Robina Tariq v. Eric Holder, Jr. , 537 F. App'x 494 ( 2013 )

Case: 12-60669 Document: 00512326644 Page: 1 Date Filed: 07/31/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 31, 2013
No. 12-60669
Summary Calendar Lyle W. Cayce
Clerk
ROBINA TARIQ,
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. A088 837 841
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Robina Tariq, a native and citizen of Pakistan, petitions for review of an
order of the Board of Immigration Appeals (BIA) dismissing her appeal from the
denial of her application for withholding of removal and relief under the
Convention Against Torture (CAT). She makes the following arguments in
support of her petition for review: (1) the adverse credibility determination made
by the immigration judge (IJ) was clearly erroneous, (2) the IJ and the BIA erred
by denying her application for withholding of removal, (3) the IJ and the BIA
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-60669
erred by denying her application for relief under the CAT, and (4) the IJ violated
her due process rights by not obtaining testimony from her expert witness.
Tariq argues that the IJ’s adverse credibility determination and the BIA’s
upholding of that determination were clearly erroneous. This court reviews the
order of the BIA and will consider the underlying decision of the IJ to the extent
it was relied upon by the BIA. Theodros v. Gonzales, 490 F.3d 396, 400 (5th Cir.
2007). Here, the BIA’s decision was based primarily on its adoption of the IJ’s
findings and its affirmance of the IJ’s adverse credibility finding. Accordingly,
this court may consider both decisions. See id.
Because Tariq filed her application for relief from removal after the
effective date of the REAL ID Act, the standards for assessing credibility in the
wake of that Act are applied. See Wang v. Holder, 569 F.3d 531, 537 (5th Cir.
2009). When making a credibility determination under the REAL ID Act, the
trier of fact must consider the totality of the circumstances, including the
applicant’s demeanor and responsiveness, the inherent plausibility of the
applicant’s account, and the consistency of the applicant’s written and oral
statements, “without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim.” 8 U.S.C.
§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); see Wang, 569 F.3d at 537. “It is the
factfinder’s duty to make credibility determinations, and this court cannot
substitute its judgment for that of the BIA or IJ with respect to witnesses’
credibility.” Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012). The
BIA’s decision to uphold the IJ’s adverse credibility determination is reviewed
under the substantial evidence standard. See id. “[R]eversal is improper unless
the court decides not only that the evidence supports a contrary conclusion, but
also that the evidence compels it.” Id. (internal quotation marks and citation
omitted). The petitioner must show that no reasonable factfinder could reach a
contrary conclusion. Id.
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In finding that Tariq was not credible, the IJ based her decision on the
entire record, including Tariq’s demeanor during her testimony, the consistency
of her testimony as it related to its content, the presence or absence of witnesses,
and the country condition report. The IJ specifically cited her careful
observation of Tariq during questioning as a basis for the decision. Additionally,
the IJ relied upon Tariq’s complete omission of the alleged beating suffered by
her husband. The IJ found that it was unreasonable that Tariq would forget
about an incident that happened to her husband that was related to the ground
of relief she was asserting. The BIA concluded that the IJ’s credibility
determination was supported by the totality of the circumstances and
particularly cited Tariq’s omission of the information concerning her husband as
a basis for the determination. The BIA also deferred to the IJ’s findings
regarding Tariq’s demeanor because the IJ was in a superior position to make
that assessment.
“[A]n 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 . . . applicant is not credible.” Wang, 569 F.3d at 538 (internal quotation
marks and citation omitted). Tariq has not persuasively abated the
inconsistencies and implausibilities cited by the IJ and BIA and has not shown
that the evidence compels the conclusion that she was a credible witness. See
Dayo v. Holder, 687 F.3d 653, 657-58 (5th Cir. 2012).
In light of the IJ’s adverse credibility determination and the lack of
independent evidence supporting her claim, Tariq has not demonstrated that it
is more likely than not that she would be persecuted on account of her imputed
political opinion or her social group if she were forced to return to Pakistan. See
Wang, 569 F.3d at 536; Chen v. Gonzales, 470 F.3d 1131, 1138 (5th Cir. 2006).
Accordingly, the decision to deny Tariq’s application for withholding of removal
is supported by substantial evidence. See Chen, 470 F.3d at 1134.
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Similarly, given the adverse credibility determination, Tariq’s assertion
that she fears being tortured, without more, does not demonstrate that it is more
likely than not that she will be tortured by or with the acquiescence of the
Pakistani government. Tamara-Gomez v. Gonzales, 447 F.3d 343, 350–51 (5th
Cir. 2006); 8 C.F.R. § 1208.18(a)(1). Accordingly, the decision to deny Tariq
relief under the CAT is supported by substantial evidence. See Chen, 470 F.3d
at 1134.
Finally, Tariq argues that the IJ’s decision not to obtain testimony from
her expert witness constituted a violation of her due process rights and that the
BIA erred by affirming the IJ’s decision. Aliens subject to removal proceedings
are entitled to due process. Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997).
Review of a due process claim is de novo. Id. To establish a due process
violation, Tariq must make an initial showing of substantial prejudice. Id. That
is, she must make a prima facie showing that she was eligible for withholding
of removal or CAT relief and that the excluded evidence “could have made a
strong showing in support of [her] application.” See id. Given the IJ’s adverse
credibility determination and the lack of independent evidence supporting her
application for relief, Tariq cannot meet the standard set forth in Anwar.
Accordingly, her petition for review is DENIED.
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