Case: 17-60443    Document: 00514625263     Page: 1   Date Filed: 08/31/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                 No. 17-60443                       August 31, 2018
                               Summary Calendar                      Lyle W. Cayce
                                                                          Clerk

SONIA GUADALUPE RIVAS DE ORTEGA; JUAN FRANCISCO ORTEGA-
HERRERA; ELIDA GUADALUPE ORTEGA-RIVAS; JUAN FRANCISCO
ORTEGA-RIVAS; JERSON RODRIGO ORTEGA-RIVAS,

             Petitioners

v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

             Respondent




                      Petition for Review of an Order of the
                         Board of Immigration Appeals
                            BIA Nos. A202 003 087
                                        A202 003 088
                                        A202 003 089
                                        A202 003 090
                                        A206 187 582


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
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                                      No. 17-60443
PER CURIAM:*
       Sonia Guadalupe Rivas De Ortega, Juan Francisco Ortega-Herrera, and
their three children Elida Guadalupe Ortega-Rivas, Juan Francisco Ortega-
Rivas, and Jerson Rodgrigo Ortega-Rivas, are natives and citizens of El
Salvador. 1 They petition for review of the decision by the Board of Immigration
Appeals (BIA) affirming the denial by the Immigration Judge (IJ) of their
applications for asylum, withholding of removal, and protection under the
Convention Against Torture. The crux of their petition is that when Ortega-
Herrera served as a member of El Salvador’s Civil National Police, corrupt
police officers began threatening him and his family when he failed to comply
with their orders to tamper with an investigation, and they fear for their safety
if they return to El Salvador.
       While we generally have authority to review only the BIA’s decision, we
may review the IJ’s decision if the BIA adopts it. 2 Because the BIA adopted
and elaborated upon the IJ’s decision, we consider both. The IJ determined
that the petitioners were not entitled to relief because their accounts were not
credible, and that regardless, they had failed to sustain their burdens of proof
on their claims.
       An immigration court’s findings of fact are reviewed for substantial
evidence. 3 This includes determinations that an alien is not eligible for asylum,



       * 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.
       1 Rivas De Ortega’s application for asylum in December 2014 listed Ortega-Herrera
and the three children as derivative beneficiaries. Ortega-Herrera and the children
subsequently filed individual applications for withholding of removal and protection under
the convention Against Torture. All of the petitioners raise virtually identical claims.
       2 Wang v. Holder, 

, 536 (5th Cir. 2009).
       3 

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                                     No. 17-60443
withholding of removal, or relief under the Convention Against Torture. 4
Under the substantial evidence standard, we may only reverse those findings
if “the evidence was so compelling that no reasonable factfinder could conclude
against it.” 5
       The petitioners challenge the IJ’s adverse credibility determination on a
number of grounds. We do not have jurisdiction to consider several of these
grounds because they were not exhausted before the BIA. 6 In their briefing to
the BIA, the petitioners noted that while the form I-213 had referenced a sworn
statement made by Ortega-Herrera, the IJ had been unable to locate it in
evidence; they argued that this conflicted with the IJ’s subsequent reference to
the sworn statement. Petitioners did not, however, raise their present
argument that the absence of the Record of Sworn Statement rendered the
form I-213 unreliable. Similarly, they did not raise the IJ’s alleged failures to
give them a chance to explain inconsistencies in their testimony or to consider
certain threatening phone calls. We may not review these issues before the
petitioners have exhausted them with the BIA.
       As for the petitioners’ other critiques of the IJ’s adverse credibility
determination, the 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.” 7 We will “defer . . . to an
IJ’s credibility determination unless, from the totality of the circumstances, it
is plain that no reasonable fact-finder could make such an adverse credibility




