Wu v. Garland ( 2022 )

Case: 21-60420 Document: 00516446159 Page: 1 Date Filed: 08/24/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 21-60420 August 24, 2022
Summary Calendar Lyle W. Cayce
Clerk
Chen Wu,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A208 757 324
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam:*
Chen Wu, a native and citizen of the People’s Republic of China,
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
*
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opinion should not be published and is not precedent except under the limited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: 21-60420 Document: 00516446159 Page: 2 Date Filed: 08/24/2022
No. 21-60420
protection under the Convention Against Torture (CAT). We review the
BIA’s decision for substantial evidence, see Zhang v. Gonzales, 432 F.3d 339,
344 (5th Cir. 2005), and consider the IJ’s decision only to the extent it
influenced the BIA, see Singh v. Sessions, 880 F.3d 220, 224 (5th Cir. 2018).
Attacking the agency’s adverse credibility determination, Wu
contends that the IJ erred by failing to give him notice of the deficiencies in
his testimony and an opportunity to provide the necessary corroborative
evidence. Wu did not present this issue in his appeal to the BIA, and because
the issue is unexhausted, we lack jurisdiction to consider it. See Martinez-
Guevara v. Garland, 27 F.4th 353, 359-60 (5th Cir. 2022).
As to the incident in which he was nearly arrested, neither the IJ nor
the BIA was required to accept Wu’s explanation for the inconsistency in his
accounts of the incident, even if the explanation was plausible. See Santos-
Alvarado v. Barr, 967 F.3d 428, 439 (5th Cir. 2020). His contention that the
IJ erred to the extent she based the adverse credibility determination on the
different dates given by Wu and his mother for the above incident is also
unavailing, as an adverse credibility finding may be based on any
inconsistency, even if it does not go to the heart of the applicant’s claim. See
8 U.S.C. § 1158(b)(1)(B)(iii); Avelar-Oliva v. Barr, 954 F.3d 757, 768 (5th
Cir. 2020).
The IJ and the BIA provided specific and cogent reasons derived from
the record to support the adverse credibility finding. See Zhang, 432 F.3d at
344. Wu fails to demonstrate that, under the totality of the circumstances,
any reasonable factfinder would be compelled to find him credible, and
therefore we will defer to the agency’s adverse credibility determination. See
Singh, 880 F.3d at 225-26.
The agency’s broad adverse credibility determination is fatal to Wu’s
claims for asylum and withholding of removal. See Arulnanthy v. Garland, 17
2
Case: 21-60420 Document: 00516446159 Page: 3 Date Filed: 08/24/2022
No. 21-60420
F.4th 586, 597 (5th Cir. 2021). We do not consider Wu’s remaining
contentions regarding his claims for asylum and withholding of removal,
which concern the merits of these claims, because the BIA did not reach the
IJ’s alternative merits-based reasons for denial. See Rui Yang v. Holder, 664
F.3d 580, 584 n.3 (5th Cir. 2011).
Finally, because Wu did not present his CAT claim to the BIA, we are
without jurisdiction to review it. See Martinez-Guevara, 27 F.4th at 359-60.
PETITION FOR REVIEW DENIED IN PART AND
DISMISSED IN PART.
3