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Diallo v. Mukasey: IMMIGRATION - no jurisdiction regarding untimeliness decision; deference regarding credibility; changed conditions

1Michael B. Mukasey has been appointed to serve as Attorney General and is
substituted as respondent pursuant to Rule 43(c)(2) of the Federal Rules of Appellate
United States Court of Appeals
No. 07-1237
Fatoumata Jolloh Diallo, *
Petitioner, *
* Petition for Review of an
v. * Order of the Board
* of Immigration Appeals.
Michael B. Mukasey, United *
States Attorney General,1 **
Respondent. *
Submitted: November 12, 2007
Filed: November 19, 2007
Before RILEY, BOWMAN and SMITH, Circuit Judges.
RILEY, Circuit Judge.
Fatoumata Jolloh Diallo (Diallo) petitions for review of an order of the Board
of Immigration Appeals (BIA) denying her application for asylum, withholding of
removal, and protection under the United Nations Convention Against Torture (CAT).
In support of her petition, Diallo argues the BIA erred in: (1) upholding the
Immigration Judges (IJ) adverse credibility determination and (2) upholding the IJs
finding that changed country conditions precluded a determination Diallo would face
persecution if removed to her native country of Sierra Leone. We dismiss Diallos
petition as it relates to her asylum claim, and deny the remainder of the petition.
After the Department of Homeland Security (DHS) commenced removal
proceedings against Diallo, she conceded removability, and sought asylum,
withholding of removal, and CAT relief. The IJ designated Sierra Leone as her
country of removal. Diallo testified she was persecuted in Sierra Leone. Specifically,
Diallo stated she and her family were active in a disfavored political party and, based
upon this political involvement, her father and two brothers were killed in 1995, and
her husband was killed in 1998. Diallo also claimed she was raped and beaten by the
men who killed her husband, and she was later arrested and falsely charged with
arson. Diallo further testified she fled to Guinea after her release from prison, and
eventually came to the United States in early 2002.
The IJ considered Diallos application and found her lacking in credibility. The
IJ noted [o]ne of the major issues in this case is [Diallos] identity in addition to her
citizenship and nationality. The IJ based this finding on numerous factors. First, a
government investigation determined the birth certificate Diallo produced was a
forgery. Second, Diallo also presented an identity card that the IJ stated appeared to
have been altered to coincide with the information on the forged birth certificate.
Third, the IJ found Diallos testimony regarding her travels and arrival in the United
States was general, vague, and meager[.] Finally, the IJ reviewed records from
Greyhound Bus Line, upon which Diallo claimed to have traveled, and noted these
records contradicted Diallos accounts of her travel dates and whereabouts. Based
upon these factors, the IJ not only made an adverse credibility finding, but also found
Diallo had failed to prove her time, place and manner of entry into the United States
[and] . . . [a]ccordingly . . . failed to show she filed for asylum within one year of
her arrival into the United States. The IJ thus denied Diallos asylum claim due to
the untimeliness of the asylum application.
The IJ also denied Diallos requests for withholding of removal and CAT relief,
based upon the adverse credibility determination. Finally, the IJ found, even if Diallo
had credibly established past persecution, circumstances had materially changed in
Sierra Leone, and the human rights situation has vastly improved since Sierra
Leones devastating civil war was officially declared over in January 2002.
Accordingly, the IJ determined Diallo could not establish she would more likely than
not face persecution or torture if returned to Sierra Leone, thus precluding withholding
of removal or CAT relief. Diallo appealed this decision to the BIA, which affirmed
the IJs decision on all counts.
Where [t]he BIAs decision is the final decision of [the] agency . . . it is the
subject of our review. Salkeld v. Gonzales, 420 F.3d 804, 808 (8th Cir. 2005). To
the extent, however, that the BIA adopted the findings or the reasoning of the IJ, we
also review the IJs decision as part of the final agency action. Id. (citation omitted).
When we review a BIA determination regarding eligibility for asylum, the BIAs
findings are reviewed under a substantial evidence standard. See Zheng v. Gonzales,
415 F.3d 955, 959 (8th Cir. 2005). The BIAs findings regarding eligibility for
withholding of removal or CAT relief are also reviewed for substantial evidence. See
Mouawad v. Gonzales, 485 F.3d 405, 413 (8th Cir. 2007). This is an extremely
deferential standard of review[.] Salkeld, 420 F.3d at 809. Under the substantial
evidence standard, the agencys findings of fact must be upheld unless the alien
demonstrates that the evidence he presented not only supports a contrary conclusion
but compels it. Sultani v. Gonzales, 455 F.3d 878, 881 (8th Cir. 2006) (citation
omitted) (emphasis added). This court defers to an immigration judges credibility
finding where the finding is supported by a specific, cogent reason for disbelief.
Perinpanathan v. INS, 310 F.3d 594, 597 (8th Cir. 2002) (citations and internal
quotation marks omitted). [B]ecause the immigration judge is in the best position to
evaluate an aliens testimony, his or her credibility determinations are to be given
much weight. Id. (citation omitted).
