Sicino Dube v. Eric Holder, Jr.

Case: 13-60207 Document: 00512515393 Page: 1 Date Filed: 01/29/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60207
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
January 29, 2014
SICINO DUBE,
Lyle W. Cayce
Clerk
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. A087 038 728
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
Sicino Dube, a citizen and native of Zimbabwe, petitions for review of the
order of the Board of Immigration Appeals (BIA) dismissing his appeal from
the order of the immigration judge (IJ) denying his applications for asylum,
withholding of removal, and withholding of removal under the Convention
Against Torture (CAT), and ordering him removed to Zimbabwe. The BIA
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-60207
adopted the findings of the IJ that Dube’s application for asylum was untimely
and that Dube’s testimony was not credible.
Dube argues that the IJ and BIA erred by denying his requests for
asylum and withholding of removal because the adverse credibility
determination was unwarranted. Dube does not challenge the BIA’s
determination that the asylum application was untimely. Accordingly, Dube
has waived any challenge he could have raised to the denial of his request for
asylum. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987). Dube has also failed to challenge the BIA’s denial of his
request for withholding of removal under the CAT. As Dube has not briefed
this issue, he has waived it. See Chambers v. Mukasey, 520 F.3d 445, 448 n.1
(5th Cir. 2008).
Without citation to any authority, Dube argues that the refusal of the
BIA and IJ to consider the letters he submitted from his mother and his sister
violated his due process rights. He contends that he explained why the letters
were not timely filed because of the difficulty he had obtaining evidence from
Zimbabwe.
The IJ gave Dube clear warning regarding the deadline for submitting
supporting documentation, and Dube did not timely submit the letters from
his mother and his sister. Immigration regulations provide that immigration
judges have the authority to set deadlines for submitting documentation and
that if documents are not timely filed, “the opportunity to file that application
or document shall be deemed waived.” 8 C.F.R. § 1003-31(c). Furthermore,
the letters were unsworn and typed, with no indications that they were
authentic, making their evidentiary value dubious. Accordingly, Dube has not
shown that there was a due process violation. Cf. Ovalles v. Holder, 577 F.3d
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288, 299-300 (5th Cir. 2009) (holding that BIA’s refusal to consider untimely
motion to reopen or reconsider did not violate alien’s due process rights).
Dube argues that the BIA and IJ erred by denying his request for
withholding of removal based upon the determination that his testimony was
not credible and unsupported by corroborating evidence. He maintains that
uncorroborated but credible testimony is sufficient to show eligibility for
withholding of removal. He contends that his testimony was detailed and
credible and it described his genuine fear of future persecution. He asserts
that minor discrepancies in an alien’s testimony regarding matters not
material to the claim for relief cannot support an adverse credibility finding
and that this makes the BIA’s and IJ’s adverse credibility finding erroneous.
The REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005),
amended the standards for assessing credibility and applies to applications,
like Dube’s, filed after May 11, 2005, the Act’s effective date. Wang v. Holder,
569 F.3d 531, 537 (5th Cir. 2009). Under the new standards, the BIA or “an 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.” Id. at 538-39 (internal quotation marks and
emphasis omitted) (adopting and quoting Xiu Xia Lin v. Mukasey, 534 F.3d
162, 167 (2d Cir. 2008)). “We defer therefore to an IJ’s credibility
determination 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).
Dube’s argument that the IJ and BIA erred by basing the adverse
credibility finding on inconsistencies in matters that were not material to his
claims for relief is based upon pre-REAL ID Act law and is without merit. See
id. at 538-39. Dube’s testimony and application for relief contained several
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inconsistencies concerning when his sister was granted asylum in the United
Kingdom, why Dube did not produce his Movement for Democratic Change
party membership card, and the circumstances of the leasing of Dube’s family
farm in 2004. Dube was unable to produce corroborating evidence to which he
acknowledged he had access, such as his father’s death certificate.
Additionally, Dube had previously sought legal permanent resident status
based upon a marriage to a United States citizen that Citizen and Immigration
Services found to be fraudulent. Accordingly, the totality of the circumstances
do not compel a finding that Dube was credible, and we must, therefore, accept
the credibility determination of the IJ and BIA. See id. As Dube has not shown
that he produced credible evidence demonstrating a clear probability that he
will be subjected to persecution if he returned to Zimbabwe, he has not shown
that he was entitled to withholding of removal. See Kane v. Holder, 581 F.3d
231, 238 (5th Cir. 2009).
PETITION FOR REVIEW DENIED.
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