Alma Kurgas v. Loretta Lynch
UNPUBLISHED OPINION FILED. [15-60499 Affirmed] Judge: WED, Judge: LHS, Judge: SAH. Mandate pull date is 04/07/2017 [15-60499]
Date Filed: 02/14/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
February 14, 2017
Lyle W. Cayce
JEFF SESSIONS, U. S. ATTORNEY GENERAL,
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A087 769 720
Before DAVIS, SOUTHWICK and HIGGINSON, Circuit Judges.
PER CURIAM: *
Alma Kurgas petitions for review of a decision of the Board of
Immigration Appeals (BIA) affirming the denial of her application for asylum,
withholding of removal, and protection under the Convention Against Torture
(CAT) following an adverse credibility determination by the immigration judge
(IJ). Because the BIA reviewed the IJ’s credibility finding for clear error, we
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 02/14/2017
will review the IJ’s decision to the extent it impacted the decision of the BIA.
See Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009).
According to Kurgas, the BIA and the IJ applied an erroneous legal
standard in evaluating her credibility because they failed to weigh the totality
of the circumstances as required by 8 U.S.C. § 1158(b)(1)(B)(iii). We find no
merit in this argument, as the record reflects that the IJ and the BIA properly
considered the totality of the circumstances. See Wang, 569 F.3d at 538. To
the extent Kurgas asserts that the IJ and BIA erroneously relied on peripheral
or non-substantive issues in evaluating credibility, the factfinder may rely on
“any inaccuracies or falsehoods” in the applicant’s “statements, without regard
to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant’s claim.” § 1158(b)(1)(B)(iii).
In addition, Kurgas asserts that, with the exception of the transcripts of
her border interviews on November 22, 2009, and November 23, 2009, she has
consistently asserted a fear of returning to Montenegro. She attributes her
contradictory statements in the initial interviews to poor translation by the
interpreters. However, as the BIA and the IJ noted, only the questions and
responses concerning her reasons for coming to the United States and her fear
of returning to Montenegro were allegedly translated incorrectly. Her personal
and family history were translated accurately. Moreover, documentation of
the interviews reflects that Kurgas had the benefit of Serbian interpreters and
that she understood the questioning. We will not set aside the credibility
determination on this basis because the record does not compel belief in her
story. See Wang, 569 F.3d at 539.
To the extent Kurgas also asserts that border interviews generally are
known to be unreliable, the IJ must determine removability “based only on the
evidence produced at the hearing,” 8 U.S.C. § 1229a(c)(1)(A). Our review
Date Filed: 02/14/2017
likewise is limited to the administrative record on which the order of removal
was based. 8 U.S.C. § 1252(b)(4)(A). We further decline to review findings that
were not relied upon by the BIA in its final decision, such as the IJ’s findings
that Kurgas was able to understand English and that she had inconsistently
described her relation to a cousin. See Wang, 569 F.3d at 536 (noting that this
court reviews only the decision of the BIA “unless the IJ’s decision has some
impact on the BIA’s decision”).
Finally, Kurgas alleges that she was denied due process because of errors
by the BIA and IJ in evaluating her credibility and because the IJ prejudged
her claims following a remand by the BIA to consider her testimony from the
credible fear hearing. Kurgas does not address whether she was eligible for
asylum, withholding of removal, or relief under the CAT or whether “[s]he
could have made a strong showing” in support of those claims in the absence
of the alleged due process violations. Anwar v. INS, 116 F.3d 140, 144 (5th
Cir. 1997). By failing to brief the relevant criteria for establishing substantial
prejudice, see id., she has forfeited her due process claims, see United States v.
Williams, 400 F.3d 277, 283 (5th Cir. 2005).
The petition for review is DENIED.
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