Case: 10-60576 Document: 00511453273 Page: 1 Date Filed: 04/21/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 21, 2011
No. 10-60576
Summary Calendar Lyle W. Cayce
Clerk
MOHAMMED MUSTAFA RABEE,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A055 411 741
Before DeMOSS, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
Mohammed Mustafa Rabee applied for asylum, withholding of removal,
and relief under the Convention Against Torture, alleging a fear of persecution
and torture as a Palestinian living in Israel, of which he is a native and citizen.
His application for relief was denied based largely on an adverse credibility
finding by the immigration judge (IJ), which was upheld by the Board of
Immigration Appeals (BIA) when it dismissed Rabee’s appeal.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 10-60576 Document: 00511453273 Page: 2 Date Filed: 04/21/2011
No. 10-60576
Rabee raises only two issues on appeal: 1) whether the BIA erred in
finding that Petitioner’s appeal to the BIA did not meaningfully challenge the
IJ’s negative credibility finding; and 2) whether perceived discrepancies relied
upon by the IJ and BIA were sufficient to support a negative finding on
credibility. Rabee first argues that the BIA erred by willfully refusing to
acknowledge his arguments concerning the IJ’s credibility determination. He
contends that the matter should be remanded because shortcomings in the IJ’s
decision and in the BIA’s opinion preclude judicial review of the credibility
determination. This argument lacks merit. The IJ’s decision and the BIA’s
opinion reflect that meaningful consideration was given to his arguments
concerning credibility. For example, the IJ identified four inconsistencies in
Rabee’s presentation, and also noted that Rabee had failed to provide
corroborating evidence. The BIA specifically found no clear error in the IJ’s
determination that Rabee was not credible. Rabee has therefore failed to show
that the agency’s decision is insufficient to permit judicial review. Cf.
Hernandez-Cordero v. INS, 819 F.2d 558, 563 (5th Cir. 1987).
Rabee also challenges the inconsistencies identified by the IJ, pointing to
record evidence in an attempt to show error. However, in his appeal brief to the
BIA, Rabee only specifically addressed the issue of error in the IJ’s
determination that there was an inconsistency between his statement to an
immigration agent that he did not fear persecution if returned to his home
country and his testimony regarding his fear of persecution. When a petitioner
seeks review of an IJ’s decision and elects to submit a brief to the BIA, “that
brief becomes the operative document through which any issues that a petitioner
wishes to have considered must be raised.” Claudio v. Holder, 601 F.3d 316, 319
(5th Cir. 2010). We are without jurisdiction to consider Rabee’s challenges to the
remaining inconsistencies cited by the IJ because he did not raise them before
the BIA. See Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004).
2
Case: 10-60576 Document: 00511453273 Page: 3 Date Filed: 04/21/2011
No. 10-60576
The factual findings of an immigration court are reviewed for substantial
evidence. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). “Under this
standard, reversal is improper unless we decide not only that the evidence
supports a contrary conclusion, but also that the evidence compels it.” Zhang v.
Gonzales, 432 F.3d 339, 344 (5th Cir. 2005) (internal marks and citation omitted)
(emphasis in original). Among the findings of fact that we review for substantial
evidence is the conclusion that an alien is not eligible for asylum, withholding
of removal, or relief under the CAT. Id. Also among those factual findings is an
immigration court’s determination that an alien is not credible. Chun v. I.N.S,
40 F.3d 76, 78-79 (5th Cir. 1994).
Pursuant to the REAL ID Act of 2005, “an IJ may rely on any
inconsistency or omission in making an adverse credibility determination as long
as the totality of the circumstances establishes that an asylum applicant is not
credible.” Wang v. Holder, 569 F.3d 531, 538 (5th Cir. 2009) (internal quotation
marks and citation omitted) (emphasis in original); see also 8 U.S.C. §
1158(b)(1)(B)(iii). We will “defer therefore to an IJ’s credibility determination
unless, from the totality of the circumstances, it is plain that no reasonable
fact-finder could make such an adverse credibility ruling.” Wang, 569 F.3d at
538 (internal quotation marks and citation omitted).
The adverse credibility finding here is supported by substantial evidence.
As Rabee essentially conceded in his appeal brief to the BIA, there were several
minor variances between the written statement that accompanied his
application for relief and his testimony at the immigration hearing. More
glaringly, Rabee’s testimony regarding his fear of persecution was inconsistent
with his prior statement that he did not fear persecution or torture if returned
to his home country. Rabee’s contention that his prior statement is explained
by his difficulty with the English language and other surrounding circumstances
does not provide a sufficient basis to set aside the agency’s credibility
determination. See id. at 539-40.
3
Case: 10-60576 Document: 00511453273 Page: 4 Date Filed: 04/21/2011
No. 10-60576
Rabee has not demonstrated that “it is plain that no reasonable fact-finder
could make . . . an adverse credibility ruling.” Id. at 538 (internal quotation
marks and citation omitted). Accordingly, we defer to the findings of the IJ and
the BIA that Rabee’s testimony was not credible.
PETITION DENIED.
4