Dab Bishwakarma v. Loretta Lynch ( 2016 )

Case: 14-60517 Document: 00513439155 Page: 1 Date Filed: 03/25/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60517
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
March 25, 2016
DAB BAHADUR BISHWAKARMA,
Lyle W. Cayce
Clerk
Petitioner
v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A087 573 037
Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
Dab Bahadur Bishwakarma, a native and citizen of Nepal, petitions for
review of a decision by 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). He has abandoned any challenge to the denial of relief under the CAT
by failing to brief that issue adequately. See Thuri v. Ashcroft, 380 F.3d 788,
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60517
793 (5th Cir. 2004) (noting that arguments not raised in the petition for review
are considered waived); Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987).
Generally, we have authority to review only the decision of the BIA but
will consider the IJ’s decision if it influenced the determination of the BIA.
Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). Because the BIA agreed
with the IJ’s findings and conclusions, the IJ’s findings are reviewable. See Efe
v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002). We review the determination of
an alien’s eligibility for asylum for substantial evidence. Zhang v. Gonzales,
432 F.3d 339, 344-45 (5th Cir. 2005).
Bishwakarma asserts that the BIA erred in concluding that his asylum
application did not meet the one-year statutory deadline. Regardless of any
error, we decline to reverse and remand on this issue because the IJ and the
BIA considered the merits of Bishwakarma’s asylum application.
Cf. Nakimbugwe v. Gonzales, 475 F.3d 281, 284-85 (5th Cir. 2007) (reversing
and remanding due to timeliness error, where the error resulted in the BIA
failing to consider the merits of petitioner’s asylum application).
Bishwakarma also argues that the IJ violated his due process rights by
aggressively questioning him during his immigration hearings. We review
constitutional claims de novo. See Sattani v. Holder, 749 F.3d 368, 370 (5th
Cir. 2014). As the BIA concluded, the record reveals that the IJ appropriately
asked questions in order to fully develop the record. See Calderon-Ontiveros v.
INS, 809 F.2d 1050, 1052-53 & n.1 (5th Cir. 1986). Moreover, the questions
asked by the IJ did not preclude Bishwakarma from presenting further
testimony or evidence concerning his claims and did not “substantially
prejudice” him. Id. at 1052; see Wang v. Holder, 569 F.3d 531, 541 (5th Cir.
2009) (rejecting similar due process claim).
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No. 14-60517
Bishwakarma further asserts that the BIA erred in affirming the IJ’s
findings on his credibility. In making an adverse credibility determination,
the IJ noted that Bishwakarma provided testimony that was not only
internally inconsistent, but also inconsistent with the documentary evidence,
including the affidavit Bishwakarma submitted with his asylum application.
The IJ cited to numerous inconsistencies upon which it had relied to reach its
decision. The BIA cited these same inconsistencies, noting that the IJ’s
analysis was “cogent” and specifically citing (1) Bishwakarma’s lack of
knowledge of the monarchy in Nepal, which was supported by his alleged
political party, (2) Bishwakarma’s explanations regarding the date he and his
family were first contacted by the Maoists, his alleged torturers, (3) the dates
and circumstances of his family’s abduction by the Maoists, and (4) the dates
and circumstances of the murders of his brother and sister. The BIA asserted
that these inconsistencies were “material,” noting that Bishwakarma was
unable to provide a coherent timeline of abuse. In light of Bishwakarma’s
inconsistent and often vague testimony, neither the IJ nor the BIA erred by
concluding that Bishwakarma was not a credible witness. See Wang, 569 F.3d
at 537-38; 8 U.S.C. § 1158(b)(1)(B)(iii). Accordingly, substantial evidence
supports the denial of his application for asylum. See Wang, 569 F.3d at 536-
37; Zhang, 432 F.3d at 344-45.
In his final issue on appeal, Bishwakarma asserts that he is entitled to
a fair consideration of his request for relief in the form of withholding of
removal. An applicant for withholding of removal “must demonstrate ‘a clear
probability’ of persecution upon return” to his native 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
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No. 14-60517
a particular social group, or political opinion.” Id.; see 8 C.F.R. § 1208.16(b); 8
U.S.C. § 1231(b)(3)(A); see also § 1208.16(b)(1)(i) (stating that a showing of past
persecution gives rise to a rebuttable presumption that an applicant’s life or
freedom will be threatened in the future). Because this standard is more
stringent than the standard required to determine eligibility for asylum -- past
persecution or a well-founded fear of future persecution on account of an
enumerated ground -- an applicant who fails to show a well-founded fear,
without more, will necessarily fail to show a clear probability of persecution.
See Chen v. Gonzales, 470 F.3d 1131, 1135, 1138 (5th Cir. 2006). Given the
adverse credibility determination and Bishwakarma’s failure to satisfy his
burden of proof regarding his eligibility for asylum, he, thus, fails to satisfy the
higher objective burden required to show eligibility for withholding of removal.
See id. at 1138.
Accordingly, Bishwakarma’s petition for review is DENIED.
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