     Case: 14-60494      Document: 00513345206         Page: 1    Date Filed: 01/15/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-60494
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
ABID HUSSAIN; ANEELA PARVEEN ABID,                                       January 15, 2016
                                                                           Lyle W. Cayce
              Petitioners                                                       Clerk

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

              Respondent




                           Petition for Review of an Order
                        of the Board of Immigration Appeals
                                  No. A098 223 494


Before SMITH, WIENER, and GRAVES, Circuit Judges.
PER CURIAM:*
       Petitioners Abid Hussain and Aneela Parveen Abid 1 are natives and
citizens of Pakistan who were admitted to the United States in February 2000,



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1 Respondent filed an uncontested motion to sever the petition of Mahsheed Abid
Hussain from those of her parents Abid Hussain and Aneela Parveen Abid and to remand
her case to the Board of Immigration Appeals (“BIA”) so that it could be administratively
closed. In an earlier order, we disposed of the motion by severing the petition of Mahsheed
and dismissing it without prejudice to reinstatement.
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as nonimmigrant visitors with authorization to remain here for a temporary
period not to exceed March 19, 2000. 2 At the end of December 2002, Petitioners
left the United States for Canada, seeking asylum there. They were denied
admission to and removed from Canada in April 2005. They then sought
admission to the United States.
       In May 2009, the Department of Homeland Security (DHS) issued
Petitioners notices to appear, charging them with removability for having
remained in the United States longer than permitted. 3 In February 2010, DHS
withdrew the charge of removability, instead charging Petitioners as
inadmissible arriving aliens who were not in possession of valid entry
documents at the time of their applications for admission in 2005. 4
       Petitioners appeared before an immigration judge (“IJ”), admitted the
factual allegations in the notice to appear, and conceded the charge of
inadmissibility.       The     IJ   found   Petitioners     inadmissible      pursuant      to
8 U.S.C. § 1182(a)(7)(A)(i)(I).
       Petitioners then applied for asylum, statutory withholding of removal,
and withholding of removal under the Convention Against Torture
(“CAT”) based on religion and membership in a particular social group. 5 They




       2   See 8 U.S.C. § 1101(a)(15).
       3   See 8 U.S.C. § 1227(a)(1)(B).
       4 See 8 U.S.C. § 1182(a)(7)(A)(i)(I); see also Matter of R-D-, 24 I. & N. Dec. 221, 223,
225-26 (B.I.A. 2007) (affirming an immigration judge’s decision that an alien returning to the
United States after the denial of an application for refugee status in Canada is an arriving
alien seeking admission into the United States).
       5 The IJ found that they did not file their asylum applications within one year
following their arrival in the United States and that they did not fall within any exceptions
to that one-year deadline. The BIA found that they did not appeal that determination. They
have not raised a challenge to the denial of their asylum applications in this court. Thus, any
challenge to the denial of asylum is deemed abandoned. See Soadjede v. Ashcroft, 324 F.3d
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asserted that they feared persecution and torture in Pakistan for the following
reasons: (1) Abid is Shia, Aneela is Sunni, and they are raising Mahsheed as
Shia; (2) Aneela’s family in Pakistan is a powerful member of the Muttahida
Quami Movement; (3) Aneela’s family opposed their inter-religious marriage
and their raising Mahsheed as Shia; (4) Aneela’s family vowed to kill all
Petitioners as a type of honor killing and would be able to find Petitioners in
the United States; (5) her family left them voicemails stating that they would
be killed as soon as they returned to Pakistan; (6) Pakistani police or other
authorities would be unable to help them because of Aneela’s family’s political
connection and power; and (7) her family could find them in any part of
Pakistan.
       As summarized by the IJ, Abid testified that (1) Aneela’s father gave him
permission to marry her; (2) her whole family attended the wedding; (3) her
family knew at the time that he was Shia; (4) it is traditional for a wife and
children to take the father’s religion; (5) Aneela converted and is now Shia; and
(6) neither he nor Aneela had been harmed in Pakistan following their 1997
wedding. Abid inconsistently testified that (1) Aneela had been in contact with
her family since they left Pakistan for the United States; (2) she had not been
in contact with her family; and (3) he did not know whether she had been in
contact with her family. Abid also testified that he had received a single threat
from Aneela’s brother via a voicemail message while he was in Canada, and
that he had spoken with Aneela’s father by telephone, who said that the family
would be upset if the couple’s children were raised Shia.
       As also summarized by the IJ, Aneela testified that (1) she sometimes
prays as a Shia but considers herself a Sunni; and (2) her brother had


