                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 12-1956


PETER SUH NGWA,

                  Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                  Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Submitted:   March 21, 2013                   Decided:   April 5, 2013


Before DAVIS, KEENAN, and THACKER, Circuit Judges.


Petition denied by unpublished per curiam opinion.


Danielle    Beach-Oswald,   Maureen     J.   Johnson,  BEACH-OSWALD
IMMIGRATION    LAW   ASSOCIATES,    PC,    Washington,  D.C.,   for
Petitioner.     Stuart F. Delery, Principal Deputy Assistant
Attorney General, Leslie McKay, Assistant Director, M. Jocelyn
Lopez Wright, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          Peter   Suh     Ngwa,    a    native   and   citizen   of    Cameroon,

petitions for review of an order of the Board of Immigration

Appeals (“Board”) dismissing his appeal from that part of the

immigration judge’s order denying his application for asylum. 1

Ngwa challenges both the adverse credibility finding and the

finding that his asylum application was frivolous.                We deny the

petition for review.

          The     Immigration          and   Naturalization      Act       (“INA”)

authorizes the Attorney General to confer asylum on any refugee.

8 U.S.C. § 1158(a) (2006).             It defines a refugee as a person

unwilling or unable to return to his native country “because of

persecution or a well-founded fear of persecution on account of

race, religion, nationality, membership in a particular social

group, or political opinion.”           8 U.S.C. § 1101(a)(42)(A) (2006).

An alien “bear[s] the burden of proving eligibility for asylum.”

Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir. 2006), and can

establish refugee status based on past persecution in his native

country   on    account     of     a     protected     ground.         8    C.F.R.

§ 1208.13(b)(1) (2012).          “An applicant who demonstrates that he

     1
       The Board did not disturb that part of the immigration
judge’s order granting Ngwa withholding of removal. The Board
remanded the case to the immigration judge for the purpose of
deciding whether Ngwa was eligible for relief under the
Convention Against Torture (“CAT”).



                                         2
was the subject of past persecution is presumed to have a well-

founded fear of persecution.”                           Ngarurih v. Ashcroft, 371 F.3d

182, 187 (4th Cir. 2004).

                A    determination           regarding        eligibility        for    asylum   is

affirmed        if    supported         by   substantial            evidence     on    the    record

considered as a whole.                  INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992).         Administrative findings of fact, including findings on

credibility,          are    conclusive        unless         any    reasonable        adjudicator

would      be       compelled      to    decide         to    the     contrary.         8     U.S.C.

§ 1252(b)(4)(B)             (2006).          Legal      issues       are   reviewed      de    novo,

“affording appropriate deference to the [Board]’s interpretation

of   the    INA       and    any   attendant            regulations.”          Li     Fang    Lin v.

Mukasey, 517 F.3d 685, 691-92 (4th Cir. 2008).                                 This court will

reverse the Board only if “the evidence . . . presented was so

compelling that no reasonable factfinder could fail to find the

requisite fear of persecution.”                              Elias-Zacarias, 502 U.S. at

483-84; see Rusu v. INS, 296 F.3d 316, 325 n.14 (4th Cir. 2002).

                Ngwa contends that the Board used the wrong standard

of review when it considered the immigration judge’s adverse

credibility          finding       under      the       totality      of   the      circumstances

test.      For asylum applications filed after the passage of the

REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302, a trier

of fact, “considering the totality of the circumstances and all

relevant factors,” may base a credibility determination on any

                                                    3
inconsistency,             inaccuracy,             or       falsehood         “without           regard    to

whether [it] goes to the heart of the applicant’s claim.”                                                   8

U.S.C.    §    1158(b)(1)(B)(iii)                   (2006).             As    this       court     recently

held,         “an         [immigration                  judge’s]             adverse            credibility

determination             need     no    longer          rest          solely      on     those       matters

fundamental         to     an      alien’s         claim         for    relief       under       the    INA.”

