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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60150

Summary Calendar

AAMIR AHMED,

 Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

 Respondent

Petition for Review of an Order of the 

Board of Immigration Appeals

BIA No. A88 060 275

Before KING, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:*

Petitioner Aamir Ahmed (“Ahmed”), a native and citizen of Pakistan, seeks

review of an order of the Board of Immigration Appeals (“BIA”). The BIA

dismissed Ahmed’s appeal of the Immigration Judge’s (“IJ”) denial of his

applications for withholding of removal, protection pursuant to the regulations

United States Court of Appeals

Fifth Circuit

F I L E D

February 23, 2010

Charles R. Fulbruge III

Clerk

Case: 09-60150 Document: 00511033864 Page: 1 Date Filed: 02/23/2010
No. 09-60150

2

under the United Nations Convention Against Torture (“CAT”), and cancellation

of removal. We deny the petition.

I. BACKGROUND

Ahmed is a native and citizen of Pakistan, who was admitted to the United

States as a temporary visitor on or about April 24, 1995. On April 27, 2007, the

Department of Homeland Security (“DHS”) served Ahmed with a Notice to

Appear (“NTA”), charging him with removability pursuant to section 237(a)(1)(B)

of the INA, 8 U.S.C. § 1227(a)(1)(B), as an alien who remained in the United

States for a time longer than permitted. The DHS also charged Ahmed with

removability pursuant to section 237(a)(3)(D) of the INA, 8 U.S.C. §

1227(a)(3)(D), as an alien who falsely represented himself to be a citizen of the

United States in order to obtain a benefit under the INA or any other federal

law. This charge arose out of Ahmed falsely representing himself to be a U.S.

citizen in order to obtain a voter registration certificate in Harris County, Texas.

On September 19, 2007, Ahmed appeared before the IJ, admitting the

allegations in the NTA but denied removability pursuant to section 237(a)(3)(D).

 At a hearing regarding that charge, the IJ found that the Government met its

burden of proving that Ahmed submitted the voter registration application by

clear and convincing evidence. 

On March 20, 2008, Ahmed appeared again in Immigration Court for a

merits hearing regarding his applications for withholding of removal and

protection pursuant to CAT based on religion. He claimed that as a former

Muslim, who converted to Christianity, he feared persecution if returned to

Pakistan. He also sought a cancellation of removal. 

To support his applications, Ahmed testified that he feared that he would

be killed by either his family or another Muslim if he returned to Pakistan

because he is now a Christian. When questioned about the circumstances

surrounding his conversion to Christianity, Ahmed claimed that he decided to

Case: 09-60150 Document: 00511033864 Page: 2 Date Filed: 02/23/2010
No. 09-60150

3

become a Christian while in the hospital in the wake of a beating he suffered in

New York. He also testified that he attended church regularly but had not been

in three or four months. 

Moreover, during his testimony Ahmed claimed that his removal would

result in exceptional and extremely unusual hardship to his young daughter, a

United States citizen. He testified that he would not be able to bring her with

him to Pakistan because his family or other Muslims will kill her because she is

a Christian. When questioned about allegedly signing the voter registration

certificate claiming to be a United States citizen, he admitted that the signature

appeared to be his own but claimed that a cousin might have forged his

signature because he was jealous of him.

The IJ denied Ahmed’s application for withholding of removal and

protection pursuant to CAT because he found that Ahmed’s testimony was not

credible due to numerous inconsistencies. The IJ also noted that even if

Ahmed’s testimony was true, his application for withholding and protection

pursuant to CAT would not be granted because he did not demonstrate an

objective clear probability of persecution if returned to Pakistan or that it is

more likely than not that he will be persecuted or tortured upon his return there.

The IJ also denied Ahmed’s application for cancellation of removal. 

 II. DISCUSSION

A. Withholding of Removal and CAT Claim

We review the BIA’s denial of an application for withholding of removal

and protection under CAT under the substantial evidence test. Under this

standard of review, reversal is improper unless we decide “not only that the

evidence supports a contrary conclusion, but also that the evidence compels it.”

Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005) (citing Chun v. INS, 40 F.3d

76, 78 (5th Cir. 1994). We review the BIA’s decision and only consider the IJ’s

Case: 09-60150 Document: 00511033864 Page: 3 Date Filed: 02/23/2010
No. 09-60150

4

decision to the extent that it impacted the BIA’s determination. Wang v. Holder,

569 F.3d 531, 536 (5th Cir. 2009). 

In this case, the IJ denied Ahmed’s petition for withholding of removal and

protection under CAT because he had failed to meet his burden of proving

eligibility by providing credible evidence to support his claims . The Real ID Act

of 2005 allows the trier of fact to make a credibility determination “without

regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart

of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). Adverse credibility

determinations must be supported by specific and cogent reasons derived from

the record. Zhang v. Gonzalez, 432 F.3d 339 (5th Cir. 2005). 

