Aida Mbaye v. Eric Holder, Jr. ( 2010 )

                               File Name: 10a0164n.06
                                               No. 09-3396
                              UNITED STATES COURT OF APPEALS                            Mar 15, 2010
                                   FOR THE SIXTH CIRCUIT                          LEONARD GREEN, Clerk
    AIDA MBAYE,                                           )
           Petitioner,                                    )
    v.                                                    ) ON PETITION FOR REVIEW FROM
                                                          ) AN ORDER OF THE BOARD OF
    ERIC H. HOLDER, Jr., United States                    ) IMMIGRATION APPEALS
    Attorney General,                                     )
           Respondent.                                    )
    Before: GIBBONS, SUTTON, and WHITE, Circuit Judges.
           JULIA SMITH GIBBONS, Circuit Judge. Petitioner Aida Mbaye seeks review from a
    March 10, 2009, decision of the Board of Immigration Appeals (“BIA”) denying a motion to reopen
    her petition for asylum, withholding of removal, and protection under the Convention Against
    Torture (“CAT”), based on new evidence and to submit a second asylum application based on
    changed circumstances in Mauritania. For the reasons that follow, we deny the petition for review.
           On December 4, 2000, Mbaye filed an application for asylum, withholding of removal, and
    protection under the CAT, on the grounds that she feared persecution if returned to Mauritania due
    to her Wolof ethnicity and her participation in the local women’s group Boolo. She testified that she
    had lived and farmed in the village of Keur Madické in the Senegal River Valley until fleeing to
    Senegal on May 1, 2000, after white Moors threatened her life and took her land. She maintains that
    on October 1, 2000, she entered the United States by boat, without inspection, and with the help of
    a people smuggler.
           In her original asylum application and testimony before the Immigration Judge (“IJ”), Mbaye
    claimed a well-founded fear of persecution if returned to Mauritania for the following reasons. She
    testified that she had suffered from the historic discrimination of black Mauritanians by the white
    Moor population. Although not included in her asylum application, she testified that both her father
    and brother were killed because of this ethnic tension.1 She stated that both were killed in 1998: her
    father was burned in his home after he and family members got into a fight with white Moors; her
    brother was stabbed by white Moors during a separate altercation. Mbaye stated that, following their
    deaths, she lived with her son and mother on the family farm until a white Moor claimed ownership
    of their land in 2000After Mbaye contested the claim, the white Moor and several bodyguards beat
    Mbaye and her son. The Moor then returned with policemen twice in April 2000, at which point
    Mbaye was detained and raped before being taken to a military work camp for three weeks. She
    maintained that when she was released on April 25, 2000, authorities threatened to kill her if they
    saw her again. When she nevertheless returned to Keur Madické, her son and mother had left for
    another village; they have since relocated to Senegal. She hid at a neighbor’s home until leaving for
    Senegal on May 1, 2000. Mbaye testified that she then stayed in Senegal for four months until a
    smuggler arranged for her to go to the United States by ship. She allegedly arrived in Baltimore,
    Maryland, on October 1, 2000, and, after slipping off the boat dressed in some sort of uniform,
    traveled to Cincinnati. Mbaye also claimed that she feared persecution because of her involvement
             In her successive asylum application, submitted with her motion to reopen, Mbaye claimed
    that her brother and father were harassed only after, and because, she joined the local women’s group
    Boolo and that it was because of her activities with that group that she feared persecution if returned
    to Mauritania.
    with Boolo, a women’s group in her village that promoted the education of women. She claimed
    that she joined Boolo in 1998 and helped to teach girls how to read. In testimony, Mbaye stated that
    the white Moors did not like the organization but did not detail any specific action taken against the
    organization or against her because of her membership in it. In her second asylum application,
    submitted with the motion to reopen, she asserted for the first time that the Moors wanted to
    eliminate her due to her association with this group and that the intimidation of her family began
    after and because of her activities with Boolo. Her description of Boolo as a group dedicated to
    women’s literacy in her asylum applications and testimony was in some tension with the
    representation of the group as a pro-democracy group in Mbaye’s brief to this court.
