Borges Alfonso v. Garland ( 2021 )

Case: 19-60698 Document: 00515821420 Page: 1 Date Filed: 04/14/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 14, 2021
No. 19-60698
Summary Calendar Lyle W. Cayce
Clerk
Yasmany Jorge Borges Alfonso,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A215 734 323
Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam:*
Yasmany Jorge Borges Alfonso, a native and citizen of Cuba, petitions
for review of a decision of the Board of Immigration Appeals (BIA) upholding
the Immigration Judge’s (IJ) adverse credibility finding and dismissing his
appeal from the IJ’s denial of his application for asylum, withholding of
*
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opinion should not be published and is not precedent except under the limited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: 19-60698 Document: 00515821420 Page: 2 Date Filed: 04/14/2021
No. 19-60698
removal, and relief under the Convention Against Torture (CAT). Borges
makes three claims: the BIA violated his due-process rights; it improperly
found him not credible, adversely affecting his asylum and withholding-of-
removal claims; and it and the IJ improperly concluded his CAT claim was
meritless.
Borges claims the BIA violated his due-process rights because it
rejected his claim that the IJ violated those rights in: failing to grant a
continuance and consider evidence he submitted; and prejudicially
misinterpreting his testimony. The claim fails because Borges has not made
a prima facie showing that the asserted due-process violation affected the
outcome of the proceedings. See Santos-Alvarado v. Barr, 967 F.3d 428, 439
(5th Cir. 2020) (alien must make prima facie showing of asserted due-process
violation affecting outcome of proceedings).
Regarding Borges’ claim that the BIA and IJ should have found him
credible, factual findings, including credibility determinations, are reviewed
for substantial evidence; questions of law, de novo. Wang v. Holder, 569 F.3d
531, 536–37 (5th Cir. 2009) (applying substantial evidence standard of review
for factual findings based on credibility determinations); Zhu v. Gonzales, 493
F.3d 588, 594 (5th Cir. 2007).
In the light of the BIA’s adopting two of the inconsistencies found by
the IJ, the record does not compel our determining Borges was credible,
notwithstanding his alternative explanations for the inconsistences. See
Wang, 569 F.3d at 536–37 (“Under substantial evidence review, this court
may not reverse the BIA’s factual findings unless the evidence compels it.”).
Given the adverse credibility finding, we reach the merits of Borges’ asylum
and withholding-of-removal claims “only to the extent that other evidence
was presented to support those claims”. Suate-Orellana v. Barr, 979 F.3d
1056, 1061–62 (5th Cir. 2020). After considering the evidence identified in
2
Case: 19-60698 Document: 00515821420 Page: 3 Date Filed: 04/14/2021
No. 19-60698
Borges’ counseled brief, we conclude the BIA’s decision was supported by
substantial evidence.
Finally, by failing to meaningfully challenge the BIA’s reasons for
dismissing his appeal from the denial of CAT relief, Borges has abandoned
that claim. See Thuri v. Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004)
(“[Petitioner] has waived her claim for relief under [CAT] by failing to raise
it in her petition for review.”).
DENIED.
3