Aggarwal v. Gonzales , 165 F. App'x 322 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 30, 2006
_____________________ Charles R. Fulbruge III
Clerk
No. 05-60272
(Summary Calendar)
_____________________
GOPAL KRISHAN AGGARWAL; UMA AGGARWAL; SURIYA AGGARWAL;
NEERJA AGGARWAL
Petitioners
v.
ALBERTO R GONZALES, U S ATTORNEY GENERAL
Respondent
__________________________________________
Petition for Review from the
Board of Immigration Appeals,
No. A97 641 994
__________________________________________
Before SMITH, GARZA, AND PRADO, Circuit Judges.
PER CURIAM:*
Gopal Krishan Aggarwal, his wife, and their children
(collectively, “Petitioners”) petition for review the decision of
the Board of Immigration Appeals (“BIA”) affirming the
Immigration Judge’s (“IJ”) decision to deny their application for
asylum, withholding of removal, and relief under the Convention
*
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that this opinion should not be published and is not precedent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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Against Torture.
In its denial, the BIA summarily affirmed the opinion of the
Immigration Judge, including a finding that Mr. and Mrs. Aggarwal
were not credible witnesses. Petitioners argue that the
credibility determination is not supported by substantial
evidence.
I
Ordinarily, we review decisions made by the BIA. However,
where the BIA summarily affirms the IJ’s order, we review the
IJ’s findings. Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th Cir.
2003); Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002). We
will not disturb factual findings of the BIA unless we “find not
only that the evidence supports a contrary conclusion, but that
the evidence compels it.” Chun v. INS, 40 F.3d 76, 78 (5th Cir.
1994); see also 8 U.S.C. § 1252(b)(4)(B). This “substantial
evidence” standard requires that the decision be based on the
evidence presented and that the decision be substantially
reasonable. Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir.
1996).
We give great deference to an IJ’s findings concerning a
witness’s credibility. Efe, 293 F.3d at 903. In making a
credibility determination, the factfinder should consider the
totality of the circumstances and may base his decision on, inter
alia, the witness’s demeanor, the “inherent plausibility” of the
witness’s account, the internal consistency of the account, and
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the consistency of the account with other evidence. 8 U.S.C. §
1158(b)(1)(iii).
The record does not compel this court to find Mr. and Mrs.
Aggarwal credible on the basis of these factors. As the IJ
discussed in his decision, there were inconsistencies within, as
well as between, the Aggarwals’ testimonies. In addition, the IJ
found some of their assertions implausible. He also found Mr.
Aggarwal’s testimony to be vague and his responses guarded and
generalized.
II
Petitioners also ask this court to reevaluate our holding in
Soadjede v. Ashcroft, 324 F.3d 830 (5th Cir. 2003), that
procedures under which a single member of the BIA could summarily
affirm a decision of an IJ does not deprive this court of a basis
for judicial review and does not violate due process. Id. at
832-33. We review questions of law de novo. Efe v. Ashcroft,
293 F.3d 899, 903 (5th Cir. 2002). Petitioners’ particular due
process complaint that they did not receive an adequate
explanation of the BIA’s reasoning is unavailing. In Soadjede,
we noted that the summary affirmance procedures of the BIA are
similar to this court’s and other courts’ summary disposition
procedures, which do not violate due process. 324 F.3d at 832;
see 5TH CIR. R. 47.6 (providing for affirmance without opinion
under enumerated circumstances). Because the decision of the IJ
in the instant case was correct and did not raise novel or
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substantial factual or legal questions, the decision met the
criteria for summary affirmance. See 8 C.F.R. § 1003.1(d).
Petitioners had a full evidentiary hearing before an IJ and
appeals to both the BIA and this court, satisfying due process.
In addition, we have a reasoned basis for review because the oral
decision and order of the immigration judge provides the basis
for review. Albathani v. INS, 318 F.3d 365, 376-78 (1st Cir.
2003). Thus, we reaffirm our holding in Soadjede.
III
For the foregoing reasons, we will not disturb the BIA’s
adverse credibility finding. Because Petitioners’ asylum
application depends on the Aggarwals’ testimony, we conclude that
they have not demonstrated their eligibility for asylum,
withholding of removal, or relief under the Convention Against
Torture and accordingly DENY their petition for review.
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