           Mbaye supplemented her original application with many articles and documents—most dated
    1989–1994—recounting the persecution of black Mauritanians by white Moors and describing
    forcible expulsions from and land expropriation in the Senegal River Valley beginning in 1989 and
    culminating in massacres of black Mauritanians in 1990–1991. That such atrocities took place at
    that time and location is undisputed. However, Mbaye did not provide evidence that such activity
    took place in the late 1990s or in 2000, when she claims that she was dispossessed of her property
    and her family members killed. Indeed, country reports submitted by both parties suggest that,
    although there are ongoing human rights abuses in Mauritania, claims on land and political
    disappearances have largely ceased since the mid-1990s. The reports further document that those
    black Mauritanians expelled during 1989–1991 have been returning to Mauritania since 1995.2
           At a preliminary hearing, Mbaye initially conceded removability but refused to designate a
             Mbaye submitted other articles and documents, dating from the late 1990s and 2000s, that
    describe the ongoing practice of slavery in Mauritania. While those articles may be accurate, they
    are not relevant to Mbaye’s asylum claim because she never asserted that she was held in slavery or
    feared that she would be upon return.
    country of removal. The IJ designated Mauritania as the country of removal, but postponed the
    proceedings because Mbaye appeared without any identity documentation. As proof of her alleged
    date of entry, Mbaye later submitted affidavits from two individuals who swore that Mbaye arrived
    in Cincinnati, Ohio, in October 2000 and moved to Detroit, Michigan, in December 2001. The two
    individuals were unavailable to testify before the IJ, and their affidavits could not verify Mbaye’s
    whereabouts before her arrival in Cincinnati in October 2000.
            At the final hearing, at which Mbaye and one witness testified, the IJ denied her application
    in its entirety. He first found that Mbaye failed to establish her identity, her nationality, or the time,
    place, and manner of her entry into the United States. Consequently, she had not demonstrated that
    her application for asylum was timely. He noted that the identity documents that she provided for
    the first time two weeks before the June 2, 2006, hearing—and that she argued she had when she
    arrived in the United States—were “somewhat questionable on the[ir] face.” Mbaye produced a
    certificate of nationality, which was based in part on a residency card for the city of Nouakchott,
    where Mbaye testified that she had never lived, and on which Nouakchott is misspelled at least once.
    A national identity card entered into the record also indicated residency in Nouakchott, and the
    uncertified birth certificate provided was issued nineteen years after Mbaye’s birth. The IJ also
    found that the witness who testified that he had known Mbaye when she was in Senegal in 2000 was
    not credible because his testimony was internally inconsistent and irrelevant because he could not
    prove that he was in Senegal in 2000.
            However, despite his finding that Mbaye did not meet the threshold requirements of
    eligibility for asylum, the IJ addressed the merits of her case. In doing so, he found that Mbaye was
    not credible. He noted that she offered no corroborating evidence of her experience in Mauritania,
    even though evidence was procurable from Senegal or even Mauritania. He also took note of several
    inconsistencies that went to the heart of Mbaye’s asylum claim, including, inter alia: (1) her
    application stated that she had never been married, but she testified that she divorced in 1992(2) at
    an asylum interview in April 2003, Mbaye stated that her mother lived in Senegal, but during
    testimony in 2006, she said that her mother had gone to Senegal for the first time in April 2005; (3)
    Mbaye testified that the well-documented disturbances in Mauritania in 1989–1990 did not affect
    her village, despite the fact that expulsions and massacres of entire black Mauritanian villages, like
    Mbaye’s, in the Senegal River Valley were wide-spread at that time; (4) she was unable to give
    discrete examples of discrimination against the Wolof or herself by white Moors; (5) she testified
    inconsistently about whether her brother or her father was killed first and was very vague about by
    whom and why they were killed; (6) her description of the land dispute placed it as happening in
    2000, after other Mauritanians who had been dispossessed of their land in the early 1990s had
    returned, and thus was in conflict with the history of Mauritania; and, (7) Mbaye testified first that
    she spoke with her mother in Senegal by phone weekly and had spoken with her on the previous day,
    and then stated that she could not call Senegal when asked why she could not obtain corroboration
    from her mother. Given the discrepancies between Mbaye’s testimony and applications, the
    questions regarding her identity documentation, the propensity of Senegalese citizens to apply for
    asylum as Mauritanians, and the incongruities between Mbaye’s personal narrative and the history
    of Mauritania, the IJ denied Mbaye’s application and issued an order of removal on June 2, 2006.