Singh v. Holder, 699 F.3d 321, 329 (4th Cir. 2012); see also Xiu

Xia    Lin    v.     Mukasey,           534    F.3d         162,       164    (2d        Cir.    2008)    (In

evaluating          credibility,              an    immigration              judge        “may     rely    on

omissions and inconsistencies that do not directly relate to the

applicant’s claim of persecution as long as the totality of the

circumstances establish that the applicant is not credible.”).

               After reviewing the record, we agree with the Attorney

General that (1) Ngwa waived the argument by not presenting it

to the Board and (2) the totality of the circumstances test was

appropriate          because         Ngwa’s        application               was    filed        after    the

effective          date       of   the    REAL      ID       Act.         Pursuant          to    8    U.S.C.

§ 1252(d)(1), “[a] court may review a final order of removal

only    if     .    .     .    the      alien       has      exhausted             all    administrative

remedies available to the alien as of right[.]”                                            We have noted

that “an alien who has failed to raise claims during an appeal

to the [Board] has waived his right to raise those claims before

a     federal        court         on    appeal             of     the       [Board’s]           decision.”

Farrokhi v. INS, 900 F.2d 697, 700 (4th Cir. 1990); see also

                                                        4
Gonahasa v. INS, 181 F.3d 538, 544 (4th Cir. 1999).                               Moreover,

we   have    also   held     that    we    lack      jurisdiction         to   consider   an

argument not made before the Board.                    Asika v. Ashcroft, 362 F.3d

264, 267 n.3 (4th Cir. 2004).

             Ngwa     was     on     notice         that     the    immigration         judge

considered     his    asylum        application         under       the    REAL    ID   Act.

Despite having notice, Ngwa did not challenge this determination

on appeal to the Board.             Therefore, the claim is waived.

             In any event, Ngwa’s asylum application, his second,

was filed after the REAL ID Act’s effective date.                              Ngwa’s first

asylum application was filed prior to the effective date, but it

was denied.         Ngwa filed a defensive application for asylum in

September 2006, after he received the notice to appear and after

the REAL ID Act’s effective date of May 11, 2005.                              Because the

asylum application under consideration was filed after the REAL

ID   Act’s    effective       date,       the       INA’s    most    recent       provisions

regarding credibility and corroboration apply.                            See Singh, 699

F.3d at 328.        Thus, the Board did not err applying the totality

of the circumstances test.

             Ngwa     also    contends          that        the    adverse      credibility

finding is not supported by substantial evidence.                                 We review

credibility findings for substantial evidence.                            A trier of fact

who rejects an applicant’s testimony on credibility grounds must

offer “specific, cogent reason[s]” for doing so.                                Figeroa v.

                                                5
INS, 886 F.2d 76, 78 (4th Cir. 1989).                  “Examples of specific and

cogent    reasons     include    inconsistent          statements,    contradictory

evidence,       and   inherently    improbable         testimony.”       Tewabe      v.

Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (internal quotation

marks and citations omitted).             This court accords broad, though

not unlimited, deference to credibility findings supported by

substantial evidence.            Camara v. Ashcroft, 378 F.3d 361, 367

(4th Cir. 2004).         If the immigration judge’s adverse credibility

finding    is    based    on   speculation       and     conjecture    rather    than

specific and cogent reasoning, however, it is not supported by

substantial evidence.          Tewabe, 446 F.3d at 538.

            We conclude that it is clear from the record that the

immigration      judge   found    Ngwa    was    not    credible     insofar    as    he

claimed he suffered past persecution.                   We further conclude that

the adverse credibility finding was supported by specific and

cogent reasons.          It was noted that Ngwa offered inconsistent

testimony regarding the number of days he was detained in 2004.

