Linda Chambara v. Loretta Lynch

Filing

UNPUBLISHED OPINION FILED. [15-60578 Affirmed ] Judge: WED , Judge: LHS , Judge: SAH Mandate pull date is 12/05/2016; granting motion for summary affirmance filed by Respondent Ms. Loretta Lynch, U. S. Attorney General [8052061-2]; denying motion to extend time to file appellee's brief filed by Respondent Ms. Loretta Lynch, U. S. Attorney General [8052061-3] [15-60578]

Case: 15-60578

Document: 00513716770

Page: 1

Date Filed: 10/13/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-60578
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
October 13, 2016
Lyle W. Cayce
Clerk

LINDA TAURAI CHAMBARA,
Petitioner
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A098 710 923
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *

Linda Taurai Chambara, a native and citizen of Zimbabwe, petitions for
review of the decision of the Board of Immigration Appeals upholding the
denial by the immigration judge of her application seeking withholding of
removal and protection under the Convention Against Torture.

The

immigration judge and the Board, each citing numerous inconsistencies and
omissions in Chambara’s two asylum applications and in her testimony at

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Document: 00513716770

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No. 15-60578
hearings, determined that she was not credible and that her claims for relief
therefore failed.
Because the Board approved of and relied upon the immigration judge’s
decision, we may review the decisions of both. See Wang v. Holder, 569 F.3d
531, 536 (5th Cir. 2009). Our review of rulings of law is de novo, and we review
findings of fact for substantial evidence. Zhu v. Gonzales, 493 F.3d 588, 594
(5th Cir. 2007). An immigration court’s conclusion that an alien is not credible
is a factual finding subject to review for substantial evidence. Chun v. INS, 40
F.3d 76, 78–79 (5th Cir. 1994).
Chambara argues that the Board’s adverse credibility determination is
not supported by substantial evidence because some of the inconsistencies
noted did not go to the heart of her claim concerning the events that were the
basis of her motion to reopen due to changed country conditions.

This

contention fails, as under the REAL ID Act, a court can rely on any
inconsistency or omission to make an adverse credibility determination so long
as the totality of the circumstances shows the applicant is not credible. See
Wang, 569 F.3d at 538–39.
To the extent Chambara argues the immigration judge erred by failing
to take into account the prejudice caused by her former attorney, who filed her
first application for relief, her assertion is not supported by the record. Both
the immigration judge and the Board of Immigration Appeals considered
Chambara’s contention that she did not prepare the account of events set forth
in the application, but determined that Chambara had eventually signed the
application, thereby attesting to its truth. An applicant’s signature on an
asylum application “establishes a presumption that the applicant is aware of
the contents of the application.” 8 C.F.R. § 1208.3(c)(2).

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Accordingly, Chambara fails to establish that no reasonable fact finder
could have made an adverse credibility determination in this matter. See
Wang, 569 F.3d at 538–39. Absent credible evidence, Chambara failed to meet
her burden for withholding of removal. See Zhang v. Gonzales, 432 F.3d 339,
345 (5th Cir. 2005). Further, Chambara’s claim for protection under the
Convention Against Torture was based on the same factual assertions as her
claim for withholding of removal. Therefore, to the extent that Chambara
challenges the denial of protection under the Convention, her claim fails on the
basis of the adverse credibility determination discussed above. See Efe v.
Ashcroft, 293 F.3d 899, 907–08 (5th Cir. 2002).
Chambara also claims that the Board of Immigration Appeals violated
her Fifth Amendment rights. Aliens in immigration proceedings are entitled
to due process under the the Fifth Amendment. See Toscano-Gil v. Trominski,
210 F.3d 470, 473 (5th Cir. 2000). To obtain relief, the alien must establish
that the due process violation resulted in substantial prejudice. Id.
Here, although Chambara’s brief provides the legal framework for a
procedural due process claim, she fails to indicate how the Board of
Immigration Appeals violated her due process rights in this matter, or how its
actions caused substantial prejudice, aside from a conclusory and unsupported
statement that she was clearly prejudiced by the court’s actions. Because she
has not properly briefed the issue, Chambara has waived it. See United States
v. Williams, 400 F.3d 277, 283 (5th Cir. 2005).
Chambara’s petition for review is DENIED, the Attorney General’s
motion for summary affirmance is GRANTED, and the alternative request for
additional time to file a brief is DENIED.

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