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Upadhyay v. Gonzales, 05-60116 (2005)

Court: Court of Appeals for the Fifth Circuit Number: 05-60116 Visitors: 94
Filed: Nov. 18, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS November 18, 2005 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 05-60116 Summary Calendar KISHORE PRASAD UPADHYAY, ET AL., Petitioners, v. ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL, Respondent. - Petition for Review of an Order of the Board of Immigration Appeals, BIA No. A95 552 750 - Before JOLLY, DAVIS, and OWEN, Circuit Judges. PER CURIAM:* Kishore Prasad Upadhyay, his wife, and minor daug
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                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                       IN THE UNITED STATES COURT OF APPEALS
                                                                                       November 18, 2005
                                FOR THE FIFTH CIRCUIT
                                                                                    Charles R. Fulbruge III
                                                                                            Clerk
                                           No. 05-60116
                                         Summary Calendar


KISHORE PRASAD UPADHYAY, ET AL.,

                                                      Petitioners,

v.

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

                                                      Respondent.

                                         --------------------
                                    Petition for Review of an
                           Order of the Board of Immigration Appeals,
                                      BIA No. A95 552 750
                                         --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

       Kishore Prasad Upadhyay, his wife, and minor daughter, all natives and citizens of Nepal,

petition this court to review an order of the Board of Immigration Appeals (BIA), affirming, without

opinion, the immigration judge’s (IJ) denial of an application for asylum, withholding of removal, and

relief under the Convention Against Torture (CAT). Petitioners claim that the IJ erroneously

concluded that Mr. and Mrs. Upadhyah were not credible and ignored substantial evidence that they

faced past and future persecution and torture based on Mr. Upadhyah’s political affiliation with the


       *
         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
Nepali congress. When, as here, the BIA summarily affirms the IJ’s decision, this court may review

the IJ’s decision. See Mikhael v. INS, 
115 F.3d 299
, 302 (5th Cir. 1997).

       “We give great deference to an [IJ’s] decisions concerning an alien’s credibility,” Efe v.

Ashcroft, 
293 F.3d 899
, 903 (5th Cir. 2002), and we “‘will not review decisions turning purely on

the [IJ’s] assessment of the alien petitioner’s credibility.’” Chun v. INS, 
40 F.3d 76
, 78 (5th Cir.

1994). We will uphold a finding that an alien is not entitled to relief if that finding is supported by

substantial evidence. See Ontunez-Tursios v. Ashcroft, 
303 F.3d 341
, 350-51 (5th Cir. 2002). Under

substantial evidence review, we may not reverse a factual finding unless the evidence compels a

contrary conclusion. 
Chun, 40 F.3d at 78
.

       In this case, the IJ carefully detailed the inconsistencies, contradictions, and omissions

underlying the determination that Mr. and Mrs. Upadhyay were not credible. Based on the record,

we co nclude that the IJ’s decision is supported by substantial evidence and the record does not

compel a contrary conclusion. See 
Chun, 40 F.3d at 78
. As to petitioners’ CAT claim, the record

does not compel the conclusion that Nepali government officials would inflict, instigate, consent to

or acquiesce in petitioners’ torture. See 8 C.F.R. § 208.18(a)(1).



PETITION DENIED.




                                                  2

Source:  CourtListener

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