                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                    July 8, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-60850
                          Summary Calendar


SOLEMAN LAKHANI; NAJMA SOLEMAN LAKHANI,

                                    Petitioners,

versus

JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

                                    Respondent.

                        --------------------
               Petition for Review of an Order of the
                    Board of Immigration Appeals
                        BIA No. A93-086-770
                        BIA No. A77-404-396
                        --------------------

Before WIENER, DeMOSS, and PICKERING, Circuit Judges.

PER CURIAM:*

     Soleman Lakhani and his wife, Najma Soleman Lakhani, both

citizens of India, appeal from the Board of Immigration Appeals’

(BIA) denial of their applications for asylum, withholding of

removal, withholding of removal under the Convention Against

Torture (CAT), cancellation of removal, and voluntary departure.

The Lakhanis also appeal from the BIA’s denial of their motion to

remand their applications for cancellation of removal.       Because

the BIA adopted the decision of the immigration judge (IJ), this

     *
        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that this opinion should not be published and is not precedent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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court has jurisdiction to review the IJ’s decision.     See Efe v.

Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002).

Waiver of timeliness of asylum applications and eligibility for
cancellation of removal and voluntary departure

     The BIA confirmed the IJ’s determination that the Lakhanis’

asylum applications were untimely filed and that they failed

to qualify for any exception to the limitations period.

See 8 C.F.R. § 208.4(a)(2); 8 U.S.C. § 1158(a)(2)(B), (D).

The Lakhanis have failed to brief the merits of this

determination, therefore they have waived the issue on appeal.

See Rodriguez v. INS, 9 F.3d 408, 414 n.15 (5th Cir. 1993);

Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

     Likewise, the Lakhanis have failed to brief the merits of

the IJ’s denial of their applications for cancellation of removal

and voluntary departure.    The BIA affirmed the IJ’s determination

that the Lakhanis were ineligible for cancellation of removal

because their asylum and withholding of removal applications

were frivolous, Soleman had a prior conviction for felony credit

card abuse, and Najma had failed to demonstrate an exceptional

hardship on her children in the event of her removal.    The BIA

further affirmed the IJ’s determination that the Lakhanis failed

to establish by clear and convincing evidence their intention to

depart the United States.   The Lakhanis have waived these issues

on appeal.   See Rodriguez, 9 F.3d at 414 n.15; Yohey, 985 F.2d

at 224-25.
                              No. 03-60850
                                   -3-

Withholding of removal

     The Lakhanis argue that the BIA erred in relying upon the

IJ’s determination that their asylum and withholding of removal

applications were frivolous.     They further contend that the IJ

failed to afford them an opportunity to explain their submission

of a fraudulent newspaper article in support of their

applications.

     The IJ’s conclusion that the Lakhanis are not eligible

for withholding of removal is a factual determination that

is reviewed under the substantial evidence standard.        See Efe,

293 F.3d at 906.    Under that standard, this court may not reverse

a factual determination unless it finds that the evidence compels

a contrary conclusion.      See Chun v. INS, 40 F.3d 76, 78 (5th Cir.

1994).   With respect to credibility determinations, “[i]t is the

factfinder’s duty to make determinations based on the credibility

of witnesses.”     Id.   This court cannot substitute its judgment

for that of the BIA or IJ with respect to witness credibility or

ultimate factual findings based on credibility assessments.         Id.

“An asylum application is frivolous if any of its material

elements is deliberately fabricated.”        8 C.F.R. § 208.20.

     The IJ’s denial of the Lakhanis’ applications for

withholding of removal, based in part on a lack of credibility

and in part on inconsistent documentation, is supported by

substantial evidence.      See Efe, 293 F.3d at 906.    Soleman’s

testimony regarding the nature of his entry into the United
                             No. 03-60850
                                  -4-

States, the use of aliases, the filing of tax returns, former

addresses, number of family members, and former accounts of

physical and sexual abuse in India are markedly inconsistent

with the responses given on his application for withholding of

removal.    Similarly, the Lakhanis do not dispute that Najma gave

testimony regarding her entry into the United States that was

inconsistent with her written application for withholding of

removal.    Finally, the Lakhanis conceded that they submitted

a false newspaper article in support of their assertion that

Najma’s brother intended to kill them upon their return to

India.   In contrast to their assertions, the record reflects

that the IJ gave the Lakhanis ample opportunity to explain these

discrepancies.    Based upon the inconsistent testimony given by

the Lakhanis, coupled with the fraudulent documentation, the

IJ’s dismissal of their withholding of removal applications as

frivolous is supported by substantial evidence.    See Efe, 293,

F.3d at 908.

CAT claim

     The Lakhanis argue that the BIA erred in failing to grant

them relief under the CAT.    The Lakhanis contend that the IJ

erroneously determined that they were not credible witnesses

based on only a few inconsistencies between their written asylum

applications and their testimony.

     Withholding of removal under the Convention is provided for

in 8 C.F.R. § 208.16(c).    The CAT provides that “[n]o State Party
                            No. 03-60850
                                 -5-

shall expel, return . . . or extradite a person to another State

where there are substantial grounds for believing that he would

be in danger of being subjected to torture.”     Efe, 293 F.3d at

907 (citation omitted).    Torture is the intentional infliction of

severe mental or physical pain, by a governmental official, on a

victim for the purpose of obtaining information, intimidation,

punishment, or discrimination.    See 8 C.F.R. § 208.18(a)(1).

       The record does not reflect that it is more likely than not

that the Lakhanis would be tortured if they were returned to

India.    The Lakhanis have abandoned their arguments of religious

persecution in their brief and, in any event, their account of

their inability to practice their religion is inconsistent with

their testimony.    Similarly, the Lakhanis’ fear of threats from

Najma’s brother fails to meet the definition of torture under the

CAT.    See 8 C.F.R. § 208.18(a)(1).   Accordingly, denial of the

Lakanis’ CAT claim was proper.

Motion to remand

       The Lakhanis argue that the BIA erred in denying their

motion to remand their applications for cancellation of removal.

They assert that the decision to deny their applications for

cancellation of removal was not considered on the merits but

solely on the basis of the IJ’s erroneous determination that

their asylum applications were frivolous.

       The BIA applies the same standards to a motion to remand

as it does to a motion to reopen, and this court reviews both
                            No. 03-60850
                                 -6-

motions for abuse of discretion.    Ogbemudia v. INS, 988 F.2d 595,

600 (5th Cir. 1993); see INS v. Doherty, 502 U.S. 314, 322-23

(1992).   The BIA’s decision to reopen a deportation proceeding is

discretionary; however, the BIA lacks the authority to reopen

deportation proceedings unless the alien alleges new, material

facts supported by affidavits or other evidence which establish

a prima facie case that the alien is eligible for the relief

sought.   Bahramnia v. INS, 782 F.2d 1243, 1245 (5th Cir. 1986).

     The Lakhanis are mistaken that the IJ rejected their

application for cancellation of removal solely on the ground that

they had filed frivolous asylum applications.    In its denial of

their request for cancellation of removal, the IJ also referenced

their ineligibility for such relief due to Soleman’s prior felony

credit card conviction and Najma’s failure to establish hardship

upon her children.   Further, the Lakhanis fail to identify with any

specificity the new evidence in support of their motion to remand

or to supply supporting affidavits explaining how the evidence is

material to their cancellation of removal claim.    See Bahramnia,

782 F.2d at 1245.    The BIA did not abuse its discretion in

denying the Lakanis’ motion to reopen.     See Ogbemudia, 988 F.2d

at 600.   For the foregoing reasons, the Lakanis’ consolidated

petition for review is DENIED.
