Garcia-Alves v. Garland ( 2022 )

Case: 21-60517 Document: 00516340868 Page: 1 Date Filed: 06/02/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 2, 2022
No. 21-60517
Lyle W. Cayce
Summary Calendar
Clerk
Makitio Garcia-Alves,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A213 477 768
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Makitio Garcia-Alves, a native and citizen of Angola, petitions for
review of a decision of the Board of Immigration Appeals (BIA) dismissing
his appeal from a decision of the immigration judge (IJ) concluding that he
was ineligible for asylum, withholding of removal, and relief under the
*
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opinion should not be published and is not precedent except under the limited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: 21-60517 Document: 00516340868 Page: 2 Date Filed: 06/02/2022
No. 21-60517
Convention Against Torture (CAT). The BIA affirmed the IJ’s adverse
credibility determination; on that basis, it concluded that Garcia-Alves had
failed to establish an eligibility for relief.
As a preliminary matter, we find that Garcia-Alves abandoned his
claims for asylum and withholding of removal when he admitted in his brief
submitted to the BIA that he could not show the requisite nexus between any
actual or feared persecution and a protected ground. Insofar as he seeks to
reprise those claims in his petition, we lack jurisdiction to consider them. See
8 U.S.C. § 1252(d)(1); Martinez-Guevara v. Garland, 27 F. 4th 353, 360 (5th
Cir. 2022); Omari v. Holder, 562 F.3d 314, 320-21 (5th Cir. 2009).
Otherwise, Garcia-Alves challenges the BIA’s credibility
determination, raising arguments that attempt to explain away the several
inconsistencies identified by the BIA. However, the BIA cited “specific and
cogent reasons derived from the record” to support the adverse credibility
determination. Singh v. Sessions, 880 F.3d 220, 225 (5th Cir. 2018) (internal
quotation marks and citation omitted). Garcia-Alves has failed to
demonstrate that it is clear from the totality of the circumstances that no
reasonable factfinder could make an adverse credibility ruling in his case. See
Wang v. Holder, 569 F.3d 531, 538-40 (5th Cir. 2009). Thus, the adverse
credibility determination is supported by substantial evidence. See id. at 536-
40.
Further, although an adverse credibility determination is not
necessarily dispositive of a CAT claim, Garcia-Alves has pointed to “no
independent, non-testimonial evidence going to the likelihood of torture,”
and therefore the adverse credibility finding is also decisive of his CAT claim.
Arulnanthy v. Garland, 17 F.4th 586, 597-98 (5th Cir. 2021) (quotation on
598).
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Case: 21-60517 Document: 00516340868 Page: 3 Date Filed: 06/02/2022
No. 21-60517
Accordingly, the petition for review is DENIED IN PART and
DISMISSED IN PART for lack of jurisdiction.
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