    Mbaye timely appealed.
           The BIA affirmed on June 13, 2008. The BIA found that Mbaye failed to demonstrate by
    clear and convincing evidence that she had filed within one year of arriving in the United States
    under 8 U.S.C. § 1158(a)(2)(B) and that she failed to establish an exception to that time bar as
    permitted by 8 U.S.C. § 1158(a)(2)(D). Citing the inconsistencies in Mbaye’s testimony, the
    evolution of her factual claims over time, and the questions regarding her nationality and identity,
    the BIA also affirmed the IJ’s adverse credibility finding. Mbaye’s lack of credibility rendered her
    ineligible for asylum and undermined her application for withholding of removal and protection
    under the CAT. The IJ’s order of removal thus became final, 8 C.F.R. § 1241.1(a), and Mbaye did
    not petition this court for review of the BIA’s decision.
           On September 11, 2008, Mbaye filed a motion to reopen her case. In the motion, she alleged:
    (1) that the overthrow of the democratically elected government of Mauritania in August 2008
    constituted material, “new circumstances requiring the review of [her] newly submitted asylum
    application” and remand to the IJ for adjudication; and (2) that newly discovered material evidence
    from a witness who had known Mbaye in Mauritania supported reopening Mbaye’s original case.
    The motion also appeared to appeal the IJ’s original determination that Mbaye was incredible and
    ineligible for asylum. Attached to the motion were: an unsigned and unnotarized witness statement
    by a person claiming to have known Mbaye in Mauritania in the 1990s, when both were involved
    in “the program of alphabetization for women and children”; a signed statement from Mbaye
    clarifying some of the testimony that the IJ had found incredible; the chapter on Mauritania in the
    Central Intelligence Agency’s The World Factbook; an article about the August 2008 coup,; and a
    fact page on Mauritania from Amnesty International’s website that predated the coup. On September
    29, 2008, Mbaye filed supplemental documents, which included six articles reporting on the
    Mauritanian coup and its aftermath and a State Department profile of Mauritania that predated the
    coup. At the same time, Mbaye filed her second application for asylum, withholding of removal, and
    protection under the CAT. She argued that the coup increased the likelihood that she would be
    persecuted because of her pro-democratic actions and because the non-democratic government was
    unable to stop persecution based on race and tribe.
           The BIA denied the motion to reopen on March 10, 2009, citing Matter of Coelho, 20 I. &
    N. Dec. 464 (B.I.A. 1992), and finding “insufficient evidence that the respondent has met the heavy
    burden of demonstrating that, were the record to be remanded, it would likely change the result of
    her case.” The BIA determined that Mbaye had failed to rebut or even address the IJ’s adverse
    credibility finding or the IJ’s questions regarding her eligibility for asylum based on a lack of proof
    of identity or timeliness. The BIA also concluded that Mbaye failed to demonstrate how the regime
    change in Mauritania affected her individually, and, therefore, found that she had presented no “new
    or material evidence which would persuade [it] to change the result of [the] June 13, 2008, decision.”
