Amosie v. Holder, No. 08-60069 (5th. Cir. 5/4/2009)
| Decision Date | 04 May 2009 |
| Docket Number | No. 08-60069.,08-60069. |
| Parties | BERHANU YOHANNES AMOSIE; TERUWORK GEBRWOLD ELORO, also known as Teruwork Gebrwold Cheveny Petitioners v. ERIC H HOLDER, JR, U S ATTORNEY GENERAL Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Before: DAVIS, GARZA, and PRADO, Circuit Judges.
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Berhanu Yohannes Amosie and Teruwork Gebrwold Eloro, a married couple who are natives and citizens of Ethiopia, petition this Court for a review of a decision of the Board of Immigration Appeals (BIA). The BIA dismissed the petitioners' appeal of an order of an Immigration Judge (IJ) denying their applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The BIA concluded that the petitioners had not met their burden of demonstrating eligibility for relief because their claim lacked sufficient consistency and plausibility to provide a coherent account of the events allegedly resulting in their fear of return to Ethiopia. In so ruling, the BIA upheld the IJ's finding that the petitioners were not credible.
The petitioners now argue that the IJ erred in finding certain of their factual allegations implausible and in finding that, in light of these implausibilities, the corroborating evidence supporting their claims was insufficient. They also argue that (1) they were credible witnesses because they testified consistently throughout the proceedings; (2) the IJ's adverse credibility finding was not supported by specific, cogent reasons; and (3) the BIA abused its discretion in adopting the adverse credibility finding because it was based purely on speculation and conjecture.
This Court generally reviews only the BIA's decision; however, we may review the IJ's decision to the extent that it influences the BIA. Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). Here, the BIA approved of and relied on the IJ's credibility findings; thus, we review the findings of the IJ. See Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994).1 Factual findings are reviewed for substantial evidence, with great deference given to the IJ's credibility determinations. Id. However, this Court "cannot substitute [its] judgment for that of the BIA or IJ with respect to the credibility of the witnesses or ultimate factual findings based on credibility determinations." Id. Therefore, this Court "will not review decisions turning purely on the immigration judge's assessment of the alien petitioner's credibility." Id. (internal quotation marks and citation omitted). This Court will, however, review the record to determine whether an adverse credibility determination is "supported by specific and cogent reasons derived from the record." Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).
Furthermore, 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.
The petitioners did not raise their specific challenges to the facts found to be implausible by the IJ and the BIA on appeal to the BIA or in a motion to reopen the proceedings. They likewise did not challenge the finding that the documentary evidence was suspect and insufficient to establish their claims in light of the aforementioned implausibilities. Because the BIA has adequate mechanisms to address and remedy these claims and because they were not presented to the BIA, this Court lacks jurisdiction to consider the petitioners' arguments challenging the specific factual findings of the IJ and BIA as well as the conclusion that the documentary evidence was suspect and insufficient to establish their claims. See id.; see also Goonsuwan v. Ashcroft, 252 F.3d 383, 390 (5th Cir. 2001).
To the extent that this Court has jurisdiction to consider the petitioners' arguments challenging the adverse credibility finding generally, the petitioners' claims are unavailing. The IJ and the BIA gave specific, cogent reasons for the adverse credibility determination that were based on the petitioners' testimony and documentary evidence contained in the record. See Zhang, 432 F.3d at 344. "[W]here the judge's credibility determinations are supported by the record, we will affirm them even if we may have reached a different conclusion, because we will reverse only if the record compels a different conclusion." Mwembie v. Gonzales, 443 F.3d 405, 410 (5th Cir. 2006) (internal quotation marks and citation omitted). The record in this case does not compel a different conclusion regarding the petitioners' lack of credibility. Rather, the record as a whole supports the adverse credibility determination.
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...
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