Case: 20-60046 Document: 00515967938 Page: 1 Date Filed: 08/06/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-60046 August 6, 2021
Summary Calendar Lyle W. Cayce
Clerk
Keita Pathe,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A201 520 440
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Keita Pathe, a native and citizen of Guinea, petitions us for review of
a decision of the Board of Immigration Appeals. The Board upheld a negative
credibility finding made by the Immigration Judge and rejected Pathe’s
*
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opinion should not be published and is not precedent except under the limited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: 20-60046 Document: 00515967938 Page: 2 Date Filed: 08/06/2021
No. 20-60046
asylum and due process claims. Pathe alleged a mob killed his partner and
that he faced the same fate if removed.
We grant deference to an Immigration Judge’s credibility
determination. Wang v. Holder, 569 F. 3d 531, 536-38 (5th Cir. 2009). A
credibility finding is proper if based on “any inconsistency or omission . . . as
long as the totality of the circumstances” supports the finding. Id. at 538.
Pathe provided explanations for the inconsistences in testimony but the
Immigration Judge and Board are not required to accept those explanations.
Morales v. Sessions, 860 F.3d 812, 817 (5th Cir. 2017). Pathe had the burden
of producing corroborating evidence and did not do so. Avelar-Oliva v. Barr,
954 F.3d 757, 770-71 (5th Cir. 2020). Without corroborating evidence, we
are not compelled to reject the conclusions of the Immigration Judge and
Board in favor of the explanations Pathe provides about the negative
credibility factors. See Avelar-Oliva, 954 F.3d at 770-71; Rui Yang v. Holder,
664 F.3d 580, 585-87 (5th Cir. 2011). Argument regarding the merits of
Pathe’s asylum claims is precluded by a lack of credible evidence. 8 U.S.C.
§ 1158(b)(1)(B); Chun v. INS, 40 F.3d 76, 79 (5th Cir. 1994).
We are not compelled to find that Pathe’s due process rights were
violated because substantial prejudice has not been established. Anwar
v. INS, 116 F.3d 140, 144 (5th Cir. 1997). Additionally, there is no evidence
the Immigration Judge acted incorrectly when considering his general duty
to develop the record and testimony as well as the lack of a mandate to act as
an advocate. Arteaga v. Barr, 954 F.3d 812, 813 (5th Cir. 2020).
We decline to take notice of the motion to reopen that was denied by
the BIA because that motion to reopen is not properly before this court.
The petition for review is DENIED. The motion to take judicial
notice of Pathe’s motion to reopen is also DENIED.
2