Richard McAkech v. Eric Holder, Jr. , 402 F. App'x 928 ( 2010 )

Case: 09-60929 Document: 00511302314 Page: 1 Date Filed: 11/23/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 23, 2010
No. 09-60929
Summary Calendar Lyle W. Cayce
Clerk
RICHARD MCAKECH,
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. A079 009 492
Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Richard McAkech has petitioned for review of the decision of the Board of
Immigration Appeals (BIA) dismissing McAkech’s appeal from the decision of the
Immigration Judge (IJ) denying McAkech’s petition for asylum, withholding of
removal, and for relief under the Convention Against Torture (CAT). McAkech
contends that the BIA’s affirmance of the IJ’s adverse credibility finding in
rejecting his request for withholding of removal is not supported by substantial
evidence.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-60929 Document: 00511302314 Page: 2 Date Filed: 11/23/2010
No. 09-60929
In making a credibility finding, “an IJ may rely on any inconsistency or
omission . . . 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). This court will defer “to
an IJ’s credibility determination 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 IJ is not
required to consider only inconsistencies, inaccuracies, and falsehoods that go
to the heart of an applicant’s claim, id. at 537 (quoting 8 U.S.C.
§ 1158(b)(1)(B)(iii)), as details at the periphery of the applicant’s story “may
expose a liar.” Id. at 539 (internal quotation marks and citation omitted).
The IJ reported that McAkech’s affect, in describing the attack on his
residence that formed the basis for his petition, was flat, and that his responses
to questions were vague, hesitant, and evasive. McAkech was unwilling or
unable to state consistently and clearly the details of his divorce from his first
wife and the reason why she did not accompany him to the United States. These
factors are particularly pertinent, given that McAkech was the beneficiary of
three unsuccessful I-130 petitions. Although McAkech bore the burden of
showing that he is eligible for withholding of removal, see Roy v. Ashcroft, 389
F.3d 132, 138 (5th Cir. 2004), he made little effort to corroborate his testimony
with documentary evidence. See also Wang, 569 F.3d at 537 (quoting
§ 1158(b)(1)(B)(ii)). We cannot conclude, based on the totality of the
circumstances, that it is plain that no reasonable factfinder could have made an
adverse credibility finding in this case. See id. at 538.
We have not reached McAkech’s arguments with respect to the BIA’s
decision affirming the IJ’s alternative ruling that McAkech had failed to show
that he had been persecuted on the basis of a protected ground. McAkech raises
no issue with respect to the denial of his asylum application and request for
relief under the CAT. The petition is DENIED.
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