Toumany Fofana v. ATTORNEY GENERAL OF THE UNITED STATES On

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4144
TOUMANY FOFANA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
On Petition for Review of an Order
of the Board of Immigration Appeals
Agency No. A096 265 562
Immigration Judge: Alberto J. Riefkohl
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 24, 2009
Before: AMBRO, FISHER and JORDAN Circuit Judges
(Opinion filed October 9, 2009)
OPINION
PER CURIAM
Toumany Fofana petitions for review of an order of the Board of Immigration
Appeals (BIA), which dismissed his appeal from an Immigration Judge’s (IJ’s) final
removal order. We will deny the petition.

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1 According to documents in the record, slavery has been outlawed in Mauritania
several times, but it apparently still exists in some places. See e.g., U.S. Department of
State, Country Reports on Human Rights Practices - Mauritania for 2005, at 13; A.R. 179.
See also articles at A.R. 216-30.
2 Two different asylum applications in the record state in the attached narrative that
Fofana has a sister. He denied that at the hearing before the IJ, stating that he had only
two brothers, and that the person who prepared his applications must have misunderstood.
A.R. 86, 94, 127. The IJ does not seem to have considered this discrepancy in making
his adverse credibility finding.
2
Fofana is a native and citizen of Mauritania. He arrived with false documents in
December 2002. He filed an application for asylum and conceded removability. He
sought relief based on his claim that he was slave who escaped from his master, and that
if he were to be returned to Mauritania, his master would kill him. In a hearing before an
IJ, Fofana testified that his parents were born into slavery, as was he. A.R. 88.1 His
master was a white Moor. Id. He is of the Soninke ethnic group. A.R. 85. He helped his
father herd cattle when he was younger, and took over the job at the age of 15, when his
father was too old to work. A.R. 88. Fofana testified that he was whipped and beaten
with a baton frequently, but that he did not have any permanent marks or scars from the
beatings. A.R. 90-93. In December 2000, his father fell ill. They begged the master to
get him medical attention, but he refused, and his father died a week later. A.R. 90, 199.
Fofana became determined to escape. He secretly sold four head of cattle. A.R. 94. He
had a birth certificate, and had recently obtained an identity card. A.R. 129. He and his
mother and siblings2 escaped to Mali. A.R. 94. Although he could not legally work in
Mali, he found some employment with Mr. Dianguine Makadji, with whom he bore a
striking physical resemblance. A.R. 103.

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3
Makadji allowed him to “borrow” his passport, which contained a business visa for
the United States. Makadji also apparently used the wages owed to Fofana to purchase a
plane ticket and give him the equivalent of about $500.00. A.R. 99, 105-06. Fofana
claimed that he is unable to read or write in any language. A.R. 108, 117. His seatmate
helped him fill out his I-94 form on the airplane. Id. When they arrived at JFK, he found
someone who spoke his language who translated for him in the inspection interview.
That person wrote down a Manhattan address for him, and gave it to a cab driver to take
Fofana there. A.R. 110-11. The address was a place where other Mauritanians lived, and
he stayed there for about a year. A.R. 113-14.
The IJ made an adverse credibility finding based on questions regarding: (1)
Fofana’s identity card; (2) the lack of any marks on Fofana’s body from alleged frequent
beatings; (3) Fofana’s story of how he borrowed the passport and how a stranger helped
him in his airport interview; and (4) Fofana’s testimony that two submitted letters from
friends back home (which did not mention slavery) were unsolicited, but that other letters,
which he had misplaced, spoke about the problems of slavery in Mauritania. Because the
IJ found that Fofana was not credible, he denied asylum and withholding of removal. The
IJ also found no evidence that Fofana would be tortured if he were to return to
Mauritania.
The BIA adopted and affirmed the IJ’s decision, and stated that it agreed that
Fofana was not credible. The BIA recognized that the IJ “cited numerous factors in his
adverse credibility determination,” and noted “in particular, the discrepancies cited by the

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3 The provisions of the Real ID Act of 2005 regarding review of adverse credibility
findings do not apply to cases such as this one, where the asylum application was filed
before the enactment of the Real ID Act. Real ID Act of 2005, Pub. L. No. 109-13, Div.
B, § 101, 119 Stat. 231 (May 11, 2005).
4
Immigration Judge regarding [Fofana’s] Mauritanian identity document and the forensics
report (I.J. at 9; Tr. at 79) and the respondent’s implausible testimony about his inspection
when he arrived in the United States and the assistance of the stranger (I.J. at 7, 10), a
matter which is adequate to be a factor in an adverse credibility determination.” A.R. 2.
An adverse credibility finding is reviewed under the substantial evidence test, and
must be upheld unless “any reasonable adjudicator would be compelled to conclude to the
contrary.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002) (quoting 8 U.S.C.
§ 1252(b)(4)(B)). An adverse credibility finding cannot be supported by speculation,
conjecture or minor inconsistencies, but must involve discrepancies that go to the “heart
of the asylum claim.” Kaita v. Attorney General, 522 F.3d 288, 296 (3d Cir. 2008).3
We hold that the IJ’s adverse credibility finding is supported by substantial
evidence. We agree with the BIA that the questions regarding Fofana’s identity card
particularly support the finding. First, the record notes that the card was issued in 1996,
but that Fofana did not receive it until three years later. A.R. 133-34. Fofana had no
explanation for this oddity. Fofana also insisted that the card was issued without a picture
or fingerprint, and that he added those later. A.R. 134. There is no evidence in the record
that the government of Mauritania would issue an identity card without a picture or seal.
Fofana’s identity goes to the heart of his claim; failure to establish his identity

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4 The IJ also questioned why Fofana’s father would not obtain cards for the whole
family rather than just Fofana. However, Fofana testified that his father may have
obtained cards for the whole family; he did not know whether other family members had
cards. A.R. 135-36. We thus do not consider this factor as supporting the adverse
credibility finding.
5
undermines any claim that he is a former slave.4 The BIA also cited Fofana’s
“implausible testimony about his inspection when he arrived in the United States and the
assistance of the stranger” as a factor supporting the adverse credibility finding. We find
it is not entirely implausible that Fofana could have found, among people disembarking
from a flight from Mali, someone who spoke his language and who was willing to assist
him. However, the IJ, who has heard many asylum cases, found that the details of
Fofana’s story, including his alleged use of his employer’s passport, were more consistent
with those of a person who had used a smuggler to gain entry to the United States. A.R.
35.
Because the evidence in support of Fofana’s credibility is not “so compelling that
no reasonable factfinder could conclude as the [IJ] did,” see Kayembe, 334 F.3d at 234,
we will deny the petition for review.

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