Jinfeng Wu v. Jefferson Sessions, III ( 2018 )

Case: 17-60749 Document: 00514696367 Page: 1 Date Filed: 10/24/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-60749 United States Court of Appeals
Summary Calendar
Fifth Circuit
FILED
October 24, 2018
JINFENG WU, Lyle W. Cayce
Clerk
Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A094 068 655
Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
Jinfeng Wu, a native and citizen of China, petitions for review of the
order of the Board of Immigration Appeals (BIA) dismissing her appeal of the
Immigration Judge’s (IJ) denial of her application for asylum, withholding of
removal, and relief under the Convention Against Torture (CAT). On appeal,
Wu argues that substantial evidence does not support the BIA’s affirmance of
the IJ’s adverse credibility determination and that the BIA failed to properly
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-60749 Document: 00514696367 Page: 2 Date Filed: 10/24/2018
No. 17-60749
address her arguments and explanations for the perceived inconsistencies in
her testimony.
First, “[j]udicial review of a final order of removal is available only where
the applicant has exhausted all administrative remedies of right.” Roy v.
Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004); see 8 U.S.C. § 1252(d)(1). This court
lacks jurisdiction to consider an issue when an applicant has failed to exhaust
it by raising it in the first instance before the BIA, either on direct appeal or in
a motion to reopen. See Roy, 389 F.3d at 137. Wu did not argue before the BIA
that the IJ’s denial of her CAT claim was erroneous. As the BIA could have
corrected the IJ’s alleged error had Wu raised it, this court lacks jurisdiction
to consider this claim. See Roy, 389 F.3d at 137. Further, in order to exhaust
any claims relating to the BIA’s “act of decisionmaking,” Wu was required to
file a motion for reconsideration. See Omari v. Holder, 562 F.3d 314, 320 (5th
Cir. 2009). She did not do so, thereby depriving this court of jurisdiction to
consider whether the BIA committed legal error by failing to fully address her
arguments or her explanations for the inconsistencies. See id. at 320-21.
On petition for review of a BIA decision, this court reviews factual
findings for substantial evidence and questions of law de novo. Lopez-Gomez
v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). This court reviews only the order
of the BIA unless the IJ’s decision “has some impact on the BIA’s decision,”
Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997), in which case it reviews the
IJ’s decision as well, Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). Here,
because the BIA adopted the IJ’s decision, this court will consider both
decisions. See Wang, 569 F.3d at 536. Pursuant to the substantial-evidence
standard, “this court may not overturn the BIA’s factual findings unless the
evidence compels a contrary conclusion.” Gomez-Palacios v. Holder, 560 F.3d
354, 358 (5th Cir. 2009).
2
Case: 17-60749 Document: 00514696367 Page: 3 Date Filed: 10/24/2018
No. 17-60749
Credibility determinations are factual findings that are reviewed for
substantial evidence. See Vidal v. Gonzales, 491 F.3d 250, 254 (5th Cir. 2007).
An adverse credibility determination “must be supported by specific and cogent
reasons derived from the record.” Wang, 569 F.3d at 537 (internal quotation
marks and citation omitted). The IJ and 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) (emphasis
in original). In the instant case, the IJ and the BIA relied on specific
inconsistencies among Wu’s testimony and application. Before this court, Wu
cites no evidence compelling a finding that she is credible; rather, she offers
reinterpretations of her testimony and the evidence in an attempt to explain
away the inconsistencies and the lack of detail identified by the IJ and BIA.
The record does not compel a determination that Wu was credible, and she has
failed to show that, under the totality of the circumstances, no reasonable
factfinder could have made the adverse credibility ruling. See Wang, 569 F.3d
at 538-40; Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996). We
therefore defer to the IJ’s and BIA’s adverse credibility determinations. See
Wang, 569 F.3d at 538-39.
Based on the foregoing, Wu’s petition is DENIED in part and
DISMISSED in part for lack of jurisdiction.
3