Rabbi v. Garland ( 2021 )

Case: 19-60800 Document: 00515912792 Page: 1 Date Filed: 06/24/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 24, 2021
No. 19-60800
Lyle W. Cayce
Summary Calendar
Clerk
Rabbi Rabbi, also known as Rabbi,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A 201 526 096
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Rabbi Rabbi, a native and citizen of Bangladesh, seeks review of a
Board of Immigration Appeals (BIA) order dismissing his appeal from an
Immigration Judge (IJ) decision denying his application for asylum,
*
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opinion should not be published and is not precedent except under the limited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: 19-60800 Document: 00515912792 Page: 2 Date Filed: 06/24/2021
No. 19-60800
withholding of removal, and relief under the Convention Against Torture
(CAT). The petition is denied.
An adverse credibility determination “must be supported by specific
and cogent reasons derived from the record.” Wang v. Holder, 569 F.3d 531,
537 (5th Cir. 2009) (internal quotation marks and citation omitted). The IJ
and the BIA “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.” Id. at 538 (internal
quotation marks and citation omitted). When the BIA identifies “specific
inconsistencies” and “crucial omissions,” it has “supported its
determination with specific and cogent reasons derived from the record.”
Ghotra v. Whitaker, 912 F.3d 284, 289 (5th Cir. 2019) (internal citations
omitted). The record before this court contains multiple inconsistencies
between Rabbi’s sworn statement, asylum interview, application, and
testimony. Both the IJ opinion and the BIA opinion evince reliance on
specific inconsistencies. See id. 289. Thus, the record does not compel the
conclusion that Rabbi testified credibly. See Wang, 569 F.3d at 536-37.
Aliens in removal proceedings are presumed to be competent to
participate in those proceedings. Matter of M-A-M-, 25 I & N Dec. 474, 477
(BIA 2011). In cases where issues implicating mental competency arise, the
IJ must consider whether there is good cause to believe that the alien is not
competent to proceed without safeguards. Id. at 479. This court has
previously recognized that the IJ, who is in the courtroom and has experience
with witnesses who assert persecution, is best positioned to weigh whether
the applicant has a “genuine[] problem” or is instead “feign[ing] a problem
to avoid probing questions about inconsistencies in a false story.” See Wang,
569 F.3d at 539.
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Case: 19-60800 Document: 00515912792 Page: 3 Date Filed: 06/24/2021
No. 19-60800
Rabbi did not mention feeling unwell until he was questioned
pointedly regarding some inconsistencies in his case. His answers to
questions indicated that he was oriented to time, place, and purpose. There
is no record evidence that Rabbi has ever suffered from any mental health
issues. Accordingly, the BIA did not err by affirming the IJ’s finding that he
was competent to proceed. See Wang, 569 F.3d at 539.
Moreover, the BIA did not conflate a lack of corroborating evidence
with a credibility finding. The testimony of an applicant may suffice to carry
his burden of proof without corroboration, but only if the testimony is
credible, persuasive, and refers to specific facts. 8 U.S.C. § 1229a(c)(4)(B);
8 U.S.C. § 1158(b)(1)(B)(ii). Where the court determines that an applicant
should provide corroborating evidence, the applicant must provide the
evidence unless the applicant cannot reasonably obtain it. § 1229a(c)(4)(B);
§ 1158(b)(1)(B)(ii). An application can be denied due to the applicant’s
failure to provide reasonably available corroborating information. Yang v.
Holder, 664 F.3d 580, 584-85, 587 (5th Cir. 2011). Additionally, this court
has held that a lack of corroboration can support an adverse credibility finding
where the record contains other indications of incredulity. See Marroquin-
Almengon v. Barr, 778 F. App’x 330, 331–32 (5th Cir. 2019) (per curiam).
The BIA also properly dispatched Rabbi’s arguments that he had
insufficient time to obtain corroborating evidence. As the BIA correctly
stated, Rabbi failed to explain the numerous inconsistencies in his testimony
and prior statements. Rabbi did not testify credibly, regardless of the
additional evidence he submitted to the BIA. See INS v. Bagamasbad, 429
U.S. 24, 25 (1976) (per curiam) (“As a general rule courts and agencies are
not required to make findings on issues the decision of which is unnecessary
to the results they reach.”).
The petition for review is DENIED.
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