involvement in the Union Democratic Forces political movement. The
application stated that Cheboun feared torture and death if he were to return to Mauritania. An
asylum officer referred Cheboun’s application to an IJ after determining that Cheboun failed to
demonstrate by clear and convincing evidence that he had filed the application within one year of
entry into this country.
A removal proceeding hearing was held before an IJ on August 28, 2006. At the proceeding,
Cheboun sought asylum, withholding of removal, and protection under the Convention Against
Torture. As part of the hearing, Cheboun filed an updated application for asylum and included
supporting articles and reports outlining the poor human rights record in Mauritania. Cheboun
testified at the hearing that he left Mauritania on June 20, 2001, after participating in an illegal
political demonstration a few days earlier. Cheboun stated that as a result of his participation in the
demonstration, he was imprisoned for three days. He also recounted a period of imprisonment in
1996 as a result of his participation in a political opposition movement. During this imprisonment,
Cheboun claimed that he was beaten. In addition, Cheboun stated that he was arrested and
imprisoned in 1998 and was beaten and forced to drink salt water. Cheboun testified that he entered
this country on July 7 or 8, 2001, with the aid of a smuggler who supplied a passport to him in
exchange for $1,500. The smuggler seized the passport from Cheboun after he passed through
customs, and then took Cheboun to a mosque in Brooklyn. Cheboun eventually made his way to
Ohio and was residing there at the time of the hearing.
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After hearing testimony, the IJ issued a written decision denying Cheboun’s request for
asylum, withholding of removal, and protection under the Convention Against Torture and ordered
Cheboun removed to Mauritania. The IJ first determined that Cheboun failed to meet his burden of
demonstrating by clear and convincing evidence that he entered the United States on August 7, 2001,
as was required to meet the one year filing deadline for his application for asylum. Specifically, the
IJ noted that Cheboun failed to produce any travel documents establishing his date of entry, provided
vague answers about the trip, and was unable to recall the airline on which he flew. In addition, the
IJ pointed out that Cheboun testified that he entered the country in either July or August, 2001, but
his asylum application reported the date of entry as August 7, 2001. Thus, the IJ denied Cheboun’s
application for asylum as untimely.
As to his application for withholding of removal, the IJ found that Cheboun was not credible.
The IJ noted material inconsistencies between Cheboun’s testimony and application for withholding
of removal related to his explanation of his imprisonments, entry into the United States, and
biographical information about his spouse and children. In addition, the IJ found that Cheboun’s
demeanor during testimony undermined his credibility because Cheboun laughed at inappropriate
times and spoke rapidly when confronted with inconsistencies. According to the IJ, these
inconsistencies went to the heart of Cheboun’s persecution claim. Further, Cheboun failed to
provide additional corroborating documents to support his persecution claim, which prompted the
IJ to deny his application for withholding of removal. The IJ also denied protection under the
Convention Against Torture for the same reasons stated in the denial of withholding of removal.
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Cheboun appealed the IJ’s decision to the BIA. The BIA dismissed the appeal for the same
reasons stated in the IJ’s decision. Specifically, the BIA found that Cheboun failed to establish that
he filed his application for asylum within one year of entering this country. In addition, the BIA
upheld the IJ’s adverse credibility determination due to material inconsistencies between Cheboun’s
testimony and application for withholding of removal.
Cheboun now petitions this court to review the BIA’s final order. He alleges error in the
adverse credibility determination and seeks a reversal of the BIA’s order denying his application for
asylum and withholding of removal. Cheboun does not challenge the BIA’s decision as it relates to
his claim for protection under the Convention Against Torture. Our analysis is therefore confined
to the denial of his application for asylum and withholding of removal.
II.
We begin by addressing the determination of both the BIA and the IJ that Cheboun failed to
establish timely filing of his application for asylum. An applicant bears the burden of establishing
by clear and convincing evidence that he filed his application for asylum within one year of entering
this country. 8 U.S.C. § 1158(a)(2)(B). The application may still be considered, notwithstanding
the applicant’s failure to satisfy the one year filing requirement, if the applicant demonstrates
changed circumstances which materially affect his eligibility for asylum. Id. at § 1158(a)(2)(D).
When the IJ determines that the applicant failed to demonstrate that he filed the application within
the one year filing period, this court lacks jurisdiction to review the decision, unless the petitioner
raises a constitutional claim or an issue of statutory construction. El-Moussa v. Holder, 569 F.3d
250, 254 (6th Cir. 2009); Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006). This court
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lacks jurisdiction to review claims that raise discretionary or factual questions regarding the
timeliness of a filing. El-Moussa, 569 F.3d at 255.
