Case: 22-60300 Document: 00516703639 Page: 1 Date Filed: 04/06/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
April 6, 2023
No. 22-60300 Lyle W. Cayce
Summary Calendar Clerk
____________
Alex Noe Torres-Escamilla,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A209 231 964
______________________________
Before Barksdale, Higginson, and Ho, Circuit Judges.
Per Curiam:*
Alex Noe Torres-Escamilla, a native and citizen of Honduras,
petitions for review of the Board of Immigration Appeals’ (BIA) dismissing
his appeal from an order of the immigration judge (IJ) denying his application
for asylum, withholding of removal, and protection under the Convention
Against Torture (CAT). In dismissing the appeal, the BIA upheld the IJ’s
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-60300
decision: Torres’ testimony was not credible; and, alternatively, even if it
was, he failed to show his eligibility for relief. Torres challenges the adverse
credibility determination and maintains he established his eligibility for relief.
We review the BIA’s decision and will consider the IJ’s decision only
to the extent it affected that of the BIA. E.g., Zhu v. Gonzales, 493 F.3d 588,
593 (5th Cir. 2007). Factual findings are reviewed for substantial evidence;
conclusions of law, de novo. E.g., id. at 594. The substantial-evidence
standard applies to factual determinations that an alien is ineligible for
asylum, withholding of removal, and CAT protection. E.g., 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.
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 long as it is “supported by specific and cogent
reasons”. Singh, 880 F.3d at 225 (citations omitted).
The BIA pointed to numerous inconsistencies and omissions upon
which the IJ had relied in making its credibility determination, between
Torres’ credible-fear interview and his testimony before the IJ. Most
notable, regarding Torres’ claimed fear of harm by gang members he claims
targeted him for recruitment, Torres did not explain the inconsistency
pertaining to whether the gang recruited him as a lookout/informant or to
construct weapons. This discrepancy goes to the heart of his claim; therefore
it “easily constitute[s] substantial evidence to support an adverse credibility
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No. 22-60300
finding”. Arulnanthy v. Garland, 17 F.4th 586, 593–94 (5th Cir. 2021). And,
even where Torres attempts to explain other inconsistencies throughout his
application process and testimony, such as when he was allegedly beaten by
gang members, the record does not compel a determination that he was
credible. See Morales v. Sessions, 860 F.3d 812, 817 (5th Cir. 2017) (“Neither
an IJ nor the BIA is required to accept a petitioner’s explanation for the plain
inconsistencies in her story.” (citation omitted)); Zhu, 493 F.3d at 594
(under substantial-evidence standard, our court reverses factual findings only
when “evidence compels us to do so”). Finally, to the extent he contends
any discrepancies were because he was trying to protect his family in
Honduras, that contention was not presented to the BIA; therefore, we lack
jurisdiction to consider it. E.g., Martinez-Guevara v. Garland, 27 F.4th 353,
360 (5th Cir. 2022).
The adverse-credibility finding being proper, the evidence does not
compel finding Torres was eligible for asylum, withholding of removal, or
CAT relief. E.g., Avelar-Oliva v. Barr, 954 F.3d 757, 763–70 (5th Cir. 2020)
(where petitioner’s testimony is incredible, failure to provide sufficient
corroborating evidence may be “fatal to an alien’s application for relief”);
Efe v. Ashcroft, 293 F.3d 899, 907–08 (5th Cir. 2002) (CAT relief requires
applicant show “it is more likely than not” he would be tortured).
DISMISSED in part; DENIED in part.
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