Aissata Ba v. Eric Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0488n.06
No. 09-3315 FILED
Aug 09, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
AISSATA BA, )
)
Petitioner, )
) ON PETITION FOR REVIEW OF AN
v. ) ORDER OF T HE BO ARD O F
) IMMIGRATION APPEALS
ERIC H. HOLDER, JR., Attorney General, )
)
Respondent. )
Before: GIBBONS and COOK, Circuit Judges; VAN TATENHOVE, District Judge.*
COOK, Circuit Judge. Aissata Ba, a native and citizen of Mauritania, petitions for review
of the Board of Immigration Appeals (“BIA”)’s order affirming the Immigration Judge (“IJ”)’s
denial of her applications for asylum, withholding of removal, and protection under the Convention
Against Torture (“CAT”).1 We deny Ba’s petition.
I.
A Black Fulani, Ba claims that she suffered persecution on account of her race and political
opinion. At the immigration hearing, Ba testified regarding the harm she and her father allegedly
*
The Honorable Gregory Van Tatenhove, United States District Judge for the Eastern District
of Kentucky, sitting by designation.
1
Ba fails to challenge the denial of CAT relief on appeal.
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Ba v. Holder
suffered. According to Ba, the authorities targeted her father due to his ethnicity, arresting him
several times. After her father’s last arrest, Ba never saw him again.
As a result of her father’s disappearance, Ba participated in two political demonstrations.
In 1995, she spoke at a demonstration seeking justice for those whose relatives had disappeared or
been killed by the government. After the event, the authorities arrested and detained Ba, releasing
her when she signed a document refusing to engage in any further demonstrations. In 1997,
however, Ba attended another demonstration where she again spoke about her father’s
disappearance. When the authorities broke up the rally, they arrested Ba, detaining her until she
signed another document pledging not to participate in future demonstrations. During her
imprisonment, the officers beat Ba on two different occasions.
Following her release, Ba, a cosmetic salesperson, traveled to the United States and Senegal
for business. In 1999, while traveling to Senegal, Mauritanian airport authorities found a newspaper
from the Front for the Liberation of Africans in Mauritania (“FLAM”) in her luggage. According
to Ba, this discovery prompted the authorities to detain and beat her. When the authorities released
Ba, they instructed her to return for a court hearing approximately three months later.
Fearful that the authorities would again imprison her, Ba sought a business visa, and entered
the United States in July 1999. In April 2000, Ba submitted an application for asylum, withholding
of removal, and CAT protection. Thereafter, the Department of Homeland Security served Ba with
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a notice to appear, charging her with removability for overstaying her visa pursuant to 8 U.S.C. §
1227(a)(1)(B).
Finding Ba’s testimony not credible, the IJ denied her requests for asylum and withholding
of removal. The IJ also denied her request for CAT protection, citing the absence of credible
testimony or evidence necessary to meet the burden of proof. Accordingly, the judge ordered Ba
removed to Mauritania. The BIA adopted and affirmed the IJ’s adverse-credibility determination
and noted Ba’s failure to raise any arguments concerning the denial of CAT relief on appeal.
II.
Where the BIA adopts the IJ’s opinion with additional commentary, “that opinion, as
supplemented by the BIA, becomes the basis for review.” Zhao v. Holder, 569 F.3d 238, 246 (6th
Cir. 2009). In immigration proceedings, we review factual findings for substantial evidence. Tapucu
v. Gonzales, 399 F.3d 736, 738 (6th Cir. 2005). Under the deferential substantial-evidence standard,
we deem the IJ’s factual findings, including credibility determinations, “conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
A. Adverse-Credibility Determination
Ba first challenges the adverse-credibility finding. Because Ba’s asylum application preceded
the enactment of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, the IJ’s adverse-
credibility determination “must be supported by specific reasons” and “must be based on issues that
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go to the heart of the applicant’s claim.” Liti v. Gonzales, 411 F.3d 631, 637 (6th Cir. 2005)
(internal quotation marks and citation omitted). Affirmative inconsistencies, as well as omissions,
may form the basis of an adverse-credibility determination. Id. But discrepancies have no bearing
on an applicant’s credibility unless they serve to enhance her claim of persecution. Sarr v. Gonzales,
485 F.3d 354, 360 (6th Cir. 2007).
The IJ chronicled significant discrepancies between Ba’s testimony and her original and
supplemental asylum applications and the asylum officer’s post-interview assessment. Ba insists that
these discrepancies rest on minor inconsistencies that do not go to the heart of her claim and that the
IJ improperly relied on them. Because, contrary to Ba’s contention, several of the discrepancies go
to the heart of Ba’s claim, substantial evidence supports the adverse-credibility determination.
