Muhammad Dhaduk v. Eric Holder, Jr. ( 2014 )

Case: 13-60133 Document: 00512527655 Page: 1 Date Filed: 02/10/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-60133 FILED
Summary Calendar February 10, 2014
Lyle W. Cayce
Clerk
MUHAMMAD JUNAID DHADUK,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A099 614 775
Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
Muhammad Junaid Dhaduk, a native and citizen of Pakistan, petitions
for review of the order of the Board of Immigration Appeals (BIA) dismissing
his appeal of the order of the immigration judge (IJ) finding him removable
and denying his applications for withholding from removal and protection
under the Convention Against Torture (CAT).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-60133
First, Dhaduk challenges the IJ’s determination that his testimony
during his removal proceedings was not credible and the BIA’s determination
that the IJ’s adverse credibility decision was not clearly erroneous. We review
the decision of the BIA, as well as the decision of the IJ, because the BIA
approved of and relied upon the IJ’s decision. See Wang v. Holder, 569 F.3d
531, 536 (5th Cir. 2009). We defer to the IJ’s credibility determination “unless
from the totality of the circumstances, it is plain that no reasonable fact-finder
could make such an adverse credibility ruling.” Id. at 538 (internal quotation
marks and citation omitted).
The IJ and the BIA pointed to specific instances in the record where
Dhaduk’s testimony was either evasive, internally inconsistent, or inconsistent
with his application for relief and the sworn statement attached thereto. Thus,
the adverse credibility determination in this case is “supported by specific and
cogent reasons derived from the record.” See Zhang v. Gonzales, 432 F.3d 339,
344 (5th Cir. 2005). Dhaduk argues that he testified candidly that he could
not remember events sequentially and that some events he remembered only
as he was testifying. These arguments touch upon some, but not all, of the
reasons for the adverse credibility determinations. After reviewing the
administrative record in this case, we conclude that Dhaduk has failed to show
that “it is plain that no reasonable fact-finder could make an adverse
credibility ruling” against him. See Wang, 569 F.3d at 538 (internal quotation
marks and citations omitted).
Next, Dhaduk argues that the IJ and the BIA erred in determining that
he was not eligible for withholding of removal. After finding that neither
Dhaduk nor his wife had testified credibly, the IJ considered Dhaduk’s claim
for withholding of removal and denied the claim. The BIA agreed with the IJ
that Dhaduk had not met his burden of proof for withholding of removal in
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light of his incredible testimony and the absence of other independent evidence
supporting the claim.
To obtain withholding of removal, an applicant must show a clear
probability that he will be persecuted upon his return to his home country. Roy
v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004). “A clear probability means that
it is more likely than not that the applicant’s life or freedom would be
threatened by persecution on account of either his race, religion, nationality,
membership in a particular social group, or political opinion.” Id. The BIA
agreed with the IJ that Dhaduk’s incredible testimony could not be used to
support his claim for withholding of removal and that there was insufficient
independent evidence to meet his burden of proof. In his petition for review,
Dhaduk does not make any argument with respect to the determination that
there was insufficient evidence independent of his own testimony to meet his
burden of proof. Dhaduk has thus failed to show that the BIA’s decision, i.e.,
that he had not established a claim for withholding of removal, is not supported
by substantial evidence. See Bouchikhi v. Holder, 676 F.3d 173, 176, 181 (5th
Cir. 2012); Zamora-Morel v. INS, 905 F.2d 833, 838 (5th Cir. 1990).
Accordingly, Dhaduk’s petition for review, to the extent it challenges the
adverse credibility determination and the denial of his claim for withholding
of removal, is denied.
Finally, Dhaduk argues that he proved his eligibility for relief under the
CAT and that the BIA erred in upholding the IJ’s denial of such relief. The
administrative record indicates that Dhaduk never challenged the IJ’s denial
of relief under the CAT before the BIA and that the BIA considered the issue
waived. Because Dhaduk did not raise this claim before the BIA, he has not
exhausted it, and we lack jurisdiction to review it. See 8 U.S.C. § 1252(d)(1);
Lopez–Dubon v. Holder, 609 F.3d 642, 644 (5th Cir. 2010). We therefore
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dismiss that portion of Dhaduk’s petition challenging the IJ’s denial of relief
under the CAT.
PETITION FOR REVIEW DENIED IN PART and DISMISSED IN
PART.
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