       4 Zhang v. Gonzales, 

, 344 (5th Cir. 2005).
       5 

.
       6 See 8 U.S.C. § 1252(d)(1); Omari v. Holder, 

, 318–19 (5th Cir. 2009).
       7 

(quoting Lin v. Mukasey, 

, 167 (2d Cir. 2008),

with approval) (internal quotation marks omitted).
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                                         No. 17-60443
ruling.” 8 Throughout this review, we remain mindful of the IJ’s unique ability
to assess credibility by observing the demeanor of the petitioners in relation to
any inconsistencies. 9
       The IJ concluded that the petitioners’ account of Ortega-Herrera’s
experience was not credible because from when Ortega-Herrera first entered
the United States and explained his circumstances to multiple immigration
officers to when he testified before the immigration court, his account escalated
in terms of the fear and violence he claimed he had experienced. 10 The IJ
additionally questioned Ortega-Herrera’s account that he was threatened
months after he had already failed to comply with the corrupt officers’ orders,
Rivas De Ortega’s vague descriptions of the black truck that allegedly placed
them in fear, Rivas De Ortega’s willingness to go to the police statement to
obtain documents to support Ortega-Herrera despite her alleged fear of the
police, and the fact that those documents referenced gang threats, rather than
police corruption, as a basis for Ortega-Herrera to be in danger. 11 Under the
circumstances, the totality of the evidence in the petitioners’ favor is not so
compelling that no reasonable factfinder could fail to find their account




       8 

534 F.3d at 167).
       9 See 8 U.S.C. § 1158(b)(1)(B)(iii); 

–40.
       10 Petitioners rely heavily on Singh v. Gonzalez, 

(9th Cir. 2005), a Ninth

Circuit case concerning the reliability of asylum officer notes. As we have previously
recognized, Singh was not governed by the REAL ID Act of 2005, which gave IJs more
discretion in credibility determinations. See Nyemb v. Holder, 404 F. App’x 926, 927 n.2 (5th
Cir. 2010) (per curiam); see also 8 U.S.C. § 1158(b)(B)(iii) (setting forth permissible credibility
determinations).
       11 The IJ specifically noted the fact that while Ortega-Herrera and Rivas De Ortega

claimed that Ortega-Herrera had told no one about the alleged threats besides Rivas De
Ortega and the police chaplain, the letter from the police chaplain discussed gang threats,
but made no reference to police corruption.
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                                       No. 17-60443
credible. 12 In light of these adverse credibility determinations, we cannot
conclude that the BIA erred in affirming the IJ’s denial of their applications. 13
       The petitioners further argue that even if the adverse credibility
determinations supported the IJ’s denial of their asylum and withholding of
removal claims, the BIA erred in failing to independently analyze their claim
for protection under the Convention Against Torture. 14 The BIA’s discussion of
petitioners’ Convention Against Torture claim was admittedly brief, and would
likely not suffice if that were all we were entitled to review. 15 The BIA
incorporated the IJ’s findings, however, which included a separate analysis of
the Convention Against Torture claim emphasizing the adverse credibility
determination and the fact that “Respondents have never been tortured in the
past, nor does the evidence suggest that they are at any particular risk of harm
in the future.” Given the evidence and adverse credibility determination, which
bore not just upon the validity of the petitioners’ claims for asylum and
withholding of removal but also on the veracity of their overall account, the
BIA could reasonably conclude that the petitioners had not shown that it was
more likely than not that they would be tortured upon their return, or that




       12   See 

.
       13   See Dayo v. Holder, 

, 657–59 (5th Cir. 2012); Chun v. I.N.S., 

, 79 (5th Cir. 1994) (per curiam).
         14 The respondent argues that the petitioners failed to exhaust their Convention

Against Torture claim because they failed to raise it in their brief before the BIA. This would
ordinarily be the case, but it is appropriate for us to “address an issue on the merits when
the BIA has done so, even if the issue was not properly presented to the BIA itself.” Lopez-
Dubon v. Holder, 

, 644 (5th Cir. 2010). Because the BIA considered the
Convention Against Torture claim and effectively applied the same approach as the IJ, we
have jurisdiction to consider whether the BIA properly disposed of the issue.
         15 See Cabrera v. Sessions, 

, 162 (5th Cir. 2018) (“We do not require the

BIA to specifically address every piece of evidence before it, but it is error for the agency to
fail to address key evidence.” (internal quotation marks and alterations omitted)).
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                                       No. 17-60443
such torture would occur by or with the acquiescence of El Salvador’s
government. 16
       The petition for review is DISMISSED IN PART for lack of jurisdiction
and DENIED IN PART.




       16 See Garcia v. Holder, 

, 891 (5th Cir. 2014) (laying out the requirements
for protection under the Convention Against Torture).
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