     Case: 09-60150     Document: 00511033864          Page: 1    Date Filed: 02/23/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 23, 2010

                                     No. 09-60150                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



AAMIR AHMED,

                                                          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. A88 060 275


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Petitioner Aamir Ahmed (“Ahmed”), a native and citizen of Pakistan, seeks
review of an order of the Board of Immigration Appeals (“BIA”).                     The BIA
dismissed Ahmed’s appeal of the Immigration Judge’s (“IJ”) denial of his
applications for withholding of removal, protection pursuant to the regulations




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-60150    Document: 00511033864      Page: 2    Date Filed: 02/23/2010


                                  No. 09-60150

under the United Nations Convention Against Torture (“CAT”), and cancellation
of removal. We deny the petition.
                               I. BACKGROUND
      Ahmed is a native and citizen of Pakistan, who was admitted to the United
States as a temporary visitor on or about April 24, 1995. On April 27, 2007, the
Department of Homeland Security (“DHS”) served Ahmed with a Notice to
Appear (“NTA”), charging him with removability pursuant to section 237(a)(1)(B)
of the INA, 8 U.S.C. § 1227(a)(1)(B), as an alien who remained in the United
States for a time longer than permitted. The DHS also charged Ahmed with
removability pursuant to section 237(a)(3)(D) of the INA, 8 U.S.C. §
1227(a)(3)(D), as an alien who falsely represented himself to be a citizen of the
United States in order to obtain a benefit under the INA or any other federal
law. This charge arose out of Ahmed falsely representing himself to be a U.S.
citizen in order to obtain a voter registration certificate in Harris County, Texas.
On September 19, 2007, Ahmed appeared before the IJ, admitting the
allegations in the NTA but denied removability pursuant to section 237(a)(3)(D).
At a hearing regarding that charge, the IJ found that the Government met its
burden of proving that Ahmed submitted the voter registration application by
clear and convincing evidence.
      On March 20, 2008, Ahmed appeared again in Immigration Court for a
merits hearing regarding his applications for withholding of removal and
protection pursuant to CAT based on religion. He claimed that as a former
Muslim, who converted to Christianity, he feared persecution if returned to
Pakistan. He also sought a cancellation of removal.
      To support his applications, Ahmed testified that he feared that he would
be killed by either his family or another Muslim if he returned to Pakistan
because he is now a Christian.      When questioned about the circumstances
surrounding his conversion to Christianity, Ahmed claimed that he decided to

                                         2
     Case: 09-60150   Document: 00511033864    Page: 3   Date Filed: 02/23/2010


                                  No. 09-60150
become a Christian while in the hospital in the wake of a beating he suffered in
New York. He also testified that he attended church regularly but had not been
in three or four months.
        Moreover, during his testimony Ahmed claimed that his removal would
result in exceptional and extremely unusual hardship to his young daughter, a
United States citizen. He testified that he would not be able to bring her with
him to Pakistan because his family or other Muslims will kill her because she is
a Christian. When questioned about allegedly signing the voter registration
certificate claiming to be a United States citizen, he admitted that the signature
appeared to be his own but claimed that a cousin might have forged his
signature because he was jealous of him.
        The IJ denied Ahmed’s application for withholding of removal and
protection pursuant to CAT because he found that Ahmed’s testimony was not
credible due to numerous inconsistencies.        The IJ also noted that even if
Ahmed’s testimony was true, his application for withholding and protection
pursuant to CAT would not be granted because he did not demonstrate an
objective clear probability of persecution if returned to Pakistan or that it is
more likely than not that he will be persecuted or tortured upon his return there.
The IJ also denied Ahmed’s application for cancellation of removal.
                                II. DISCUSSION
A.      Withholding of Removal and CAT Claim
        We review the BIA’s denial of an application for withholding of removal
and protection under CAT under the substantial evidence test. Under this
standard of review, reversal is improper unless we decide “not only that the
evidence supports a contrary conclusion, but also that the evidence compels it.”
Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005) (citing Chun v. INS, 40 F.3d
76, 78 (5th Cir. 1994). We review the BIA’s decision and only consider the IJ’s



