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

                                                FILED
                                                                 June 1, 2009
                               No. 08-60534
                             Summary Calendar                Charles R. Fulbruge III
                                                                     Clerk

AMIREHSAN KHAEF

                                           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. A99 213 028


Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
      Amirehsan Khaef, a native and citizen of Iran, petitions this court for a
review of a decision of the Board of Immigration Appeals (BIA) dismissing his
appeal of an order of an Immigration Judge (IJ) that denied his application for
withholding of removal and relief under the Convention Against Torture (CAT).
The IJ denied Khaef’s application after finding that Khaef was not a credible
witness. Alternatively, the IJ ruled that even if Khaef’s testimony had been



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-60534

credible, Khaef had not demonstrated eligibility for relief. The BIA concluded,
without reaching the merits of the IJ’s alternate holding, that Khaef had failed
to meet his burden of proving eligibility for withholding of removal or relief
under the CAT because Khaef had failed to provide credible evidence in support
of his claims.
      Khaef now argues that the IJ erred in finding that he had passed a
security clearance in Iran and had been the subject of proper police action. The
Government argues that we may not rule on this issue because Khaef failed to
raise it before the BIA.
      A court can review a final order of removal only when “the alien has
exhausted all administrative remedies available to the alien as of right.” 8
U.S.C. § 1252(d)(1). “Failure to exhaust an issue creates a jurisdictional bar as
to that issue.” Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004). “An alien fails
to exhaust his administrative remedies with respect to an issue when the issue
is not raised in the first instance before the BIA - either on direct appeal or in a
motion to reopen.” Id. Becase Khaef did not raise these factual challenges in a
proceeding before the BIA, we may not consider them now. See id.
      Khaef also argues that the IJ erred in finding that he was not a credible
witness. He argues that the IJ’s finding that he had a propensity towards fraud
because of his prior marriage fraud conviction and the discrepancies between his
oral and written assertions were insufficient to find him incredible under the
totality of the circumstances.
      Because Khaef filed his application for relief in 2006, this case is governed
by the new standards set forth in the REAL ID Act for evaluating witness
credibility in asylum and withholding of removal cases.              See 8 U.S.C.
§ 1158(b)(1)(B)(ii), (iii); 8 U.S.C. § 1231(b)(3)(C); REAL ID Act § 101(h)(2), Pub.
L. 109-13, 119 Stat. 302, 305. It is the factfinder’s duty to make determinations
based on the credibility of the witnesses, and this court cannot substitute its
judgment for that of the BIA or IJ with respect to factual findings based on

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credibility determinations. Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994). A
credibility finding is a finding of fact that is reviewed for substantial evidence.
See Vidal v. Gonzales, 491 F.3d 250, 254 (5th Cir. 2007). Under substantial
evidence review, this court may not reverse a finding unless the evidence
compels it. INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992).
      Khaef submitted an initial application denying mistreatment and an
amended application in which he alleged that he was merely harassed and
questioned. At his hearing, Khaef first alleged that he had been detained once
for two days and once for three days and that he was beaten during the first of
these detentions. The IJ found the discrepancy between Khaef’s oral and written
assertions significant because the assertions went to the heart of Khaef’s claims
for relief.   The IJ also noted that Khaef had been previously convicted of
marriage fraud in an attempt to gain immigration benefits, and the IJ found
that this conviction demonstrated a propensity towards fraud. Considering the
totality of the circumstances, the evidence in this case does not compel reversal
of the IJ’s adverse credibility determination. See Elias-Zacarias, 502 U.S. at
483-84; see also § 1158(b)(1)(B)(iii) (specifying criteria allowing petitioner’s
credible testimony to constitute sole support for sustaining burden of proving
eligibility for asylum).
      Because “[w]e cannot substitute our judgment for that of the BIA or IJ
with respect to the credibility of the witnesses or ultimate factual findings based
on credibility determinations . . . we will not review decisions turning purely on
the immigration judge’s assessment of the alien petitioner’s credibility.” Chun,
40 F.3d at 78. The denial of relief in this case was based on the finding that
Khaef failed to provide a plausible claim, and the adverse credibility
determination was supported by substantial evidence. We therefore decline to
review the decision denying relief in this case. See id.
      The petition for review is DISMISSED IN PART for lack of jurisdiction
and DENIED IN PART.

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