Karim Dhuka, et al v. Eric Holder, Jr.

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UNPUBLISHED OPINION FILED. [10-60051 Affirmed ] Judge: CDK , Judge: HRD , Judge: JLD Mandate pull date is 12/27/2010 [10-60051]

Karim Dhuka, et al v. EriceHolder, Jr. Cas : 10-60051

Document: 00511285828 Page: 1 Date Filed: 11/05/2010

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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 . 10-60051 S u m m a r y Calendar November 5, 2010 Lyle W. Cayce Clerk

K A R I M DHUKA; NASIM DHUKA; AIZAZ KARIM DHUKA, P e titio n e rs 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. A099 616 515 B I A No. A099 616 518 B I A No. A099 616 519

B e fo r e KING, DEMOSS, and DENNIS, Circuit Judges. P E R CURIAM:* N a s im Dhuka (Nasim), together with her derivative beneficiaries Karim D h u k a and Aizaz Karim Dhuka, petitions for review of the decision of the Board o f Immigration Appeals (BIA) affirming the decisions of the immigration judge (I J ) to deny her application for asylum, withholding of removal, and relief under t h e Convention Against Torture (CAT). The Dhukas are natives and citizens of

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-60051 Document: 00511285828 Page: 2 Date Filed: 11/05/2010 No. 10-60051 I n d ia , who alleged that Nasim suffered persecution from Hindu fundamentalists o n the basis of her Muslim religion. The IJ determined that Nasim's testimony w a s not credible, and this ruling was upheld by the BIA. Alternatively, the IJ r u le d that even if Nasim's testimony was accepted as true, she had not e s t a b lis h e d her entitlement for relief; the BIA likewise upheld this decision. T h e Dhukas argue that the IJ failed to explain adequately why Nasim's " d e m e a n o r " warranted an adverse credibility finding and failed to take into a c c o u n t the shame Nasim faced as a Muslim woman testifying about her rape. They maintain that inconsistencies noted by the IJ were the result of " b a d g e r in g " and insensitive questioning and thus do not reflect adversely on her c r e d ib ilit y . The Dhukas also contend that Nasim's testimony was adequately c o r r o b o r a t e d by affidavits and by magazine articles and country reports showing t h a t during the pertinent time period Muslims suffered severe harm at the h a n d s of Hindu fundamentalist groups. They assert that as a result Nasim has e s t a b lis h e d past persecution and the Government has failed to rebut the p r e s u m p t io n of future persecution if they return to India. The Dhukas do not c h a lle n g e to the denial of relief under the CAT, so any such claim is abandoned. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003). Likewise, any c h a lle n g e the denial of Karim Dhuka's separate application for withholding of r e m o v a l has been abandoned. See id. W e review an immigration court's findings of fact for substantial evidence. Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). We will not reverse an im m ig r a t io n court's factual findings unless "the evidence was so compelling that n o reasonable factfinder could conclude against it." Id. at 537. Among the fin d in g s of fact that we review for substantial evidence is an immigration court's c o n c lu s io n that an alien is not eligible for asylum or withholding of removal. Zhang v. Gonzales, 432 F.3d 339, 344-45 (5th Cir. 2005). P u r s u a n t to the REAL ID Act of 2005, "an IJ may rely on any in c o n s is t e n c y or omission in making an adverse credibility determination as long 2

Case: 10-60051 Document: 00511285828 Page: 3 Date Filed: 11/05/2010 No. 10-60051 a s the totality of the circumstances establishes that an asylum applicant is not c r e d ib le ." Wang, 569 F.3d at 538 (internal quotation marks and citation

o m it t e d ); see also 8 U.S.C. § 1158(b)(1)(B)(iii). We will "defer therefore to an IJ's c r e d ib i l i t y determination unless, from the totality of the circumstances, it is p la in that no reasonable fact-finder could make such an adverse credibility r u lin g ." Wang, 569 F.3d at 538 (internal quotation marks and citation omitted). C on tra ry to the Dhukas' assertions, the IJ explained the factors in Nasim's d e m e a n o r that caused the IJ to question Nasim's credibility. To the extent that t h e Dhukas assert that Nasim's hesitancy and lack of emotion may be explained b y her shame, they do not explain why she exhibited the same demeanor when e x p la in in g why she did not obtain copies of her medical reports showing the m e d ic a l treatment she received after the assault. Additionally, the IJ was e n tit le d to question Nasim during the proceedings and could seek reasonably a v a ila b le corroborative evidence to support even credible testimony. 8 U.S.C. § § 1229a(b)(1), 1158(b)(2)(B)(ii). Nasim's contradictions and implausible

a n s w e r s about her failure to obtain corroborative medical evidence caused the I J to pursue further the line of questioning, which led to further inconsistencies a n d to Nasim's admissions that some of her statements were false. Finally, the a ffid a v it s and other documentary evidence, while providing generalized in fo r m a t io n about the state of Hindu-Muslim relations at the time of Nasim's a s s a u lt, do not corroborate Nasim's story and establish that she in fact was a v ic t im of such an attack. M o r e o v e r , the adverse credibility finding is supported by other in c o n s is t e n c ie s in Nasim's testimony, as noted by the IJ. Nasim asserted that a crowd of 400-500 Hindus attacked her community and assaulted Muslims, but s h e could not explain how she reached that estimate of the number of attackers a n d she never spoke to her neighbors to ascertain if any of them suffered injury. Nasim also contended that her rapists called her when she moved to a different t o w n and threatened her, although she could not explain how these individuals 3

Case: 10-60051 Document: 00511285828 Page: 4 Date Filed: 11/05/2010 No. 10-60051 c o u ld find her in a different community if she did not know who they were and t h e y did not know her identity. I n light of these inconsistencies and contradictions , it is not plain that "no r e a s o n a b le fact-finder could make such an adverse credibility ruling." Wang, 5 6 9 F.3d at 538 (internal quotation marks and citation omitted). The Dhukas' a s y lu m and withholding claims were all based on persecution arising from the a lle g e d assault against Nasim. Because the credibility determinations of the IJ a n d BIA withstand review, the decision to deny relief is supported by substantial e v id e n c e . See Zhang, 432 F.3d at 344-45. In light of this ruling, we need not a d d r e s s the alternative finding that Nasim's testimony, even if credible, did not e s t a b lis h eligibility for asylum or withholding of removal. P E T I T I O N DENIED.

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