Mihail Calos v. Loretta Lynch , 644 F. App'x 288 ( 2016 )

Case: 14-60820 Document: 00513435410 Page: 1 Date Filed: 03/23/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60820
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
March 23, 2016
MIHAIL CALOS; LIUDMILA SOLOMITAKAIA,
Lyle W. Cayce
Clerk
Petitioners
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200 853 286
BIA No. A200 853 287
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Mihail Calos and his wife Liudmila Solomitakaia, natives of the Soviet
Union and citizens of Moldova, seek review of the Board of Immigration
Appeals’ (BIA) order dismissing their appeal of the Immigration Judge’s (IJ)
decision denying Calos’s requests for asylum, withholding of removal, and
relief under the Convention Against Torture (CAT).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60820
Calos did not raise his CAT claim in his appellate brief before the BIA.
Thus, the claim is unexhausted, and we lack jurisdiction to consider Calos’s
claim for protection under the CAT. See 8 U.S.C. § 1252(d)(1); Wang v.
Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001).
The BIA and the IJ 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.” Wang v.
Holder, 569 F.3d 531, 538 (5th Cir. 2009) (internal quotation marks and
citation omitted) (emphasis in original). The inconsistency need not go to the
heart of the case. Id. at 537. A credibility finding is a finding of fact that is
reviewed for substantial evidence. Id. at 538-39. Therefore, we will defer to a
credibility ruling “unless, from the totality of the circumstances, it is plain that
no reasonable fact-finder could make such an adverse credibility ruling.” Id.
at 538 (internal quotation marks and citation omitted).
Calos has not demonstrated that the record as a whole compels a
conclusion that the adverse credibility finding was erroneous. See id. He
points to no testimony or other evidence that would compel a reversal of the
agency’s determination that the implausibility of his claims of past persecution
and his fear of future persecution on account of his Roma ethnicity or political
opinion was fatal to his claim. See 8 U.S.C. § 1158(b)(1)(B)(iii) (in making
credibility determination, trier of fact to consider, among other things, the
inherent plausibility of the applicant’s account). Given the adverse credibility
ruling, Calos did not demonstrate that he was entitled to asylum or statutory
withholding of removal. See Chun v. I.N.S., 40 F.3d 76, 79 (5th Cir. 1994).
Because the credibility determinations of the IJ and BIA withstand
review, the decision to deny Calos and his wife relief is supported by
substantial evidence. See Zhang v. Gonzales, 432 F.3d 339, 344-45 (5th Cir.
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No. 14-60820
2005). Therefore, it is unnecessary to address the agency’s alternative findings
concerning failure to establish past persecution or a well-founded fear of future
persecution.
PETITION DENIED IN PART AND DISMISSED IN PART.
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