United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 29, 2004
Charles R. Fulbruge III
Clerk
No. 03-61044
Summary Calendar
FAISAL MOHAMMAD ALI,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A77 977 248
--------------------
Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Petitioner Faisal Mohammad Ali, a native and citizen of
Pakistan, has petitioned for review of an order of the Board of
Immigration Appeals (“BIA”) affirming without opinion the
immigration judge’s (“IJ”) decision denying Ali’s application for
(1) asylum, (2) withholding of deportation, and (3) relief under
the Convention Against Torture (“CAT”).
“Although this Court generally reviews decisions of the BIA,
not immigration judges, it may review an immigration judge’s
*
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this opinion should not be published and is not precedent except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.
decision when, as here, the BIA affirms without additional
explanation.” Moin v. Ashcroft, 335 F.3d 415, 417 (5th Cir. 2003).
“[T]his Court must affirm the decision if there is no error of law
and if reasonable, substantial, and probative evidence on the
record, considered as a whole, supports the decision’s factual
findings.” Id. Under this standard, “the alien must show that the
evidence is so compelling that no reasonable factfinder could
conclude against it.” Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994).
This court “cannot substitute [its] judgment for that of the BIA or
IJ with respect to the credibility of the witnesses or ultimate
factual findings based on credibility determinations.” Chun, 40
F.3d at 78. “[G]reat deference” is given to “an immigration
judge’s decisions concerning an alien’s credibility.” Efe v.
Ashcroft, 293 F.3d 899, 904 (5th Cir. 2002).
The Attorney General, in his discretion, is authorized to
grant asylum to aliens who qualify as refugees. 8 U.S.C.
§ 1158(b)(1). An alien is a refugee when he is outside his country
and “is unable or unwilling to return to, and is unable or
unwilling to avail himself or herself of the protection of, that
country because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A). The alien must prove some nexus between the
persecution and one of the five enumerated grounds. INS v. Elias-
Zacarias, 502 U.S. 478, 482 (1992).
2
Ali contends that he is eligible for asylum because he is a
victim of past persecution and has a well-founded fear of
persecution in Pakistan because of his membership in a particular
social group. The IJ declined to exercise his discretion to grant
asylum because he found that Ali’s testimony was not credible and
because the testimony was not corroborated by other evidence. The
IJ’s credibility determination was based on discrepancies between
Ali’s written application and credible-fear interview and his
testimony at the asylum hearing. The IJ gave cogent reasons for
finding that Ali was not credible, and his determination that Ali
was not credible is amply supported by the record. See Moin, 335
F.3d at 417. As the IJ’s credibility determination is supported by
substantial evidence, we do not address the IJ’s alternative
holding that Ali’s testimony, if believed, did not demonstrate
eligibility for asylum.
To be eligible for withholding of deportation, an alien must
demonstrate a “clear probability” of persecution on return, a
standard more stringent than that needed to establish eligibility
for asylum. Mikhael v. INS, 115 F.3d 299, 306 (5th Cir. 1997). As
Ali did not present credible evidence sufficient to establish his
eligibility for asylum, no reversible error is presented with
respect to the IJ’s denial of withholding of deportation.
A claim under the CAT is a separate claim from withholding of
deportation and should receive separate analytical attention. Efe,
293 F.3d at 906-07. The CAT requires an alien to show “that it is
3
more likely than not that he or she would be tortured if removed to
the proposed country of removal. The testimony of the applicant,
if credible, may be sufficient to sustain the burden of proof
without corroboration.” 8 C.F.R. § 208.16(c)(2). The torture need
not be inflicted because of race, religion, nationality, membership
in a particular social group, or political opinion. Efe, 293 F.3d
at 907. “Torture is defined as any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted
on a person...by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity.” 8 C.F.R. § 208.18(a)(1). “Torture is an
extreme form of cruel and inhuman treatment and does not include
lesser forms of cruel, inhuman or degrading treatment or punishment
that do not amount to torture.” 8 C.F.R. § 208.18(a)(2). The
petitioner has the burden of proving “that it is more likely than
not that he or she would be tortured if removed to the proposed
country of removal. The testimony of the applicant, if credible,
may be sufficient to sustain the burden of proof without
corroboration.” 8 C.F.R. § 208.16(c)(2).
Ali testified that he had been arrested and detained several
times by Pakistani authorities and that he had been beaten during
those detentions. The IJ found that Ali had not shown that the
physical mistreatment during those arrests was so severe that Ali
was entitled to withholding of removal under the CAT. As Ali’s
testimony was not considered to be credible, there was no credible
4
evidence showing that Ali was likely to be tortured on his return
to Pakistan. Id. The record does not compel a contrary
conclusion. See Chun, 40 F.3d at 78. The petition for review of
the BIA’s order is
DENIED.
5