Alam v. Garland
19-60797
| 5th Cir. | Jul 21, 2021Background
- Petitioner Kazi Ashraful Alam, a Bangladeshi national, sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT).
- An Immigration Judge (IJ) denied all relief, primarily based on an adverse credibility finding; the IJ also made alternative findings on past persecution, future fear, and nexus.
- The Board of Immigration Appeals (BIA) affirmed the IJ’s adverse credibility determination and treated that finding as dispositive, not reaching the IJ’s alternative factual findings.
- Alam challenged the BIA’s adverse credibility ruling and the denials of CAT relief and humanitarian asylum in a petition for review to this Court.
- The BIA concluded Alam’s briefing failed to adequately challenge the CAT denial and did not address humanitarian asylum; the Fifth Circuit held those claims unexhausted and jurisdictionally barred.
- On the credibility issue the court held that substantial evidence supported the BIA/IJ adverse credibility determination based on multiple inconsistencies between Alam’s testimony and documentary evidence.
Issues
| Issue | Alam's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the BIA erred in affirming the IJ’s adverse credibility finding | BIA wrongly affirmed; testimony was credible | BIA properly relied on specific inconsistencies and omissions in the record | Affirmed: substantial evidence supports adverse credibility |
| Whether Alam’s CAT claim is reviewable on appeal | CAT relief merited and should be reviewed | CAT claim was not adequately raised before the BIA (unexhausted) | Dismissed for failure to exhaust (jurisdictional bar) |
| Whether humanitarian asylum was properly denied | IJ should have granted humanitarian asylum | Claim was not raised before the BIA (unexhausted) | Dismissed for failure to exhaust (jurisdictional bar) |
| Whether this Court may review the IJ’s alternative findings on persecution, future fear, and nexus | IJ erred on past persecution and future fear | Court lacks jurisdiction to review IJ findings not relied on by the BIA | Court lacks jurisdiction to review those IJ findings |
Key Cases Cited
- Zhu v. Gonzales, 493 F.3d 588 (5th Cir. 2007) (limits appellate review to the BIA’s decision unless the IJ’s decision affected the BIA’s ruling)
- Wang v. Holder, 569 F.3d 531 (5th Cir. 2009) (same principle on reviewing IJ vs. BIA decisions)
- Omari v. Holder, 562 F.3d 314 (5th Cir. 2009) (administrative exhaustion requirement for issues not raised before the BIA)
- Roy v. Ashcroft, 389 F.3d 132 (5th Cir. 2004) (failure to exhaust creates a jurisdictional bar)
- Avelar-Oliva v. Barr, 954 F.3d 757 (5th Cir. 2020) (credibility determinations must be supported by specific, cogent reasons)
- Ghotra v. Whitaker, 912 F.3d 284 (5th Cir. 2019) (BIA satisfies substantial-evidence review when it identifies specific inconsistencies and omissions)