Gregory Athayde v. Eric Holder, Jr.
UNPUBLISHED OPINION FILED. [12-60884 Affirmed ] Judge: CDK , Judge: JLW , Judge: PRO Mandate pull date is 10/18/2013 [12-60884]
Date Filed: 08/27/2013
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
August 27, 2013
Lyle W. Cayce
GREGORY ERLICK ATHAYDE,
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A072 826 472
Before KING, WIENER, and OWEN, Circuit Judges.
Gregory Erlick Athayde, a citizen and native of India, petitions this court
for review of the decision of the Board of Immigration Appeals (BIA) and the
Immigration Judge (IJ) denying his application for withholding of removal.
Athayde sought protection in the immigration court under the Convention
Against Torture Act (CAT), but he has not pursued that claim in his petition for
review. Consequently, he has abandoned that claim on appeal. See CalderonOntiveros v. INS, 809 F.2d 1050, 1052 (5th Cir. 1986).
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 08/27/2013
Contending that the BIA and IJ’s adverse credibility findings are not
substantiated by the record, Athayde argues that his testimony was truthful and
that there were no material discrepancies between his oral testimony and the
documentary evidence that he presented in support of his application. He
further argues that the IJ did not give him the opportunity to explain the
inconsistencies in his testimony and did not seek corroborating evidence from
He complains that the IJ placed too much weight on his
misrepresentations made in a prior immigration application and on his omission
of specific facts regarding his persecution.
Under the REAL ID Act of 2005, “an 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 asylum applicant is not credible.”
Wang v. Holder, 569 F.3d 531, 538 (5th Cir. 2009) (internal quotation marks and
citation omitted) (emphasis in original). Credibility determinations are entitled
to deference “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).
Substantial evidence supports the adverse credibility determination made
by the IJ and BIA. See Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006).
Although Athayde categorized the Valentine’s Day incident as the most
significant personal attack made on him by the police and fundamentalist groups
in India, he provided three different accounts of the events that allegedly
occurred during that incident. It was not plausible for him to have forgotten or
to have been confused about whether he was beaten by a Rashtriya Swaya
Sangh leader, or whether he was arrested with his father and beaten with sticks
on his feet by a police officer, or whether his legs were burned with hot rods by
Contrary to his arguments, the record reflected that the IJ gave Athayde
an ample opportunity during the second hearing to explain the type of torture
Date Filed: 08/27/2013
that he was subjected to during the incident, but he failed to provide any
credible explanation for the differences in his accounts. Further, the IJ did not
rely solely on the discrepancies in Athayde’s accounts of the incident. The IJ and
BIA both recognized that despite his providing numerous statements of support
by family members and long-term friends, none of the statements indicated that
he had been personally subjected to any persecution while in India, and none
mentioned the incident on Valentine’s Day weekend. It was also reasonable for
the IJ to infer that Athayde’s credibility was suspect based on his admission of
lying on multiple occasions to immigration officials in order to obtain work
authorizations. Athayde’s failure to seek protection during the 1996 removal
proceedings also diminished the credibility of his claims of past persecution.
Given the totality of the circumstances, including the material
discrepancies and inconsistencies in the accounts of his persecution, Athayde has
failed to show that “it is plain that no reasonable fact-finder could make such an
adverse credibility ruling.” See Wang, 569 F.3d at 538 (internal quotation marks
and citations omitted). In the absence of presenting credible testimony or what
should have been easily available corroborating evidence, he has not presented
evidence “so compelling that no reasonable fact finder could fail to find” a clear
probability of persecution.
See id. (internal quotation marks and citation
omitted). Accordingly, the rejection of Athayde’s withholding claim is supported
by substantial evidence. See Chen, 470 F.3d at 1134. His petition for review is
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