A. Asylum Review - Jurisdiction
Diallo was required to demonstrate[] by clear and convincing evidence that the
[asylum] application ha[d] been filed within 1 year after the date of [her] arrival in the
United States. 8 U.S.C. 1158(a)(2)(B). This court lacks jurisdiction to review the
BIAs finding that Diallos asylum application was not filed within one year of her
arrival in the United States. See 8 U.S.C. 1158(a)(3); see also Bejet Viali Al-Jojo
v. Gonzales, 424 F.3d 823, 826-27 (8th Cir. 2005).
To the extent Diallos argument could be characterized as a procedural due
process claim, this court has left open the possibility that such claims could qualify
as an exception to the jurisdictional bar in 1158(a)(3). See Somakoko v. Gonzales,
399 F.3d 882, 883 (8th Cir. 2005). However, Diallo has not asserted a procedural due
process claim. Additionally, for the reasons outlined in the following section, if
characterized as a due process claim, Diallos asylum arguments are still without
merit. As in Somakoko, even if Diallos claims sounded in due process, it would be
unnecessary to decide the troubling question whether relief from an untimeliness
ruling may ever be granted on procedural due process grounds. Id.
We therefore dismiss for lack of jurisdiction Diallos petition for review of the
BIAs denial of her asylum petition.
B. Credibility Determination
Diallo cites Kourski v. Ashcroft, 355 F.3d 1038 (7th Cir. 2004) for the
proposition that a falsified document, standing alone, cannot support an IJs adverse
credibility finding where there is no reason to believe the alien knew the document
2Diallo claims, Oddly, the [IJ] . . . discounted the identity card because the
information therein matched the information found on Ms. Diallos birth certificate.
There is nothing odd about this determination. Because the identity card appeared
altered, and matched the information on a forged birth certificate, it was not
unreasonable for the IJ to conclude both documents were false.
was false, and no other grounds upon which to base the adverse credibility finding.
Although Kourski stands for this proposition, see id. at 1040, Diallos reliance on the
case is unavailing. With or without knowledge of the falsity of a counterfeit
identification document, the applicant must still confront the basic burden of
establishing her identity and nationality, which are legitimately in question. In
Diallos case, the IJ did not rely solely on the falsified certificate. Rather, the IJ noted
Diallo produced an identity card that appeared to have been altered to coincide with
the information on the forged birth certificate.2 The IJ further found Diallos
testimony general, vague, and meager[,] and found records from Greyhound Bus
Line, upon which Diallo claimed to have traveled, contradicted Diallos accounts of
her travel dates and whereabouts. Moreover, the record supports the IJs
determination that Diallos testimony was vague. Diallo provided little explanation
regarding these matters, or the disparity between her claimed travel dates and the bus
line records. These evidentiary inadequacies also raise doubts regarding Diallos date,
place and manner of entry into the United States. These findings distinguish Diallos
case from Kourski, and provide substantial evidence supporting the adverse credibility
determination. Although these aspects of her testimony do not necessarily compel an
adverse credibility determination, we were not present to evaluate Diallos demeanor
3Diallo also contends the forged birth certificate only related to her birth, age
and identity, and thus did not go to the heart of her asylum claim. For support, she
points to the Ninth Circuits holding in Chen v. INS, 266 F.3d 1094, 1100 (9th Cir.
2001), vacated on other grounds by 537 U.S. 1016 (2002) , on remand to 326 F.3d
1316 (9th Cir. 2003). Chen holds that documents relating only to issues such as
identity and date of birth do not enhance a claim of persecution, and therefore
discrepancies in such documents cannot form the basis for an adverse credibility
determination. Id. We need not adopt or completely reject this proposition.
However, Diallos proof of her identity and nationality are fundamental, and when
called into question, Diallo must present adequate explanation or risk a lack of
credibility finding. Again, Diallo fails to recognize that the fake documents in her
case comprised only part of the basis for the IJs adverse credibility determination.
The false documents, combined with vague testimony and discrepancies in Diallos
travel records, undercut not only her identity and her nationality claim, but also the
alleged date she entered the country, as well as her overall credibility.
and great weight must be given to the IJs determination.3 We therefore uphold the
adverse credibility determination.
C. Changed Country Conditions
Even if the credibility determination were in error, substantial evidence
supports the BIAs conclusion that changed country conditions preclude a finding of
future persecution or torture if Diallo is returned to Sierra Leone. To qualify for
withholding of removal, an alien must show a clear probability [of persecution] in
the proposed country of removal on account of race, religion, nationality, membership
in a particular social group, or political opinion. See Mouawad, 485 F.3d at 411
(citations and internal quotation marks omitted) (emphasis added). To obtain CAT
relief, an alien must show he or she is more likely than not to suffer torture if
returned to the designated country of removal. Id. at 413. Although Diallo points to
aspects of the country reports that indicate her life in Sierra Leone will likely be
difficult, many aspects of the country reports support the BIAs determination the
circumstances in Sierra Leone have significantly improved in the past few years. We
will not substitute our judgment for that of the BIA. Rather, the BIAs determinations
must be upheld unless the alien demonstrates that the evidence [s]he presented not
only supports a contrary conclusion but compels it. Sultani, 455 F.3d at 881 (citation
omitted) (emphasis added). The record does not compel a contrary conclusion.
The petition for review is dismissed for lack of jurisdiction as to the asylum
claim and denied as to withholding of removal and CAT relief.


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