Madan Oli v. Loretta Lynch , 623 F. App'x 175 ( 2015 )

Case: 14-60918 Document: 00513268493 Page: 1 Date Filed: 11/12/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-60918 FILED
Summary Calendar November 12, 2015
Lyle W. Cayce
Clerk
MADAN OLI,
Petitioner
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A205 361 698
Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Madan Oli, a native and citizen of Nepal, petitions for review of the
Board of Immigration Appeals’ (BIA) dismissing his appeal of the Immigration
Judge’s (IJ) denial of his application for asylum, withholding of removal, and
relief under the Convention Against Torture (CAT).
Initially, Oli contends the BIA erred in accepting the IJ’s determinations
that he: firmly resettled in India; and, alternatively, was able to relocate to
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
Case: 14-60918 Document: 00513268493 Page: 2 Date Filed: 11/12/2015
No. 14-60918
Kathmandu from his family home in Dang. He did not present these claims in
his brief to the BIA, however; and it noted he failed to address these findings.
Because these claims are unexhausted, we lack jurisdiction to consider them.
See Claudio v. Holder, 601 F.3d 316, 318 (5th Cir. 2010); Omari v. Holder, 562
F.3d 314, 321 (5th Cir. 2009).
Additionally, Oli challenges the IJ and BIA’s credibility determinations
in denying the relief requested here. Because the BIA relied upon the IJ’s
credibility determinations, we may review the findings of both the IJ and the
BIA. See Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). An IJ’s credibility
determination is reviewed for substantial evidence, and must be upheld unless
“the evidence was so compelling that no reasonable factfinder could conclude
against it.” Id. at 537. Accordingly, “if the IJ’s credibility determinations are
supported by the record, they will be affirmed”. Id. The 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.” Id. at 538 (emphasis in original); see 8 U.S.C.
§ 1158(b)(1)(B)(iii).
Oli contends the IJ and BIA failed to consider the totality of the
circumstances which, he asserts, support: a credible allegation of past
persecution based on a protected basis; and, a reasonable fear of future
persecution, including in violation of the CAT. He maintains, inter alia, his
justifications for obtaining a passport and his description of his wife’s beating
at the hands of Maoists were not inconsistent. Furthermore, Oli asserts that,
even if his testimony and documentary evidence contained inconsistencies, any
such discrepancies were not apparent, and the IJ was required to give him an
opportunity to explain them.
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Case: 14-60918 Document: 00513268493 Page: 3 Date Filed: 11/12/2015
No. 14-60918
The IJ and BIA applied the proper standard in determining whether
Oli’s allegations were credible. Although Oli relies upon alternative
explanations for his testimony and documentary evidence to clarify the
inconsistencies and discrepancies, and maintains some problems may have
resulted from translation issues, these assertions do not compel the conclusion
that no reasonable trier of fact could have found him incredible. See Wang,
569 F.3d at 538–39.
DISMISSED IN PART AND DENIED IN PART.
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