Victor Njoku v. Eric Holder, Jr. , 540 F. App'x 280 ( 2013 )

Case: 13-60045 Document: 00512375439 Page: 1 Date Filed: 09/16/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 16, 2013
No. 13-60045
Summary Calendar Lyle W. Cayce
Clerk
VICTOR IKEDINACHI NJOKU,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A079 558 323
Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Nigerian national Victor Ikedinachi Njoku petitions for review of the
Board of Immigration Appeals’ (BIA) order dismissing his appeal from and
affirming the decision of the Immigration Judge (IJ) finding him deportable and
denying his petition to remove conditions on his permanent resident status. The
petition was filed jointly with his United States citizen wife, Ramona, pursuant
to 8 U.S.C. § 1186a.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 13-60045
Njoku contends that substantial evidence does not support the BIA’s
conclusion that he married Ramona for immigration purposes. As part of this
argument, he urges that the BIA and IJ erred in relying on the transcripts of the
United States Citizenship and Immigration Services interviews, which he now
asserts were improperly admitted after the removal hearing. He urges that the
transcripts were unreliable and reveal a bias on the interviewing officer’s part,
and he further argues, for the first time, that the late admission of the
transcripts violated his due process rights because it deprived him of the ability
to use them for impeachment purposes during cross-examination.
As the BIA determined, Njoku waived any objection to the admission of the
transcripts by failing to assert it before the IJ. See Bolvito v. Mukasey, 527 F.3d
428, 438 (5th Cir. 2008). Moreover, Njoku did not assert any due process claim
in connection with the late-filed transcripts before the BIA. Consequently, the
claim is unexhausted, and this court will not consider it. See Wang v. Ashcroft,
260 F.3d 448, 452-53 (5th Cir. 2001); see also Goonsuwan v. Ashcroft, 252 F.3d
383, 388-89 (5th Cir. 2001).
With respect to Njoku’s claim that substantial evidence does not support
the BIA’s determination of marriage fraud, reversal is improper unless this court
decides “not only that the evidence supports a contrary conclusion, but [also]
that the evidence compels it.” Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir.
2005) (internal quotation marks and citation omitted) (emphasis and alteration
in original). Njoku has failed to show that the evidence compels a conclusion
that his marriage was bona fide. He argues that the IJ gave insufficient weight
to the considerable evidence that he entered into his marriage in good faith and
urges that the adverse credibility determination was error because his and
Ramona’s statements were essentially consistent and because any
inconsistencies were relatively minor.
Njoku’s assertions notwithstanding, there is substantial evidence in the
record to support the adverse credibility finding made by the IJ and BIA in this
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No. 13-60045
case given the multiple inconsistencies in Njoku’s and Ramona’s interview
statements and hearing testimony, detailed in the IJ’s and BIA’s decisions,
including Njoku’s inability to recall accurately the date on which he married
Ramona. “[A]n IJ may rely on any inconsistency or omission in making an
adverse credibility determination as long as the totality of the circumstances
establishes that [the petitioner] is not credible.” Wang v. Holder, 569 F.3d 531,
538 (5th Cir. 2009). Given the totality of the circumstances, including the
material discrepancies in Njoku’s and Ramona’s testimony and interview
statements, Njoku has failed to show that no reasonable factfinder could have
found his testimony to be incredible. See id.Substantial evidence likewise supports the IJ’s and BIA’s determination
that the marriage was entered into for immigration purposes. The testimony
revealed that Njoku and Ramona had been living apart in different states for
most of the marriage, and their alleged romantic history was cast into doubt by
the numerous inconsistent statements regarding dates and circumstances that
any legitimate couple would be expected to recall with ease. The evidence does
not compel a conclusion contrary to the BIA’s. See Zhang, 432 F.3d at 344.
Accordingly, the petition for review is DENIED.
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