Case: 21-60491 Document: 00516496682 Page: 1 Date Filed: 10/04/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 4, 2022
No. 21-60491
Lyle W. Cayce
Summary Calendar Clerk
Godfrey Kizito,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A206 561 579
Before Barksdale, Higginson, and Ho, Circuit Judges.
Per Curiam:*
Godfrey Kizito, a native and citizen of Uganda, petitions for review of
the Board of Immigration Appeals’ (BIA) dismissing his appeal from an
Immigration Judge’s (IJ) denying his claims for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT). 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opinion should not be published and is not precedent except under the limited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.
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No. 21-60491
BIA agreed with the IJ: Kizito’s testimony was not credible; and he failed to
present sufficient corroborating evidence to support his claims. Kizito
challenges the adverse credibility determination and maintains he presented
sufficient evidence showing his eligibility for relief.
To the extent he asserts the country-condition report for Uganda
establishes a well-founded fear of future persecution, that claim was not
presented to the BIA; therefore, our court lacks jurisdiction to consider it.
E.g., Martinez-Guevara v. Garland, 27 F.4th 353, 360–61 (5th Cir. 2022) (no
jurisdiction to review BIA decision unless alien exhausts claim by presenting
it to BIA in a manner where he “could reasonably tie what [he] said to the
Board to [his] claims” before our court (citation omitted)).
The BIA’s factual findings are reviewed for substantial evidence; its
conclusions of law, de novo. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th
Cir. 2001). The substantial-evidence standard applies to factual
determinations that an alien is ineligible for asylum, withholding of removal,
and CAT protection. Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).
Under this standard, our court will reverse the BIA’s decision only when
“the evidence compels a contrary conclusion”. Carbajal-Gonzalez v. INS,
78 F.3d 194, 197 (5th Cir. 1996). “In other words, the alien must show that
the evidence was so compelling that no reasonable factfinder could conclude
against it.” Id.
The IJ’s ruling is reviewed only to the extent it affected the BIA’s
decision. Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). In determining
credibility, the IJ “may rely on any inconsistency or omission”. Singh v.
Sessions, 880 F.3d 220, 225 (5th Cir. 2018) (citations omitted); 8 U.S.C.
§ 1158(b)(1)(B)(iii). If the IJ determines the “totality of the circumstances”
requires an adverse credibility finding, our court will defer to that finding so
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Case: 21-60491 Document: 00516496682 Page: 3 Date Filed: 10/04/2022
No. 21-60491
long as it is “supported by specific and cogent reasons”. Singh, 880 F.3d at
225 (citations omitted).
The BIA and IJ noted numerous inconsistencies between Kizito’s
testimony, his application for asylum, and other record evidence; and
determined he lacked sufficient corroborating evidence to reconcile the
discrepancies. He also admitted to presenting false information on his visa
application. Accordingly, the adverse credibility finding was supported by
the record, and the evidence does not compel a contrary result. Wang v.
Holder, 569 F.3d 531, 538 (5th Cir. 2009) (IJ’s adverse credibility decisions
upheld unless no reasonable fact finder could reach such result).
Because the adverse credibility finding against Kizito’s primary
support for his claims (his testimony) was proper, the evidence does not
compel a finding he was eligible for asylum, withholding of removal, or CAT
protection. Avelar-Oliva v. Barr, 954 F.3d 757, 763–70 (5th Cir. 2020) (where
petitioner’s testimony presents inconsistencies, failure to provide sufficient
corroborating evidence may be “fatal to an alien’s application for relief”).
(Kizito generally referred to the Ugandan government’s propensity to
torture and animus towards those who aid the LGBTQ community in his
brief to the BIA. Even assuming his claim that the country-condition report
supports CAT relief by showing a likelihood of future torture was exhausted,
the evidence does not compel a finding it is “more likely than not” he would
be tortured in Uganda. Efe v. Ashcroft, 293 F.3d 899, 907–08 (5th Cir. 2002).)
DISMISSED in part; DENIED in part.
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