Montano-Velasquez v. Garland ( 2023 )

Case: 22-60470 Document: 00516750985 Page: 1 Date Filed: 05/15/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
May 15, 2023
No. 22-60470 Lyle W. Cayce
Summary Calendar Clerk
____________
Carlos Alfredo Montano-Velasquez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A202 078 389
______________________________
Before Smith, Southwick, and Douglas, Circuit Judges.
Per Curiam:*
Carlos Alfredo Montano-Velasquez, a native and citizen of El
Salvador, petitions for review of a decision of the Board of Immigration
Appeals (BIA) dismissing his appeal from an order of the Immigration Judge
(IJ) finding him not credible and denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60470 Document: 00516750985 Page: 2 Date Filed: 05/15/2023
No. 22-60470
We review for substantial evidence. Singh v. Sessions, 880 F.3d 220, 224 (5th
Cir. 2018); Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).
In the decision summarily adopted by the BIA, the IJ determined that
Montano-Velasquez was not credible in light of inconsistencies within his
testimony and with other evidence, material omissions on direct
examination, non-responsive answers to questions, evasive explanations for
the inconsistencies and omissions, and his agitated demeanor during
questioning. See Avelar-Oliva v. Barr, 954 F.3d 757, 767 (5th Cir. 2020).
These specific and cogent reasons derived from the record support the
credibility determination; see Avelar-Oliva, 954 F.3d at 767; Singh, 880 F.3d
at 225; 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). Montano-Velasquez also fails to show that the evidence
compels a conclusion contrary to the agency’s determination that he failed to
show he more likely than not would be tortured if repatriated. See Singh, 880
F.3d at 224-25; Ramirez-Mejia v. Lynch, 794 F.3d 485, 493 (5th Cir. 2015).
As to Montano-Velasquez’s contention that his counsel provided
ineffective assistance with the I-589 application and general poor-quality
work, he has failed to exhaust the claim by presenting it to the BIA in his brief
on appeal or in a motion to reconsider; we thus lack jurisdiction to hear it.
See Martinez-Guevara v. Garland, 27 F.4th 353, 360 (5th Cir. 2022); 8 U.S.C.
§ 1252(d)(1). Similarly, we lack jurisdiction to consider Montano-
Velasquez’s claim, raised for the first time in this court, of ineffective
assistance of counsel on appeal. ECF 24, 12; Martinez-Guevara, 27 F.4th at
359; § 1252(d)(1).
The petition for review is DENIED in part and DISMISSED in
part.
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