It was also noted that Ngwa’s two witnesses offered inconsistent

testimony regarding the events that supported Ngwa’s claim that

he was the victim of past persecution.                  Also, Ngwa’s testimonial

demeanor was called into question.                In addition, Ngwa submitted

a fraudulent medical certificate in support of his claim that he

suffered injuries during a period of detention.                    The immigration

judge     was     free    to     reject       Ngwa’s     explanations     for        the

                                          6
discrepancies.      Dankam v. Gonzales, 495 F.3d 113, 122 (4th Cir.

2007); Camara, 378 F.3d at 369.

            Ngwa    also        challenges       the    ruling    that    his   asylum

application was frivolous.               An alien who “has knowingly made a

frivolous application for asylum,” after having been informed of

the    consequences        of     submitting       such     an     application,       is

permanently      ineligible       for    immigration       benefits.        8   U.S.C.

§ 1158(d)(6) (2006).            An asylum application is frivolous if any

of its material elements is deliberately fabricated.                         8 C.F.R.

§ 1208.20       (2008).          The    Government        bears    the     burden     of

establishing that the application is frivolous.                     Matter of Y-L-,

24 I. & N. Dec. 151, 157-58 (B.I.A. 2007).                         “Because of the

severe consequences that flow from a frivolousness finding, the

preponderance      of     the     evidence       must    support    an    Immigration

Judge’s finding that the respondent knowingly and deliberately

fabricated material elements of the claim.”                        Id., 24 I. & N.

Dec. at 157.       The alien must be afforded sufficient opportunity

to    explain     the     identified         discrepancies,       after    which    the

immigration judge must provide cogent and convincing reasons for

finding by a preponderance of the evidence that the applicant

knowingly and deliberately fabricated material elements of his

or her claim.       Id. at 158-60.

            A    finding    that       the   applicant     knowingly      submitted    a

false or fraudulent submission that was material to the asylum

                                             7
application       is     a     finding    of      fact    that      is   reviewed     for

substantial evidence. 2           See Siddique v. Mukasey, 547 F.3d 814,

816 (7th Cir. 2008); Aziz v. Gonzales, 478 F.3d 854, 857 (8th

Cir. 2007).

            Ngwa       argues    that     his     right   to      confidentiality    was

violated during the course of the overseas investigation that

led   to   the    finding       that     he   submitted       a   fraudulent    medical

certificate.       Under 8 C.F.R. § 208.6(a) (2012), “[i]nformation

contained in or pertaining to any asylum application . . . shall

not be disclosed without the written consent of the applicant,

except as permitted by this section or at the discretion of the

Attorney General.”            Confidentiality is breached when information

pertaining    to    an       asylum    application       is   disclosed   to   a    third

party in such a way that allows the third party to link the

identity of the alien to the fact that the alien has applied for

asylum.      See U.S. Citizenship and Immigration Servs., Asylum

Div.,      Fact     Sheet:        Federal         Regulations        Protecting      the

Confidentiality of Asylum Applicants (June 3, 2005).                           If it is

found that the asylum applicant’s confidentiality was breached


      2
       A finding that an asylum application is frivolous does not
preclude the alien from seeking withholding of removal.     See 8
C.F.R. § 1208.20 (2012); see also Lin v. U.S. Dep’t of Justice,
455 F.3d 106, 112 n.2 (2d Cir. 2006) (statute barring all
immigration benefits should not be construed to bar withholding
of removal where deportation would result in dire persecution).



                                              8
in   violation       of   §   208.6,    the       applicant    must   be     given   the

opportunity to establish a new claim for asylum, withholding of

removal, or relief under the CAT based on the breach.                           Anim v.

Mukasey, 535 F.3d 243, 253 (4th Cir. 2008).

              The Board addressed this claim by noting that Ngwa was

raising   a    new    argument      that     he    failed     to   raise    before   the

immigration     judge.        The   Board        concluded     that   the    issue   was

waived and will not be reviewed because Ngwa did not raise it

before the immigration judge, citing In re J-Y-C-, 24 I. & N.

Dec. 260, 261 n.1 (BIA 2007) and In re Edwards, 20 I. & N. Dec.

