Case: 20-61094 Document: 00516394877 Page: 1 Date Filed: 07/14/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 14, 2022
No. 20-61094
Summary Calendar Lyle W. Cayce
Clerk
Divine A. Asongafac,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A213 327 334
Before Davis, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Divine A. Asongafac, a native and citizen of Cameroon, petitions for
review of a decision of the Board of Immigration Appeals (BIA) dismissing
his appeal from a decision of the Immigration Judge (IJ) concluding that he
was not entitled to asylum, withholding of removal, and relief under 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opinion should not be published and is not precedent except under the limited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: 20-61094 Document: 00516394877 Page: 2 Date Filed: 07/14/2022
No. 20-61094
Convention Against Torture (CAT). The BIA affirmed the IJ’s adverse
credibility determination, held that Asongafac was not entitled to asylum or
withholding of removal on that basis, and ruled that he had waived any
challenge to the denial of CAT relief.
Before this court, Asongafac challenges the agency’s credibility
determination. The BIA relied on the IJ’s “specific and cogent reasons
derived from the record” to support the adverse credibility determination.
Singh v. Sessions, 880 F.3d 220, 225 (5th Cir. 2018) (internal quotation marks
and citation omitted). Although Asongafac presents explanations for the
inconsistences in his accounts, the BIA was not required to accept them. See
Santos-Alvarado v. Barr, 967 F.3d 428, 438-39 (5th Cir. 2020). Additionally,
“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).
Asongafac has failed to demonstrate that, under the totality of the
circumstances, it is clear that no reasonable factfinder could make an adverse
credibility ruling in his case. See Wang, 569 F.3d at 538-40. Thus, the
agency’s determination is supported by substantial evidence. See id. at 536-
40.
Without credible evidence, there was no basis for the BIA to grant
asylum or withholding of removal. See Chun v. INS, 40 F.3d 76, 79 (5th Cir.
1994). To the extent that Asongafac argues that the BIA should have
remanded his case so the IJ could further consider his asylum request after
the third-party transit bar was vacated, the BIA did not rely on this portion of
the IJ’s decision, and we need not address the argument. See Singh, 880 F.3d
at 224. To the extent that Asongafac is contending that he is entitled to
asylum on the merits of his claims in the absence of the transit bar, given the
dispositive adverse credibility determination, we need not address that
2
Case: 20-61094 Document: 00516394877 Page: 3 Date Filed: 07/14/2022
No. 20-61094
argument. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976). Although
Asongafac contends that he was denied a fair hearing due to a physical
ailment and interruptions by the IJ, he has not shown that he was unable to
understand or answer questions or how he was prejudiced by any comments
that the IJ made during the hearing. See Wang, 569 F.3d at 541; Calderon-
Ontiveros v. INS, 809 F.2d 1050, 1052 (5th Cir. 1986).
Asongafac also contends that the BIA erred in finding that he waived
his CAT claim and that he should have been granted relief under the CAT.
Because Asongafac did not raise these arguments with the BIA, they are
unexhausted, and we lack jurisdiction to consider them. See 8 U.S.C.
§ 1252(d)(1); See Martinez-Guevara v. Garland, 27 F.4th 353, 359-60 (5th Cir.
2022); Omari v. Holder, 562 F.3d 314, 320-21 (5th Cir. 2009).
Accordingly, the petition for review is DENIED in part and
DISMISSED in part.
3