Ordenana Mercado v. Garland ( 2023 )

Case: 22-60292 Document: 00516623666 Page: 1 Date Filed: 01/26/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-60292
Summary Calendar FILED
____________ January 26, 2023
Lyle W. Cayce
Rodolfo Jose Ordenana Mercado, Clerk
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A096 331 766
______________________________
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam: *
Rodolfo Jose Ordenana Mercado, a native and citizen of Nicaragua,
petitions for review of the order by the Board of Immigration Appeals (BIA)
dismissing the appeal from the immigration judge’s denial of withholding of
removal and protection under the Convention Against Torture (CAT).
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60292 Document: 00516623666 Page: 2 Date Filed: 01/26/2023
No. 22-60292
We review the BIA’s decision and will consider the IJ’s underlying
decision only if it impacted the BIA’s decision, as it did here. See Sharma v.
Holder, 729 F.3d 407, 411 (5th Cir. 2013). Findings of fact, including the
denial of withholding of removal and CAT protection, are reviewed under
the substantial evidence standard. Chen v. Gonzales, 470 F.3d 1131, 1134 (5th
Cir. 2006). Credibility determinations are also reviewed under the
substantial evidence standard. Wang v. Holder, 569 F.3d 531, 538 (5th Cir.
2009). Under this standard, we may not reverse unless the evidence
“compels” such a reversal—i.e., the evidence must be “so compelling that
no reasonable factfinder could reach a contrary conclusion.” Chen, 470 F.3d
at 1134. It is the petitioner’s burden to demonstrate that the evidence
compels a contrary conclusion. Id. Conclusions of law are reviewed de novo.
Sharma, 729 F.3d at 411.
Ordenana Mercado incorrectly argues that because the
inconsistencies between his testimony and the record were not material to his
claims for relief, they were not grounds for an adverse credibility
determination. See Wang, 569 F.3d at 538 (holding that an IJ may rely
on any inconsistency in determining credibility). He does not attempt to
argue that the totality of circumstances compels a reversal of the IJ’s
credibility determination. See id. Substantial evidence supports the BIA’s
affirmance of the IJ’s credibility determination and the dismissal of Ordenana
Mercado’s withholding of removal claim as a result. See id.; see also
Arulnanthy v. Garland, 17 F.4th 586, 597 (5th Cir. 2021) (holding that adverse
credibility can be dispositive of an asylum claim); Ndifon v. Garland, 49 F.4th
986, 988-89 (5th Cir. 2022) (treating withholding of removal claims similarly
within this context).
Ordenana Mercado’s argument regarding his CAT claim that the BIA
failed to consider country conditions evidence and relied solely on his adverse
credibility similarly fails. See Ndifon, 49 F.4th at 989. The BIA stated that
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No. 22-60292
the IJ found that Ordenana Mercado “did not present independent evidence
that it is more likely than not that he would be tortured in Nicaragua by or
with the acquiescence of a public official”; the BIA did not state that he failed
to present independent evidence at all. See id. at 989-90 (finding that BIA did
not consider country conditions evidence where it stated that the petitioner
did not point to other objective evidence to support his CAT claim). The
BIA also affirmed the IJ’s decision for the reasons stated in his order, wherein
the IJ explicitly held that the country conditions evidence submitted by
Ordenana Mercado failed to show “how it is more likely than not that he will
be placed personally at risk of torture.” Thus, Ordenana Mercado has not
shown that the BIA failed to consider his country conditions evidence. See
id. Finally, Ordenana Mercado has failed to show that the record compels a
reversal of the BIA’s determination that he is not entitled to CAT protection.
See Chen, 470 F.3d at 1134.
Accordingly, Ordenana Mercado’s petition for review is DENIED.
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