    Mbaye timely appealed the March 10, 2009, order. Mbaye v. Holder, No. 09-3396, Petition for
    Review (6th Cir. Apr. 9, 2009).
           In her petition for review, Mbaye requests that we review the BIA’s March 10, 2009, order
    denying her motion to reopen. Id. However, in her appellate brief, she seeks general relief,
    consideration of her second application, and review of the BIA’s June 13, 2008, order affirming her
    order of removal. Because we may review only the decision for which the petition for review was
    filed, Stone v. INS, 
    514 U.S. 386
    , 405–06 (1995), the sole issue properly before us is whether the
    BIA abused its discretion by denying Mbaye’s September 11, 2008, motion to reopen.3
            Furthermore, we cannot review Mbaye’s claim—raised for the first time in her appellate
    brief—that she was denied due process of law because she was not allowed to present evidence that
    she would be eligible for humanitarian asylum under 8 C.F.R. § 208.13(b)(1)(iii)(B). There is no
    evidence in the record that Mbaye petitioned the IJ for withholding based on humanitarian grounds,
    and her appeal to the BIA contained no due process claim. According to 8 U.S.C. § 1252(d)(1), we
    may review a claim “only if the alien has exhausted all administrative remedies available.” This
    exhaustion requirement is jurisdictional in nature, and, therefore, we lack jurisdiction to review the
    due process claim. See Liu v. Holder, 
    560 F.3d 485
    , 494 (6th Cir. 2009); Ramani v. Ashcroft, 
    378 F.3d 554
    , 558 (6th Cir. 2004); see also Vakeesan v. Holder, 343 F. App’x 117, 126–27 (6th Cir.
           In her motion to reopen, Mbaye requested: (1) to submit a successive application due to
    changed country conditions and personal circumstances following the 2008 coup in Mauritania; and
    (2) to reopen the proceedings based on new evidence of Mbaye’s Mauritanian nationality. Mbaye
    failed to assert or develop any argument in her brief regarding the latter and has therefore waived this
    claim. Liu v. Holder, 
    560 F.3d 485
    , 489 n.4 (6th Cir. 2009) (citations omitted) (“[A]n issue that is
    not raised in a party’s briefs may generally be deemed waived.”). Therefore, we need only address
    the BIA’s decision to deny Mbaye’s request to submit a second asylum application pursuant to 8
    U.S.C. § 1158(a)(2)(D) based on changed circumstances.4
           We review the BIA’s denial of a motion to reopen for abuse of discretion regardless of the
    grounds on which reopening is sought. INS v. Doherty, 
    502 U.S. 314
    , 323 (1992). The Supreme
    Court has noted that the Attorney General’s discretion to grant or deny such motions is “broad,” id.,
    and that “the moving party bears a heavy burden,” INS v. Abudu, 
    485 U.S. 94
    , 110 (1988). “A
    reviewing court must possess a ‘definite and firm conviction that the court below committed a clear
    error of judgment in the conclusion it reached upon a weighing of the relevant factors.’” Sako v.
    434 F.3d 857
    , 863 (6th Cir. 2006) (citing Balani v. INS, 
    669 F.2d 1157
    , 1160 (6th Cir.
             Citing United States v. Johnson, 
    440 F.3d 832
    , 845–46 (6th Cir. 2006), the government
    urges us to find that Mbaye waived “any challenge” to the BIA’s March 10, 2008, order. In Johnson,
    this court reaffirmed the “settled appellate rule that issues adverted to in a perfunctory manner,
    unaccompanied by some effort at developed argumentation, are deemed waived.” 440 F.3d at
    845–46; see also Sunarto v. Mukasey, 306 F. App’x 957, 962 (6th Cir. 2009). This waiver is
    prudential rather than jurisdictional. Gasca-Rodriguez v. Holder, 322 F. App’x 447, 449 (6th Cir.