830, 833 (5th Cir. 2003) (explaining that issues not raised in a petition for review of a decision
by the BIA are abandoned).
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threatened Abid’s parents in Pakistan, but nothing had happened to them
since that threat. Aneela also testified inconsistently that (1) she had not been
in contact with her family while she was in the United States or Canada
regarding the religious upbringing of her daughter; (2) she had spoken with
her parents while she was in Canada and told them she would raise her
daughter Shia.
      The IJ found that because Petitioners’ “alleged fear of harm arose out of
the alleged telephone threat or threats, . . . the discrepancies and
inconsistencies regarding these alleged telephone calls undermine the
credibility of [Petitioners].” The IJ also found “that since the difference in
religious beliefs and practices is the basis for the claims for relief, the
inconsistent testimony of [Petitioners] regarding the wife’s religion also
undermines the credibility of [Petitioners] in this case.” After reviewing the
evidence and finding that Petitioners were not credible witnesses, the IJ found
that “apart from their testimony, there is no other evidence in the record that
specifically relates to their claims for relief.” Concluding that Petitioners had
not borne their burden of showing that they were eligible for statutory
withholding of removal or for withholding under the CAT, the IJ ordered them
removed to Pakistan.
      Through counsel, Petitioners appealed to the Board of Immigration
Appeals (“BIA”). Counsel made a conclusional assertion that it was an error of
law for the IJ to deny Petitioners’ applications for relief, and asserted that, as
“[t]he only issue in this appeal,” it was an error of fact for the IJ to find them
not credible because the finding was not supported by specific and cogent
reasons and was based on minor discrepancies that did not go to the heart of
their claims. Counsel further asserted that Petitioners had “testified in some
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detail . . . as to their fear of returning to Pakistan because of their mixed
marriage.” 6
       The DHS moved for summary affirmance, noting that Petitioners did
“not take issue with or point to any particular finding of fact made by the [IJ]”
and contending that the IJ cited specific reasons for its adverse credibility
determination that were central to Petitioners’ claims for relief. The BIA
determined that (1) the IJ’s adverse credibility determination was not clearly
erroneous; (2) Petitioners did not establish that the IJ’s view of the evidence
was impermissible; (3) the discrepancies noted by the IJ did not need to go to
the heart of Petitioners’ claim; and (4) the IJ’s adverse credibility
determination was based on noted discrepancies regarding threats that
Petitioners allegedly received and Aneela’s religious affiliation. Based on the
IJ’s findings of fact, the BIA concluded on de novo review that Petitioners did
not qualify for statutory withholding of removal or for withholding under the
CAT. After the BIA dismissed Petitioners’ appeal, they timely filed their
petition for review. 7
                                         ANALYSIS

       Petitioners contend that the BIA erred in upholding the IJ’s adverse
credibility determination. They further contend that the BIA’s determination
that the IJ’s adverse credibility determination was not clearly erroneous is not
supported by substantial evidence and “go[es] against the facts presented by
Petitioners.”



