# United States Court **of Appeals**  **f or 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 advance s four arguments on appeal.

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED June 3, 2022
Lyle W. Cayce Clerk Case: 21-60458 Document: 00516342672 Page: 1 Date Filed: 06/03/2022No. 21

- 60458

2 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 The **BIA** did not base its decision on the Third Country Transit Bar , presumably because it realized the rule was no longer in effect.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 r eview
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 (5t h 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, 22 5 (5th Cir. 2018) ). “T he factfinder may rely on any inconsistency or Case: 21-60458 Document: 00516342672 Page: 2 Date Filed: 06/03/2022No. 21

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3 omission to determine that t he 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 coul d 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 hou se 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 injure d, 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
l ip 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 testi mony, 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, 90 7

– 0 8 (5th Cir. 2002) (affirming denial of CAT claim where petitioner lacked credibility and failed to Case: 21-60458 Document: 00516342672 Page: 3 Date Filed: 06/03/2022No. 21

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4 “ produce corroborating evidence that would clarify his inexcusably inconsistent testimony ”).
The petition for review is **DENIED**

. Case: 21-60458 Document: 00516342672 Page: 4 Date Filed: 06/03/2022