    2009) (citation omitted). The government accurately notes that the BIA’s denial of the motion to
    reopen is only cursorily discussed in the summary of argument section and that there is but one
    reference to the impact of the August 2008 coup on Mbaye’s case. However, having reviewed the
    brief, the motion to reopen—filed by prior counsel—and the record on appeal, we find Mbaye’s
    arguments for submitting a successive application are ascertainable and reviewable. See Abeshi v.
    Mukasey, 259 F. App’x 775, 778 (6th Cir. 2008).
    1982)). Therefore, we may not displace the BIA’s determination unless the decision “was made
    without a rational explanation, inexplicably departed from established policies, or rested on an
    impermissible basis such as invidious discrimination against a particular race or group.” Allabani
    v. Gonzalez, 
    402 F.3d 668
    , 675 (6th Cir. 2005) (quoting Balani, 669 F.2d at 1161) (internal quotation
    marks omitted).
           The Supreme Court has outlined “three independent grounds on which the BIA may deny a
    motion to reopen”:
           First, it may hold that the movant has not established a prima facie case for the
           underlying substantive relief sought. . . . Second, the BIA may hold that the movant
           has not introduced previously unavailable, material evidence, 8 C.F.R. § 3.2 (1987)
           . . . . Third, in cases in which the ultimate grant of relief is discretionary . . . , the
           BIA may leap ahead, as it were, over the two threshold concerns . . . , and simply
           determine that even if they were met, the movant would not be entitled to the
           discretionary grant of relief.”
    Abudu, 485 U.S. at 104–05. The BIA denied Mbaye’s motion on all three grounds. We hold that
    the BIA did not abuse its discretion in finding that Mbaye failed to present previously unavailable,
    material evidence or in finding that she failed to present a prima facie case for asylum, withholding
    of removal, and protection under the CAT. Because the BIA properly denied the motion based on
    these two independent grounds, and because the granting of withholding of removal and protection
    under the CAT is not discretionary, see 8 C.F.R. § 208.17; 8 U.S.C. § 1231(b)(3), we need not
    address the third ground.
           In order to meet her burden, Mbaye must show that the evidence of changed circumstances
    are “material [] and not available and could not have been discovered or presented at the former
    hearing.” 8 C.F.R. § 1003.2(c)(1); see also Allabani, 402 F.3d at 675 (“[T]he [BIA] may determine,
    as a sufficient ground for denying a motion to reopen, whether the alien has produced previously
    unavailable, material evidence.” (citation omitted)). Material evidence is such that “if proved,
    [would] change the outcome.” Vakeesan, 343 F. App’x at 122; see also Matter of Coelho, 20 I. &
    N. Dec. 464, 473 (B.I.A. 1992). This Mbaye has not done.
           The only previously unavailable evidence that Mbaye offers with her motion to reopen is the
    fact of a military coup d’état in Mauritania in early August 2008. In her appellate brief, she argues
    that “the newly entrenched military government in Mauritania has exhibited a callous indifference
    to human rights and freedoms and thus would likely persecute [Mbaye] for her political opinion.”
    Although clearly previously unavailable, Mbaye does not demonstrate that the occurrence of the
    coup is material to her case. Mbaye’s testimony and asylum applications do not attribute her alleged
    past persecution to her political opinions, but rather to her black Mauritanian ethnicity. In fact, she
    does not provide any evidence that she took part in political activism. She characterized Boolo as
    a women’s group that promoted the education of girls. She described her activities in Boolo as
    teaching girls to read. The alleged detention and harassment that she allegedly suffered was due to
    a land claim, rather than due to her participation in Boolo. Moreover, she originally blamed the
    alleged killings of her father and brother on ethnic tensions, not to any political activism. That she
    varied her story slightly in her second application by attributing her brother’s and father’s killings
    to her activity with Boolo cannot provide new, material evidence because it “would have been
    previously available . . . inasmuch as [her] claim rests almost entirely on [her] own memory.” See
    Sunarto v. Mukasey, 306 F. App’x 957, 962 (6th Cir. 2009).