       6  Petitioners also filed a motion for abatement or administrative closure of the
proceedings, which the DHS opposed, and the BIA denied. Petitioners do not challenge the
denial of that motion in this court. Thus, any challenge to the denial of that motion is deemed
abandoned. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
       7   See 8 U.S.C. § 1252(b)(1).
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       The DHS responds that the BIA “properly denied Petitioners’
applications for withholding of removal where the immigration judge properly
determined that Petitioners could not meet their burdens of proof because they
lacked credibility.” It notes that the IJ “pointed to specific instances in the
record where contradictory evidence was provided,” which it reviews.
       We review the BIA’s decision and will consider the underlying decision
of the IJ only to the extent that it influenced the determination of the BIA. 8
But “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.” 9
       The alien has the burden of proving that he is eligible for statutory
withholding or for withholding under the CAT. 10 The alien’s testimony, if
credible, may bear that burden. 11
                       [A] trier of fact may base a credibility
                 determination on the demeanor, candor, or
                 responsiveness of the applicant or witness, the
                 inherent plausibility of the applicant’s or witness’s
                 account, the consistency between the applicant’s or
                 witness’s written and oral statements (whenever made
                 and whether or not under oath, and considering the
                 circumstances under which the statements were
                 made), the internal consistency of each such
                 statement, the consistency of such statements with
                 other evidence of record (including the reports of the
                 Department of State on country conditions), and any
                 inaccuracies or falsehoods in such statements, without
                 regard to whether an inconsistency, inaccuracy, or


       8   Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009).
       9 8 U.S.C. § 1252(d)(1); see Omari v. Holder, 562 F.3d 314, 317-19, 321, 324-25 (5th
Cir. 2009) (holding that the failure to exhaust is a jurisdictional bar and that parties must
fairly present an issue to the BIA to satisfy § 1252(d)’s exhaustion requirement).
       10   8 U.S.C. § 1231(b)(3)(C); 8 C.F.R. § 208.16(b), (c)(2).
       11   8 U.S.C. § 1158(b)(1)(B)(ii); Id. § 1231(b)(3)(C); 8 C.F.R. § 208.16(b), (c)(2).
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                falsehood goes to the heart of the applicant’s claim, or
                any other relevant factor. There is no presumption of
                credibility, however, if no adverse credibility
                determination is explicitly made, the applicant or
                witness shall have a rebuttable presumption of
                credibility on appeal. 12

We must defer to a “credibility determination unless, from the totality of the
circumstances, it is plain that no reasonable fact-finder could make such an
adverse credibility ruling.” 13
      Petitioners insist that the IJ “breached its duty to develop the record by
failing to provide a balance in the line of questioning conducted towards
Petitioners.” They did not, however, raise this argument in their brief to the
BIA, and we lack jurisdiction to entertain this unexhausted issue. 14
      Petitioners did, however, challenge the IJ’s credibility determination
itself in that brief. Even though they raised the argument “in a less-developed
form to the BIA,” we have jurisdiction because it has been “sufficiently
exhausted.” 15
      In fleshing out that argument, Petitioners maintain that a thorough
analysis of the record reveals substantial evidence that the adverse credibility
determination is clearly erroneous. They state, in part, that “it is evident that
the IJ based his determination on a simplification of the death threats against
Petitioners and their family as well as an over-emphasis on one particular
element of Petitioners’ claim.”




      12   8 U.S.C. § 1158(b)(1)(B)(iii); see 8 U.S.C. § 1231(b)(3)(C).
      13   Wang, 569 F.3d at 538.
      14   See 8 U.S.C. § 1252(d)(1); Omari, 562 F.3d at 318-19.
      15   Omari, 562 F.3d at 321.
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       We do not agree. Under the totality of circumstances, including
Petitioners’ withholding applications and their testimony to the IJ as
summarized above, it is not “plain that no reasonable fact-finder could make
such an adverse credibility ruling.” 16 Accordingly, we defer to that ruling. 17
Petitioners do not assert that they had evidence other than their noncredible
testimony to support their applications for statutory withholding or
withholding under the CAT. 18
                                      CONCLUSION

       For the forgoing reasons, the petition for review of the denials of the
applications of Abid Hussain and Aneela Parveen Abid is DENIED.




       16   Wang, 569 F.3d at 538.
       17   Id.
       18While the instant petition was pending, counsel notified us that the Petitioners are
now divorced. Because we uphold the determination that there was no threat of religious
persecution while Petitioners were married, we need not consider whether Petitioners’
divorce eliminated that threat.