191, 196-97 n.4 (BIA 1990).                “[T]he failure to raise an issue

before the [immigration judge] properly waives the argument on

appeal to the [Board].”             Torres de la Cruz v. Maurer, 483 F.3d

1013, 1023 (10th Cir. 2007) (finding that the Board properly

concluded that the issue was procedurally barred and, for the

same reason, declined to address the issue).

              Ngwa argues that the issue was not waived because the

immigration judge ruled on the substance of the claim, finding

that   his     confidentiality         was       not   violated.       However,      the

immigration judge also noted that Ngwa did not affirmatively

raise this issue and denied relief on the basis that Ngwa did

not claim that his confidentiality was violated.                            We conclude

that the Board, when faced with two possible rulings that result

in the same disposition, can choose to affirm one and ignore the

                                             9
other.      This court may affirm the Board’s order on the same

basis that was articulated by the Board.                        See Moab v. Gonzales,

500 F.3d 656, 659 (7th Cir. 2007).                       We conclude that the Board

did   not    err    in     finding     that       the    confidentiality              issue    was

waived.

             Ngwa also asserts that the immigration judge erred by

denying his motion to subpoena the agent responsible for the

overseas     investigation.            This       court    reviews         the    immigration

judge’s     denial    of     a   subpoena      for      abuse    of       discretion.          See

Kaur v.     INS,    237     F.3d    1098,     1099      (9th    Cir.       2001);       see    also

Guevara     Flores    v.     INS,    786    F.2d     1242,      1252      (5th        Cir.    1986)

(same).      Under 8 C.F.R. § 1287.4(a)(2)(ii)(B) (2012), an alien

seeking     a      subpoena        “shall     be     required         .     .     .     to     show

affirmatively        that    he/she     has       made    diligent         effort,       without

success, to produce the same.”                 The immigration judge found, and

the Board agreed, that Ngwa did not affirmatively show that he

made a diligent effort to produce the witness.                                   We note that

Ngwa’s    claim     that    the     Government       stated      that       it    intended      to

produce the witness is not supported by the record.                                      Because

Ngwa did not show he was diligent in this regard, we conclude

that it was not an abuse of discretion to deny the subpoena.

             We    also     conclude       that    substantial         evidence         supports

the finding that the Government showed by a preponderance of the

evidence that Ngwa knowingly submitted a fraudulent document in

                                              10
support of a material aspect of his claim that he suffered past

persecution.      The Government submitted an affidavit signed by

the    doctor    who       signed       the     medical       certificate.              In       the

affidavit, the doctor admitted that he did not treat Ngwa, that

the contents of the medical certificate were dictated to him and

that he only prepared the medical certificate as a favor to

Ngwa’s   wife.        In    his     affidavit        submitted           in   response,       Ngwa

corroborated a portion of the doctor’s admission, when he stated

that    he   waited    outside          the    doctor’s       office          while   his     wife

entered the office with the certificate for the doctor to sign.

The    medical   certificate            was    intended       to    support       a     material

aspect of Ngwa’s claim that he suffered serious injuries as a

result of being persecuted by the authorities.

             We also note that despite being given the opportunity,

Ngwa    failed   to    specifically             challenge      the        contents       of      the

doctor’s     affidavit,       either          through   his        own    testimony         or    an

affidavit from his wife.                We conclude that the finding that Ngwa

filed a frivolous asylum application was not made in violation

of his right to due process.

             In light of the fact that we conclude that the adverse

credibility      finding          and     the       finding        that        Ngwa’s     asylum

application was frivolous are supported by substantial evidence,

Ngwa’s remaining arguments are moot.



                                               11
           We deny the petition for review.                 We dispense with

oral   argument   because     the    facts   and   legal     contentions    are

adequately   presented   in    the    materials    before    this   court   and

argument would not aid the decisional process.

                                                              PETITION DENIED




                                      12
