Eihadj Balde v. William P. Barr ( 2020 )

FILED
NOT FOR PUBLICATION
JUN 25 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EIHADJ OUSMANE BALDE, No. 18-70796
Petitioner, Agency No. A213-077-593
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 23, 2020**
Before: HAWKINS, GRABER, and BYBEE, Circuit Judges.
Petitioner Eihadj Ousmane Balde, a native and citizen of Guinea, petitions
for review of a decision of the Board of Immigration Appeals (BIA) dismissing his
appeal from the denial of his applications for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). He argues that the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
immigration judge (IJ) erred in finding his testimony not credible, not allowing
him to present original copies of certain documents, and finding that he had not
satisfied his burden of proof for CAT protection.
1. We review adverse credibility determinations for substantial evidence. See
Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014). As a finding of fact, a credibility
determination is “conclusive unless any reasonable adjudicator would be
compelled to conclude the contrary.” Manes v. Sessions, 875 F.3d 1261, 1263 (9th
Cir. 2017) (per curiam) (internal quotation marks omitted). An adverse credibility
determination alone, when properly based on substantial evidence, is enough to
support the denial of asylum. See Shrestha v. Holder, 590 F.3d 1034, 1048 n.6
(9th Cir. 2010).
Substantial evidence supports the adverse credibility determination here.
The IJ articulated multiple internal inconsistencies in Balde’s testimony, as well as
inconsistencies between Balde’s testimony and the record evidence. For example,
Balde was inconsistent in his testimony about when and where he met his
boyfriend, whether they kissed in public, whether they lived together, and whether
he told a family member about the relationship. These were not the type of minor
inconsistencies that would not ordinarily support an adverse credibility finding.
See Ren v. Holder, 648 F.3d 1079, 1087 (9th Cir. 2011) (explaining that minor
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inconsistency voluntarily corrected in the moment is not sufficient to support an
adverse credibility finding).
2. Balde also argues that the IJ erred by not allowing him to present the
original version of certain documents. This is a challenge to a “correctable
procedural error” that Balde failed to present to the BIA. Agyeman v. INS, 296
F.3d 871, 877 (9th Cir. 2002). Accordingly, the issue is not exhausted and this
court lacks jurisdiction to review it. Sanchez-Cruz v. INS, 255 F.3d 775, 780 (9th
Cir. 2001).
3. Because Balde failed to establish eligibility for asylum, he necessarily failed
to establish eligibility under the more stringent standard for withholding of
removal. See Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir. 2000).
4. Finally, the record does not compel the conclusion that Balde is eligible for
protection under CAT. See Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir. 2003)
(finding denial of protection under CAT supported by substantial evidence where
based on the same testimony properly found to be not credible below). Balde
presented country conditions evidence, but there is no evidence in the record to
compel the conclusion that Balde will be tortured. See Delgado-Ortiz v. Holder,
600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam) (holding that generalized
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evidence that is not particularized to the applicant is insufficient to establish CAT
eligibility).
PETITION DENIED.
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