First, Ba testified inconsistently regarding her last arrest in Mauritania. At the hearing, Ba
testified that, while attempting to fly from Mauritania to Senegal in May 1999, airport authorities
detained her after finding FLAM literature in her luggage and, following a month-long detainment,
her mother paid her bail. But Ba’s original asylum application tells a different story, stating only that
authorities interrogated her about a possible connection to FLAM and omitting any mention of
detainment. In her supplemental application, Ba provided a different variation, recalling that airport
authorities detained her for seven days. The asylum officer’s assessment contains yet another
account, this one assigning the arrest’s occurrence to Ba’s return to Mauritania from the United
States in June 1999, recounting a two-day period of police detainment, and indicating that her then-
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husband paid bail to secure her release. These discrepancies go to the heart of Ba’s claim because
this event purportedly was the catalyst for her departure from Mauritania and involved possible
persecution, perhaps due to an imputed political opinion. Moreover, Ba’s hearing testimony, which
described a month-long detainment, could be viewed as an attempt to enhance her claim of
persecution.
Ba’s descriptions of her other alleged arrests contain inconsistencies as well. Ba’s original
asylum application claimed that authorities imprisoned her after she attended a demonstration in
1991; but she failed to mention this incident at all in her testimony before the IJ. Moreover, although
Ba testified that police arrested her in front of the Justice Building during a political demonstration
in November 1997 and then held her for nine days, the asylum officer’s assessment related that
police arrested her at a private residence and detained her for three days.
Inconsistencies also undermine Ba’s descriptions of the harm that her father endured. For
example, at the immigration hearing, Ba stated that authorities arrested her father in 1984 and
detained him for two days, but she omitted this event from her original asylum application and
asylum interview. And although Ba testified that authorities arrested her father again in September
1989, her original and supplemental asylum applications claimed that white soldiers beat her parents
in April 1989. Furthermore, Ba testified that authorities arrested her father in November 1991, after
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Ba v. Holder
which she never saw him again. Her original asylum application, however, omitted any mention of
his disappearance.2
Citing Singh v. Gonzales, 403 F.3d 1081 (9th Cir. 2005), Ba argues that the IJ and BIA
improperly relied on the asylum interview notes when deciding her credibility. But in Singh, the
Ninth Circuit held that the Assessment to Refer could not, “standing alone, [constitute] substantial
record evidence supporting the IJ’s adverse credibility ground.” Id. Here, the IJ’s credibility
assessment included Ba’s original and supplemental asylum applications, as well as her hearing
testimony. Thus, the asylum notes comprised just one of four varying accounts supplied by Ba and
relied upon by the IJ.
Ba’s inability to explain her inconsistent descriptions of the harm she and her father suffered
convinces us that a reasonable adjudicator would not be compelled to find her credible. This lack
of credibility causes her claims for asylum and withholding of removal to fail.
B. Due Process Claim
Ba further alleges a denial of procedural due process, assigning error to the BIA’s reliance
on a single discrepancy identified by the IJ when affirming the adverse-credibility determination.
The BIA cited one discrepancy as an example of Ba’s inconsistent testimony, and its failure to
2
Ba mentioned her father’s disappearance in her asylum interview and supplemental
application, but provided a different date: February 1991.
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reiterate the other inconsistencies identified by the IJ does not indicate a failure to consider them.
Scorteanu v. INS, 339 F.3d 407, 412 (6th Cir. 2003) (“What is required is merely that [the BIA]
consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court
to perceive that it has heard and thought and not merely reacted.”) (citation and internal quotation
marks omitted); Mansare v. Holder, No. 08-4103, 2010 WL 2617971, at *3 (6th Cir. July 1, 2010)
(BIA opinion that noted numerous discrepancies, but discussed only a few, “reflected a consideration
of the record and sufficiently addressed the pertinent issues to facilitate our review”). Indeed, the
BIA explicitly adopted and affirmed the IJ’s decision, which thoroughly catalogued those
inconsistencies.
C. Failure to Exhaust
Ba raises two additional claims: (1) the IJ erred in failing to consider evidence of female
genital mutilation as a basis for a well-founded fear of future persecution and (2) changes in country
conditions necessitate a remand. Because Ba neglected to raise these arguments before the BIA,
however, we lack jurisdiction to consider them. Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir.
2004) (holding that “only claims properly presented to the BIA and considered on their merits can
be reviewed by this court”).
III.
We deny Ba’s petition.
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