Tawani v. Garland

Case: 20-60265     Document: 00515911358         Page: 1     Date Filed: 06/23/2021




              United States Court of Appeals
                   for the Fifth Circuit                               United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                                                          June 23, 2021
                                  No. 20-60265                           Lyle W. Cayce
                                Summary Calendar                              Clerk


   Joel Eko Tawani,

                                                                      Petitioner,

                                       versus

   Merrick Garland, U.S. Attorney General,

                                                                     Respondent.


                      Petition for Review of an Order of the
                          Board of Immigration Appeals
                              BIA No. A201 743 267


   Before Clement, Higginson, and Engelhardt, Circuit Judges.
   Per Curiam:*
          Joel Eko Tawani petitions for review of the dismissal by the Board of
   Immigration Appeals (BIA) of his appeal from the denial by the Immigration
   Judge (IJ) of his applications for asylum, withholding of removal, and
   protection under the Convention Against Torture (CAT). We review the


          *
            Pursuant to 5th Circuit Rule 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   opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-60265      Document: 00515911358            Page: 2   Date Filed: 06/23/2021




                                    No. 20-60265


   decision of the BIA and will consider the IJ’s decision only to the extent it
   influenced the BIA. Shaikh v. Holder, 588 F.3d 861, 863 (5th Cir. 2009).
   Questions of law are reviewed de novo and factual findings are reviewed for
   substantial evidence. Id. Under the substantial evidence standard, “[t]he
   alien must show that the evidence was so compelling that no reasonable
   factfinder could conclude against it.” Wang v. Holder, 569 F.3d 531, 537 (5th
   Cir. 2009).
          As to Tawani’s claim that he was deprived of his due process rights by
   the IJ’s alleged abuse of process, he did not explicitly raise this claim before
   the BIA. A due process claim is not subject to exhaustion unless it implicates
   a procedural error correctable by the BIA. Roy v. Ashcroft, 389 F.3d 132, 137
   (5th Cir. 2004). As this alleged error is of the type which would have been
   correctable by the BIA, we lack jurisdiction to consider it. See id.
          Tawani also challenges the BIA’s denial of his applications for asylum,
   withholding of removal, and protection under the CAT based on the adverse
   credibility finding. By failing to address the specific basis for the adverse
   credibility determination, he has arguably abandoned the issue. See Soadjede
   v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
          In any event, the record does not compel a finding that Tawani was
   credible or that no reasonable factfinder could have made an adverse
   credibility finding. See Singh v. Sessions, 880 F.3d 220, 225 (5th Cir. 2018).
   The adverse credibility determination was based on the implausibility of and
   inconsistencies in Tawani’s various accounts, which are permissible grounds
   upon which to base that finding. See Avelar-Oliva v. Barr, 954 F.3d 757, 763-
   64 (5th Cir. 2020). Without credible evidence, the agency had no basis upon
   which to grant Tawani’s applications. See Chun v. I.N.S., 40 F.3d 76, 79 (5th
   Cir. 1994); see also Dayo v. Holder, 687 F.3d 653, 658-59 (5th Cir. 2012).
          DISMISSED in part for lack of jurisdiction; DENIED in part.




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