Khakim v. Garland ( 2022 )

Case: 20-60611 Document: 00516354661 Page: 1 Date Filed: 06/13/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 13, 2022
No. 20-60611
Lyle W. Cayce
Summary Calendar
Clerk
Ayan Khakim; Ayaz Nurmukhambetov,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A201 473 177
Agency No. A201 473 178
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Brothers Ayan Khakim and Ayaz Nurmukhambetov petition for
review of a decision of the Board of Immigration Appeals (BIA) dismissing
their appeal from a decision of the Immigration Judge (IJ) concluding that
*
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opinion should not be published and is not precedent except under the limited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: 20-60611 Document: 00516354661 Page: 2 Date Filed: 06/13/2022
No. 20-60611
they were not credible and were ineligible for asylum, withholding of
removal, and relief under the Convention Against Torture (CAT). Insofar
as they raise claims that were not timely presented to the BIA, these claims
are unexhausted, so we lack jurisdiction to consider them. See Roy v. Ashcroft,
389 F.3d 132, 137 (5th Cir. 2004); 8 U.S.C. § 1252(d)(1).
Their preserved arguments concerning the BIA’s credibility
assessment, membership in a particular social group (PSG), and CAT relief
are reviewed under the substantial evidence standard. See Zhang v. Gonzales,
432 F.3d 339, 344 (5th Cir. 2005). Additionally, we review the decision of
the BIA and consider the IJ’s decision only insofar as it influenced the BIA.
See Singh v. Sessions, 880 F.3d 220, 224 (5th Cir. 2018).
The BIA’s credibility determination is supported by “specific and
cogent reasons derived from the record,” see Zhang, 432 F.3d at 344, and
consideration of the record as a whole does not show that “no reasonable
fact-finder” could make such a determination, see Singh, 880 F.3d at 225
(internal quotation marks and citation omitted); see also id. at 224. The
adverse credibility finding is also a sufficient basis for the BIA’s decision that
the petitioners were ineligible for asylum and withholding. See Chun v. INS,
40 F.3d 76, 79 (5th Cir. 1994). Accordingly, we need not consider their
particular social group argument. See INS v. Bagamasbad, 429 U.S. 24, 25
(1976). Finally, they have not shown that the evidence compels a conclusion
contrary to that of the BIA on the issue whether they will more likely than not
be tortured if repatriated. See Ramirez-Mejia v. Lynch, 794 F.3d 485, 493 (5th
Cir. 2015); Zhang, 432 F.3d at 344. The petition for review is DENIED in
part and DISMISSED in part.
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