     Case: 11-60542     Document: 00511857473         Page: 1     Date Filed: 05/16/2012




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

                                                                            FILED
                                                                           May 16, 2012
                                     No. 11-60542
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

HOUNKPATI YOUSSIF SOUNOU,

                                                  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. A099 273 205


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Hounkpati Youssif Sounou, a native and citizen of Togo, petitions for
review of a decision by the Board of Immigration Appeals (BIA) dismissing his
application for asylum, withholding of removal, or relief under the Convention
Against Torture (CAT). Sounou sought relief on the grounds that he had been
arrested and tortured by government officials in Togo in the past, based on his
membership in the Union of Forces for Change (UFC), a political opposition
group, and that he would be killed by government officials if he is removed to
Togo.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-60542    Document: 00511857473      Page: 2   Date Filed: 05/16/2012

                                  No. 11-60542

      The IJ concluded that Sounou’s asylum application was time barred
because it was not filed within one year of Sounou’s entry into the United States.
The IJ also made an adverse credibility determination and concluded that
Sounou had not credibly established his entitlement to withholding of removal
or relief under the CAT. The BIA upheld IJ’s decision.
      Sounou argues that the IJ and the BIA erred by failing to find that the
reasons given for failing to timely file his asylum application constituted
extraordinary circumstances such that the one-year deadline should be excused.
He also argues that the adverse credibility finding is not supported by
substantial evidence and that the IJ was biased against him thereby violating
his due process rights.
      Because the BIA approved of and relied upon the IJ’s decision, we review
the decisions of both the BIA and the IJ. See Zhu v. Gonzales, 493 F.3d 588,
593-94 (5th Cir. 2007). After the passage of the REAL ID Act of 2005, we have
jurisdiction to review a determination of timeliness that turns on a
constitutional claim or question of law. Id. at 594-95; Nakimbugwe v. Gonzales,
475 F.3d 281, 284 (5th Cir. 2007). However, we lack jurisdiction to review
determinations of timeliness that are based on findings of fact. See Zhu, 493
F.3d at 594-95; Nakimbugwe, 475 F.3d at 284.
      In this case, Sounou’s challenge to the timeliness determination is based
on the IJ’s assessment of facts and circumstances. Accordingly, because Sounou
has not identified a constitutional or legal issue with regard to the timeliness of
his asylum application, we lack jurisdiction to consider this issue. See Zhu, 493
F.3d at 594-95; Nakimbugwe, 475 F.3d at 284.
      Pursuant to the REAL ID, “an IJ may rely on any inconsistency or
omission in making an adverse credibility determination as long as the totality
of the circumstances establishes that an asylum applicant is not credible.” Wang
v. Holder, 569 F.3d 531, 538 (5th Cir. 2009) (internal quotation marks and
citation omitted). We will “defer therefore to an IJ’s credibility determination

                                        2
   Case: 11-60542    Document: 00511857473      Page: 3    Date Filed: 05/16/2012

                                  No. 11-60542

unless, from the totality of the circumstances, it is plain that no reasonable
fact-finder could make such an adverse credibility ruling.”           Id. (internal
quotation marks and citation omitted).
      The adverse credibility determination is supported by the discrepancies
noted by the IJ and the BIA between Sounou’s three applications for adjustment
of status and Sounou’s testimony during the removal hearing, as well as the
information Sounou provided in his two applications for asylum, withholding of
removal, and relief under the CAT. The discrepancies noted by the IJ and the
BIA are not trivial. The crux of Sounou’s claims for relief was that he had been
tortured in the past in Togo and that he feared that he would be executed if he
returned to Togo as a result of his affiliation with the UFC. Sounou testified
that he was arrested twice, detained for several days after each arrest, and
beaten severely during both detentions. Yet none of Sounou’s three applications
for adjustment of status contained any reference to the arrests, even though the
applications clearly asked whether Sounou had ever been arrested “in or outside
the U.S.,” and none of the applications contained any reference to his
membership in the UFC, even though the applications clearly required Sounou
to list all “present and past membership in or affiliation with every organization,
association . . . in the United States or in other places since your 16th birthday.”
Sounou also failed to list his children on his applications for adjustment of status
notwithstanding his testimony that he was close to his children.
      In light of these and other inconsistencies found by the BIA and the IJ, we
are unable to conclude that “no reasonable fact-finder could make such an
adverse credibility ruling.” Id. (internal quotation marks and citation omitted).
Because the credibility determinations of the BIA and the IJ withstand our
highly deferential standard of review, we find that the decision to deny Sounou
withholding of removal relief is supported by substantial evidence and that
Sounou’s CAT claim was properly denied for lack of credible evidence.



                                         3
   Case: 11-60542   Document: 00511857473     Page: 4   Date Filed: 05/16/2012

                                 No. 11-60542

      Finally, although the absence of a neutral arbiter can be the basis for a
due process violation, see Wang, 569 F.3d at 540, Sounou has failed to
demonstrate that his due process rights were violated. The record does not
reflect that there was such a high degree of antagonism as to make a fair
judgment impossible, see Liteky v. United States, 510 U.S. 540, 555 (1994), nor
has Sounou demonstrated that the IJ held a personal bias against him that
arose from an “extrajudicial source” or that the IJ demonstrated “such pervasive
bias and prejudice . . . as would constitute bias against a party.” See Matter of
Exame, 18 I & N Dec. 303, 306 (BIA 1982) (internal quotation marks and citation
omitted). Accordingly, Sounou has failed to establish a due process violation.
See Wang, 569 F.3d at 541.
      The petition for review of denial of asylum is DISMISSED for lack of
jurisdiction; the petition for review of denial of withholding of removal and
protection under the CAT is DENIED.




                                       4