                                        3
   Case: 09-60150   Document: 00511033864      Page: 4   Date Filed: 02/23/2010


                                  No. 09-60150
decision to the extent that it impacted the BIA’s determination. Wang v. Holder,
569 F.3d 531, 536 (5th Cir. 2009).
      In this case, the IJ denied Ahmed’s petition for withholding of removal and
protection under CAT because he had failed to meet his burden of proving
eligibility by providing credible evidence to support his claims . The Real ID Act
of 2005 allows the trier of fact to make a credibility determination “without
regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart
of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). Adverse credibility
determinations must be supported by specific and cogent reasons derived from
the record. Zhang v. Gonzalez, 432 F.3d 339 (5th Cir. 2005).
      The IJ determined that Ahmed was not credible, and he fails to show, as
he must to prevail on review, that the record evidence compels the contrary
conclusion. The IJ cited numerous instances of material inconsistencies in
Ahmed’s testimony. For instance, while Ahmed indicated in his asylum
application that he was forced to practice Islam under the threat of death, and
that he protested against this, he denied that he protested against Islam in his
testimony. While he claimed to fear persecution in Pakistan because of his
purported religious conversion, Ahmed’s testimony was also inconsistent
concerning his church attendance. He initially claimed that he did not attend
church regularly, but later stated that he attended three different churches
although he could not recite basic information about any of the churches,
including their names or locations. Moreover, the record reveals significant
discrepancies regarding how exactly Ahmed’s signature appeared upon the voter
registration certificate, his knowledge concerning when his visa expired, and
reasons for staying in the United States after his visa expired.
      On appeal, Ahmed first argues that the IJ erred because any
inconsistencies in his testimony regarding whether he converted to Christianity
were inconsequential. This argument has no merit. The central reason why

                                        4
     Case: 09-60150   Document: 00511033864     Page: 5    Date Filed: 02/23/2010


                                  No. 09-60150
Ahmed claimed that his removal should be withheld is because he allegedly
would be persecuted upon his return to Pakistan because of his conversion to
Christianity. Thus, any inconsistencies in his testimony concerning his religious
conversion were material, particularly since he alleged that he would be tortured
because of it.
        Ahmed next argues that the various inconsistencies in his testimony that
the IJ noted were the result of his inability to understand English. Because
Ahmed did not raise this argument before the BIA, he has not exhausted his
administrative remedies. As such, this court lacks jurisdiction to consider this
argument. See 8 U.S.C. § 1252(d)(1); Wang v. Ashcroft, 260 F.3d 448, 452-53
(5th Cir. 2001). Similarly, we lack jurisdiction to address Ahmed’s argument
that the IJ erred because he mistakenly referenced “Lebanon” rather than
“Pakistan” while discussing country conditions for Christians. The BIA, in
reviewing the IJ’s decision, did not adopt the IJ’s discussion of current country
conditions in Pakistan, which included the mistaken reference to Lebanon rather
than Pakistan. See Girma v. INS, 283 F.3d 664, 666 (5th Cir. 2002) (where the
BIA does not adopt the decision of the IJ, the IJ’s decision is not before the court
on review).
B.      Cancellation of Removal
        The Attorney General has discretion to cancel the removal of a
non-permanent resident if the alien has shown: (1) a continuous physical
presence of not less than 10 years; (2) good moral character; (3) a lack of certain
criminal convictions; and (4) exceptional and extremely unusual hardship to a
qualifying relative. INA § 240A(b); 8 U.S.C. § 1229b(b). On appeal, Ahmed’s
claims that the IJ abused its discretion by denying his cancellation of removal,
and ruling that Ahmed had not established that his removal would result in
“exceptional and extremely unusual hardship” to his child pursuant to section
240A(b)(1)(D) of the INA, 8 U.S.C. § 1229b(b)(1)(D).

                                         5
   Case: 09-60150        Document: 00511033864   Page: 6    Date Filed: 02/23/2010


                                    No. 09-60150
      Pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), this court does not have
jurisdiction to review “any judgment regarding the granting of relief under
section . . . 229b.” This provision is not applicable where the appeal involves
constitutional claims or questions of law. See 8 U.S.C. § 1252(a)(2)(D). Ahmed’s
request for cancellation of removal, however, involves neither. Therefore, this
court does not have jurisdiction to review the IJ’s discretionary determination
that Ahmed’s daughter, who is an American citizen, would not suffer an
“exceptional and extremely unusual hardship” by his removal. See Rueda v.
Ashcroft, 380 F.3d 831, 831 (5th Cir. 2004); Mireles-Valdez v. Ashcroft, 349 F.3d
213, 216 (5th Cir. 2003).
      Our holding that we lack jurisdiction to review one of the four threshold
eligibility factors under § 240A(b) is a sufficient basis alone for us to affirm the
IJ’s denial of relief.    For this reason, we need not address the other grounds
upon which Ahmed challenges the IJ’s decision.             See Garcia- Melendez v.
Ashcroft, 351 F.3d 657, 661 (5th Cir. 2003).
                                 III. CONCLUSION
      For the reasons stated above, we DENY the petition for review.




                                          6
