United States Court of Appeals

for the Fifth Circuit

No. 21-60458

Kamaljeet Singh Masi, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A203 602 089

Before Jolly, Willett, and Engelhardt, Circuit Judges. 

Per Curiam:*

Kamaljeet Singh Masi, a native and citizen of India, petitions for 

review of a decision of the Board of Immigration Appeals. The BIA upheld 

the Immigration Judge’s denial of Singh Masi’s application for asylum, 

withholding of removal, and relief under the Convention Against Torture. 

Singh Masi advances four arguments on appeal. 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 3, 2022

Lyle W. Cayce

Clerk

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First, Singh Masi argues that the Immigration Judge improperly relied 

on the “Third Country Transit Bar.” 8 C.F.R. § 1208.13(c)(4). When the IJ

denied Singh Masi’s claim, the rule was still in effect. The rule was vacated 

shortly after the IJ denied his claim but before the BIA considered his appeal. 

See Cap. Area Immigrants’ Rts. Coal. v. Trump, 471 F. Supp. 3d 25, 59 (D.D.C. 

2020), appeal dismissed as moot sub nom. I.A. v. Garland, No. 20-5271, 2022 

WL 696459 (D.C. Cir. Feb. 24, 2022). The BIA did not base its decision on 

the Third Country Transit Bar, presumably because it realized the rule was 

no longer in effect. In fact, it did not even mention the rule. “Our review 

considers the IJ’s reasoning only insofar as the BIA’s decision incorporated 

it.” Tabora Gutierrez v. Garland, 12 F.4th 496, 501 (5th Cir. 2021). While the 

IJ relied on the Third Country Transit Bar, the BIA did not, so the rule is 

irrelevant to this appeal. 

Second, Singh Masi argues that the BIA should have granted him 

“past-persecution only asylum,” or “humanitarian asylum.” He argues that 

even if the BIA were right that he failed to show a well-founded fear of future 

persecution, his past persecution was severe enough to entitle him to asylum. 

See, e.g., Matter of Chen, 20 I. & N. Dec. 16, 19 (B.I.A. 1989); Lal v. INS, 255 

F.3d 998, 1003, amended on reh’g, 268 F.3d 1148 (9th Cir. 2001) (finding 

applicants were eligible for asylum based on the severity of their past 

persecution). But because this claim was not presented to the BIA, we lack 

jurisdiction to consider it. See Omari v. Holder, 562 F.3d 314, 318-19 (5th Cir. 

2009) (reviewing courts lack jurisdiction to review claims not raised before 

the BIA); see also 8 U.S.C. § 1252(d).

Third, Singh Masi argues that the BIA’s adverse credibility 

determination was in error. “[I]t is the factfinder’s duty to make 

determinations based on the credibility of the witnesses.” Avelar-Oliva v. 

Barr, 954 F.3d 757, 767 (5th Cir. 2020) (quoting Singh v. Sessions, 880 F.3d 

220, 225 (5th Cir. 2018)). “The factfinder may rely on any inconsistency or 

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omission to determine that the petitioner is not credible in light of the totality 

of the circumstances, regardless of whether the inconsistency or omission 

goes to the heart of the applicant’s claim.” Id. (citing Ghotra v. Whitaker, 912 

F.3d 284, 289 (5th Cir. 2019)); see also 8 U.S.C. § 1158(b)(1)(B)(iii) (factors 

the trier of fact may consider when making a credibility determination). We 

defer to a factfinder’s “credibility determination unless, from the totality of 

the circumstances, it is plain that no reasonable fact-finder could make such 

an adverse credibility ruling.” Id. (quoting Singh, 880 F.3d at 225). Here, that 

daunting standard has not been met because substantial evidence supported 

the BIA’s determination that Singh Masi was not credible. The BIA found 

several implausibilities and inconsistencies in Singh Masi’s testimony. Some 

of these inconsistencies were relatively minor, like variations in his story 

about how many people attacked him, how many shots he heard, where shots 

struck his car, and which uncle’s house his wife was at during a shooting. 

Other inconsistencies were so fundamental that it is more difficult for Singh 

Masi to explain them away, including whether his wife and children fled with 

him to the state of Haranya, what parts of his body were injured, and whether 

his wife had been harmed since he left India. Because Singh Masi’s 

“construction of the evidence is not compelled by the record,” this argument 

is unavailing. Id. at 768. 

Finally, Singh Masi argues that the BIA improperly paid only “token 

lip service” to his Convention Against Torture claim and the evidence 

supporting it. Not so. The BIA found that Singh Masi’s CAT claim suffered 

from the same credibility problem as his claim for asylum. Singh Masi offered 

no evidence corroborating his testimony, and that BIA had found that 

testimony to be unreliable. Denying his claim on that basis was not reversible 

error. See Efe v. Ashcroft, 293 F.3d 899, 907–08 (5th Cir. 2002) (affirming 

denial of CAT claim where petitioner lacked credibility and failed to 

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“produce corroborating evidence that would clarify his inexcusably 

inconsistent testimony”). 

The petition for review is DENIED. 

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