The IJ determined that Ahmed was not credible, and he fails to show, as

he must to prevail on review, that the record evidence compels the contrary

conclusion. The IJ cited numerous instances of material inconsistencies in

Ahmed’s testimony. For instance, while Ahmed indicated in his asylum

application that he was forced to practice Islam under the threat of death, and

that he protested against this, he denied that he protested against Islam in his

testimony. While he claimed to fear persecution in Pakistan because of his

purported religious conversion, Ahmed’s testimony was also inconsistent

concerning his church attendance. He initially claimed that he did not attend

church regularly, but later stated that he attended three different churches

although he could not recite basic information about any of the churches,

including their names or locations. Moreover, the record reveals significant

discrepancies regarding how exactly Ahmed’s signature appeared upon the voter

registration certificate, his knowledge concerning when his visa expired, and

reasons for staying in the United States after his visa expired. 

On appeal, Ahmed first argues that the IJ erred because any

inconsistencies in his testimony regarding whether he converted to Christianity

were inconsequential. This argument has no merit. The central reason why

Case: 09-60150 Document: 00511033864 Page: 4 Date Filed: 02/23/2010
No. 09-60150

5

Ahmed claimed that his removal should be withheld is because he allegedly

would be persecuted upon his return to Pakistan because of his conversion to

Christianity. Thus, any inconsistencies in his testimony concerning his religious

conversion were material, particularly since he alleged that he would be tortured

because of it. 

Ahmed next argues that the various inconsistencies in his testimony that

the IJ noted were the result of his inability to understand English. Because

Ahmed did not raise this argument before the BIA, he has not exhausted his

administrative remedies. As such, this court lacks jurisdiction to consider this

argument. See 8 U.S.C. § 1252(d)(1); Wang v. Ashcroft, 260 F.3d 448, 452-53

(5th Cir. 2001). Similarly, we lack jurisdiction to address Ahmed’s argument

that the IJ erred because he mistakenly referenced “Lebanon” rather than

“Pakistan” while discussing country conditions for Christians. The BIA, in

reviewing the IJ’s decision, did not adopt the IJ’s discussion of current country

conditions in Pakistan, which included the mistaken reference to Lebanon rather

than Pakistan. See Girma v. INS, 283 F.3d 664, 666 (5th Cir. 2002) (where the

BIA does not adopt the decision of the IJ, the IJ’s decision is not before the court

on review).

B. Cancellation of Removal

The Attorney General has discretion to cancel the removal of a

non-permanent resident if the alien has shown: (1) a continuous physical

presence of not less than 10 years; (2) good moral character; (3) a lack of certain

criminal convictions; and (4) exceptional and extremely unusual hardship to a

qualifying relative. INA § 240A(b); 8 U.S.C. § 1229b(b). On appeal, Ahmed’s

claims that the IJ abused its discretion by denying his cancellation of removal,

and ruling that Ahmed had not established that his removal would result in

“exceptional and extremely unusual hardship” to his child pursuant to section

240A(b)(1)(D) of the INA, 8 U.S.C. § 1229b(b)(1)(D). 

Case: 09-60150 Document: 00511033864 Page: 5 Date Filed: 02/23/2010
No. 09-60150

6

Pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), this court does not have

jurisdiction to review “any judgment regarding the granting of relief under

section . . . 229b.” This provision is not applicable where the appeal involves

constitutional claims or questions of law. See 8 U.S.C. § 1252(a)(2)(D). Ahmed’s

request for cancellation of removal, however, involves neither. Therefore, this

court does not have jurisdiction to review the IJ’s discretionary determination

that Ahmed’s daughter, who is an American citizen, would not suffer an

“exceptional and extremely unusual hardship” by his removal. See Rueda v.

Ashcroft, 380 F.3d 831, 831 (5th Cir. 2004); Mireles-Valdez v. Ashcroft, 349 F.3d

213, 216 (5th Cir. 2003).

Our holding that we lack jurisdiction to review one of the four threshold

eligibility factors under § 240A(b) is a sufficient basis alone for us to affirm the

IJ’s denial of relief. For this reason, we need not address the other grounds

upon which Ahmed challenges the IJ’s decision. See Garcia- Melendez v.

Ashcroft, 351 F.3d 657, 661 (5th Cir. 2003). 

III. CONCLUSION

For the reasons stated above, we DENY the petition for review.

Case: 09-60150 Document: 00511033864 Page: 6 Date Filed: 02/23/2010