           Furthermore, an alien seeking “to reopen based on changed country conditions ‘cannot rely
    on speculative conclusions or mere assertions of fear of possible persecution, but instead must offer
    reasonably specific information showing a real threat of individual persecution.’” Harchenko v. INS,
    379 F.3d 405
    , 410 (6th Cir. 2004) (quoting Dokic v. INS, No. 92-3592, 
    1993 WL 265166
    , at *4 (6th
    Cir. July 15, 1993)); see also Kalaj v. Mukasey, 276 F. App’x 465, 467 (6th Cir. 2008) (finding that
    “a random collection of Internet articles principally describing on-going political tension . . . along
    with two country reports . . . describing both positive and negative developments . . . [provide]
    nothing even remotely individualized”). Thus, for the August 2008 coup to be material to Mbaye’s
    case and warrant reopening of her asylum proceedings, Mbaye must demonstrate that the coup
    presents a threat of persecution to her. However, Mbaye offers no evidence that the government
    would target her specifically or that the government has targeted members of Boolo in the past. She
    offers no evidence that the alleged detention and beating that she suffered was due to her political
    beliefs or association with Boolo.5 Rather, she presents evidence to the contrary: she maintained in
    testimony and in her asylum applications that her ethnicity and refusal to relinquish her family’s land
    to a white Moor resulted in her alleged detention and rape. Therefore, she has not presented
    evidence demonstrating that, because of the August 2008 coup, she is likely to be persecuted because
    of her political beliefs. She also presents no evidence that the coup has resulted in a resurgence of
    the land claims and ethnic violence of the early 1990s. Mbaye, therefore, has failed to demonstrate
    that the new evidence is material and would alter the outcome of her case, and we hold that the BIA
    did not abuse its discretion in so finding.
           In addition to being a prerequisite for her motion to reopen, presentation of previously
    unavailable, material evidence is also necessary for Mbaye to overcome the bar to successive
              Indeed, other than her own testimony, the only corroborating evidence of her membership
    in Boolo—or that Boolo exists—that Mbaye presents is an unsigned, unnotarized declaration from
    a person claiming to have known her in Mauritania and who stated that they both taught girls
    literacy. The person fails to reference Boolo or a women’s organization. We have previously found
    that the lack of evidence of membership in the political organization that forms the basis of an alien’s
    claim is not an improper grounds for denying an application for asylum. See Allabani, 402 F.3d at
    applications contained in 8 U.S.C. § 1158(2)(c). See 8 U.S.C. § 1158(a)(2)(D) (permitting a
    successive petition “if the alien demonstrates to the satisfaction of the Attorney General . . . the
    existence of changed circumstances which materially affect the applicant’s eligibility for asylum.”);
    Zhang v. Mukasey, 
    543 F.3d 851
    , 859 (6th Cir. 2008) (holding that “an alien [may] apply for asylum
    successively, based on any material changed conditions for 90 days after a final order of removal,
    but not thereafter”). Mbaye filed her motion to reopen and intent to submit a successive application
    within the ninety-day deadline and so need only demonstrate that material, changed circumstances
    warrant an exception to the general prohibition on successive asylum applications. See 8 U.S.C.
    § 1229a(c)(7)(C)(i), (ii) (stating that an alien must file a motion to reopen within ninety days of the
    order of removal becoming final); 8 C.F.R. § 1241.1(a) (mandating that an order of removal becomes
    final upon the dismissal of an appeal by the BIA). However, because we hold that Mbaye’s motion
    to reopen presents no facts that, if proven, materially affect her eligibility, she cannot overcome the
    § 1158(2)(c) bar to successive petitions. The BIA, therefore, did not abuse its discretion in declining
    to review Mbaye’s second application.
