Richard McAkech v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION FILED. [09-60929 Affirmed ] Judge: WED, Judge: JES , Judge: LHS. Mandate pull date is 01/14/2011 [09-60929]

Richard McAkech v. Case: 09-60929 Eric Holder, Jr.

Document: 00511302314 Page: 1 Date Filed: 11/23/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60929 S u m m a r y Calendar November 23, 2010 Lyle W. Cayce Clerk

R I C H A R D MCAKECH, P e titio n e r v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL, R espon dent

P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A079 009 492

B e fo r e DAVIS, SMITH and SOUTHWICK, Circuit Judges. P E R CURIAM:* R ic h a r d McAkech has petitioned for review of the decision of the Board of Im m ig ra tion Appeals (BIA) dismissing McAkech's appeal from the decision of the I m m ig r a t io n Judge (IJ) denying McAkech's petition for asylum, withholding of r e m o v a l, and for relief under the Convention Against Torture (CAT). McAkech c o n t e n d s that the BIA's affirmance of the IJ's adverse credibility finding in r e je c t in g his request for withholding of removal is not supported by substantial e v id e n c e .
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 09-60929 Document: 00511302314 Page: 2 Date Filed: 11/23/2010 No. 09-60929 I n making a credibility finding, "an IJ may rely on any inconsistency or o m is s io n . . . as long as the `totality of the circumstances' establishes that an a s y lu m applicant is not credible." Wang v. Holder, 569 F.3d 531, 538 (5th Cir. 2 0 0 9 ) (internal quotation marks and citation omitted). This court will defer "to a n 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 r u lin g ." Id. (internal quotation marks and citation omitted). The IJ is not r e q u ir e d to consider only inconsistencies, inaccuracies, and falsehoods that go t o 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 e x p o s e a liar." Id. at 539 (internal quotation marks and citation omitted). T h e IJ reported that McAkech's affect, in describing the attack on his r e s id e n c e that formed the basis for his petition, was flat, and that his responses t o questions were vague, hesitant, and evasive. McAkech was unwilling or u n a b le to state consistently and clearly the details of his divorce from his first w ife and the reason why she did not accompany him to the United States. These fa c t o r s are particularly pertinent, given that McAkech was the beneficiary of t h r e e unsuccessful I-130 petitions. Although McAkech bore the burden of

s h o w in g that he is eligible for withholding of removal, see Roy v. Ashcroft, 389 F .3 d 132, 138 (5th Cir. 2004), he made little effort to corroborate his testimony w it h documentary evidence. § 1158(b)(1)(B)(ii)). See also Wang, 569 F.3d at 537 (quoting

We cannot conclude, based on the totality of the

c ir c u m s t a n c e s , that it is plain that no reasonable factfinder could have made an a d v e r s e credibility finding in this case. See id. at 538. W e have not reached McAkech's arguments with respect to the BIA's d e c i s i o n affirming the IJ's alternative ruling that McAkech had failed to show t h a t he had been persecuted on the basis of a protected ground. McAkech raises n o issue with respect to the denial of his asylum application and request for r e lie f under the CAT. The petition is DENIED. 2