     Case: 15-60259      Document: 00513659695         Page: 1    Date Filed: 08/31/2016




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

                                                                                 FILED
                                    No. 15-60259                           August 31, 2016
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
JOHN ERICK ODHIAMBO; SUSAN AOKO ODHIAMBO; MIKELOVELY
OTIENO ODHIAMBO; DARYLL OMONDI ODHIAMBO,

                                                 Petitioners

v.

LORETTA LYNCH, UNITED STATES ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                              BIA Nos. A094-075-450
                                        A097-683-087
                                        A097-683-095
                                        A097-871-657


Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       John Erick Odhiambo (Odhiambo), his wife, Susan Aoko Odhiambo, and
two of his children, Mikelovely Otieno Odhiambo and Daryll Omondi
Odhiambo, natives and citizens of Kenya, filed a timely petition for review of



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-60259

the Board of Immigration Appeals’ (BIA’s) dismissal of their appeals of the
immigration judge’s (IJ’s) denial of their applications for asylum, withholding
of removal, and withholding of removal under the Convention Against Torture
(CAT). The BIA consolidated the cases and issued one decision. The BIA noted
that all of the claims were based on the persecution claims of Odhiambo.
      The BIA affirmed the IJ’s conclusion that the applications for asylum
were untimely. The Odhiambos abandon the issue here by not briefing it. See
Justiss Oil Co. v. Kerr-McGee Ref. Corp., 75 F.3d 1057, 1067 (5th Cir. 1996).
      The IJ also concluded Odhiambo and his wife were not credible
witnesses. The BIA did not address the credibility finding but considered that
all of the testimony was credible in addressing the appeal. Accordingly, we
will not consider the challenge to the IJ’s credibility ruling because the BIA did
not consider it. See Yang v. Holder, 664 F.3d 580, 584 n.3 (5th Cir. 2011), cert
denied, 132 S. Ct. 2772 (2012).
      “Withholding of removal is a higher standard than asylum.”           Efe v.
Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002).        Concerning withholding of
removal, petitioners claim the denial is not supported by substantial evidence.
Under the substantial-evidence standard, “reversal is improper unless we
decide not only that the evidence supports a contrary conclusion, but [also] that
the evidence compels it”. Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005)
(internal quotation marks and citation omitted).
      Odhiambo testified he suffered persecution, the standard for asylum,
when he visited his village in 1997 and 1999. He stated that, in 1997, he was
threatened and was locked in a house as it was set on fire, though he was able
to escape. In 1999, his brother’s house was burned after Odhiambo left the
village. Odhiambo testified that neither he nor his family were physically
harmed while in Kenya. This evidence was insufficient to compel a reasonable



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                                  No. 15-60259

factfinder to determine that Odhiambo suffered past persecution. See Abdel-
Masieh v. INS, 73 F.3d 579, 583–84 (5th Cir. 1996) (our court saw no error
when the BIA found beatings during unfounded arrests did not constitute past
persecution because they were not severe and the arrests were seemingly
random). Odhiambo offers no additional evidence of past persecution. The
challenge to the BIA’s determination that Odhiambo did not suffer past
persecution is without merit.
      Absent evidence of past persecution, an alien must establish a well-
founded fear of future persecution by showing a subjective fear of persecution
that is also objectively reasonable to obtain asylum. See Zhao v. Gonzales, 404
F.3d 295, 306–07 (5th Cir. 2005). An applicant for withholding of removal
bears the burden to demonstrate that it is “more likely than not” that his or
her life or freedom would be threatened by persecution. Efe, 293 F.3d at 907
(quoting 8 C.F.R. § 208.16(c)(2)).     The substantial evidence in the record
supports the BIA’s determination that petitioners have not shown a likely
future threat to life or freedom if they return to Kenya.
      The Odhiambos also challenge the BIA’s denial of relief under the CAT.
To obtain relief under the CAT, an applicant must demonstrate, inter alia, that
it is “more likely than not” that he or she would be tortured if he or she returned
to his or her home country. Zhang, 432 F.3d at 344–45 (quoting Ontunez-
Tursios v. Ashcroft, 303 F.3d 341, 354 (5th Cir. 2002)).          The substantial
evidence in the record does not show that it is more likely than not that the
petitioners will be subject to torture if they return to Kenya.
      DENIED.




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