           Even if Mbaye had presented previously unavailable, material evidence, she failed to
    establish that she was “statutorily eligible for [the] relief [sought] prior to the entry of the
    administratively final order.” 8 C.F.R. § 1003.2(c)(1); see also Sako, 434 F.3d at 862. In order to
    demonstrate statutory eligibility for asylum, and therefore a prima facie showing of eligibility for
    relief, an alien must establish that he is a refugee. 8 U.S.C. § 1158(b)(1)(A); 8 C.F.R. § 1208.13;
    Alizoti v. Gonzales, 
    477 F.3d 448
    , 452 (2007). “Prima facie evidence, according to the BIA, is
    evidence that ‘reveals a reasonable likelihood that the statutory requirements for relief have been
    satisfied.’” Alizoti, 477 F.3d at 452 (quoting Matter of S–V–, 22 I. & N. Dec. 1306, 1308 (B.I.A.
    2000)). The statutory definition of a refugee is a person unable or unwilling to return to his country
    of origin “because of [past] persecution or a well-founded fear of persecution on account of race, .
    . . membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42); see also
    Sako, 434 F.3d at 862.
           Mbaye fails to demonstrate either past persecution or a well-founded fear of future
    persecution and, therefore, her motion to reopen must fail. See Zhang, 543 F.3d at 854 (“When a
    necessary element of her claim—whether she faced a risk of individual persecution—failed, so did
    her entire motion.”). “To the extent [that Mbaye’s] underlying asylum claim is based on past
    persecution, her claim is precluded by the IJ’s previous adverse credibility determination.”
    Vakeesan, 343 F. App’x at 124; see also Zhang, 543 F.3d at 855 (holding that the BIA did not abuse
    its discretion in taking into account the IJ’s and BIA’s prior, unrebutted adverse credibility
    determination in reviewing documentation submitted with a motion to reopen); Abeshi, 259 F. App’x
    at 778 (holding that the BIA did not abuse its discretion when it denied a motion to reopen because
    the petitioner failed to present new, material evidence or address a prior adverse credibility
    determination). Mbaye also fails to demonstrate a well-founded fear of future persecution because
    her claim relies entirely on her allegations of past persecution, which the IJ and BIA found to be
    incredible.   Therefore, she cannot demonstrate that she faces “a reasonable probability of
    persecution” if returned to Mauritania. See, e.g., Vakeesan, 343 F. App’x at 126 (“Absent the
    accounts of past persecution, the record is devoid of any evidence to suggest that [the petitioner]
    faces a reasonable possibility of being singled out individually for persecution.” (citing Zhang, 543
    F.3d at 854–55)).
           Because Mbaye fails to demonstrate that she would be statutorily eligible for asylum based
    on the record and new evidence and did not present any previously unavailable evidence that is
    material to her case, we conclude that “the new evidence offered would [not] likely change the result
    in the case.” Matter of Coelho, 20 I. & N. Dec. at 473. Therefore, the BIA did not abuse its
    discretion in denying her motion to open and in declining to review her successive asylum
           We also hold that the BIA did not abuse its discretion by not reviewing Mbaye’s successive
    petition for withholding of removal and protection under the CAT. “An application seeking
    withholding of deportation faces a more stringent burden of proof than one for asylum,”
    Mikhailevitch v. INS, 
    146 F.3d 384
    , 391 (6th Cir. 1998), and, thus, “[a]n alien who fails to establish
    that she is a refugee eligible for asylum under 8 U.S.C. § 1158 will necessarily fail to satisfy the
    ‘clear probability’ requirement for a withholding of deportation claim,” Vakeesan, 343 F. App’x at
    120 n.5 (citing Abay v. Ashcroft, 
    368 F.3d 634
    , 637 (6th Cir. 2004)). Therefore, because the
    outcome of Mbaye’s application for asylum would likely not differ from the IJ’s and BIA’s original
    determination, her motion to reopen proceedings with respect to withholding of removal and
    protection under the CAT also fails.
           For the foregoing reasons, we deny Mbaye’s petition for review.