The IJ in the present case found that Cheboun failed to demonstrate that he filed his
application within one year of entry because Cheboun failed to produce travel documents
establishing when he entered the country and he provided different dates of entry. This finding was
reinforced by the BIA when it dismissed Cheboun’s appeal. In this court, Cheboun has not alleged
constitutional error or error in statutory construction. Instead, he challenges the untimeliness finding
as it relates to the IJ’s adverse credibility determination. Because Cheboun seeks review of factual
determinations only, we lack jurisdiction to consider this portion of the petition. El-Moussa, 569
F.3d at 255. Accordingly, we dismiss Cheboun’s petition insofar as it seeks review of the denial of
his application for asylum as untimely.
III.
Cheboun also seeks review of the IJ’s adverse credibility determination as it relates to his
request for withholding of removal. When the BIA adopts the reasoning of the IJ and adds additional
comments, “we review the IJ’s decision directly while also considering the Board’s additional
analysis.” El-Moussa, 569 F3d. at 255. In reviewing credibility determinations, we apply the
substantial evidence standard, and we will overturn a factual credibility determination only if the
evidence to the contrary compels a different conclusion. Kaba v. Mukasey, 546 F.3d 741, 747 (6th
Cir. 2008).
The REAL ID Act permits immigration judges to base adverse credibility determinations on
any inconsistency or inaccuracy, regardless of whether the inconsistency goes to the heart of the
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applicant’s claim. 8 U.S.C. § 1158(b)(1)(B)(iii); Id. at 749 n.1. However, this new standard applies
only to applications for asylum filed after May 11, 2005. Id. Because Cheboun’s initial application
was filed in 2002, the standard in place prior to the passage of the REAL ID Act applies to his case.
Id. Under this standard, an adverse credibility determination must be founded on inconsistencies that
go to the heart of the applicant’s claim, rather than irrelevant inconsistencies. Ndrecaj v. Mukasey,
522 F.3d 667, 674 (6th Cir. 2008). An inconsistency goes to the heart of the applicant’s claim if it
can be viewed as an attempt to enhance the persecution claims. Id. at 674–75. In making an adverse
credibility determination, the IJ may consider all relevant factors, including an applicant’s demeanor
and the plausibility of his statements. Id. at 674. An adverse credibility determination must be
supported by specific reasons. Kaba, 546 F.3d at 749.
The IJ in this case listed five specific inconsistencies between Cheboun’s testimony and his
application for withholding of removal. The BIA recounted these inconsistencies in its dismissal
of Cheboun’s appeal. Cheboun argues that the variances between his testimony and application are
not inconsistencies and that they do not go to the heart of his persecution claim. We first note that
some of the inconsistencies listed by the IJ involve Cheboun’s failure to provide sufficient detail in
his application for withholding of removal. This court has specifically stated that “the mere failure
of a petitioner to include every detail . . . in the application [] should not be considered fatal to a
petitioner’s request for relief.” Kaba, 546 F.3d at 749. However, the IJ also noted that Cheboun
gave varying accounts of the duration of his imprisonments. In addition, the IJ found that Cheboun’s
testimony about his arrival to the United States was inconsistent with the explanation that he
provided to the Asylum Office. These inconsistencies go to the heart of Cheboun’s persecution
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claim and are supported by substantial evidence. See Ndrecaj, 522 F.3d at 674–75 (stating that an
inconsistency goes to the heart of an applicant’s claim if it can be viewed as enhancing the claim).
The IJ also found Cheboun incredible based on his demeanor while testifying. Cheboun
argues that the IJ improperly relied on speculation and personal beliefs in basing the adverse
credibility determination on his demeanor. He cites our decision in Alexandrov v. Gonzales, 442
F.3d 395 (6th Cir. 2006), to support his argument. In Alexandrov, this court determined that an
adverse credibility determination was not supported by substantial evidence because the
determination was based on the immigration court’s personal belief about how long beatings and
detentions should last. Id. at 408–09. The IJ’s demeanor determination in this case was not based
on personal belief as was the case in Alexandrov. Instead, the IJ in this case noted that Cheboun
appeared “nervous” and “used faster speech patterns when confronted with inconsistencies.” An
adverse credibility determination can be premised on the applicant’s demeanor, and we will not
lightly discard this determination given the IJ’s unique opportunity to observe the applicant.
Abdulahad v. Holder, 581 F.3d 290, 294–95 (6th Cir. 2009). Accordingly, we find no reason to
disturb the IJ’s determination on Cheboun’s demeanor, and we therefore deny Cheboun’s petition
insofar as it seeks review of the adverse credibility determination.
IV.
For the foregoing reasons, we DISMISS Cheboun’s petition to the extent that it seeks review
of the IJ’s determination on the timeliness of his application for asylum. We DENY the remainder
of the petition.
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