* Pursuant to Fifth Circuit Rule 47.5, the Court has determined that this

order should not be published and is not precedent except under the limited

circumstances set forth in Rule 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-61118

Summary Calendar

ANISHA RAJA BALI DHULASANIYA,

Petitioner,

v.

MICHAEL B. MUKASEY, U.S. Attorney General,

Respondent.

Petition for Review of an Order

of the Board of Immigration Appeals

BIA No. A95-966-101

Before HIGGINBOTHAM, STEWART, and ELROD, Circuit Judges.

PER CURIAM:*

Petitioner Anisha Raja Bali Dhulasaniya applied for asylum before an

immigration judge (IJ) and failed. She appealed to the Board of Immigration

Appeals (BIA) and lost. She now seeks review of the BIA's order in this Court.

Dhulasaniya, a native and citizen of India, entered the United States

without being legally admitted or paroled. She was therefore declared subject to

removal pursuant to § 212(a)(6)(A)(i) of the Immigration and Nationality Act.

Upon appearing before an immigration judge as ordered, Dhulasaniya, alleging

United States Court of Appeals

Fifth Circuit

F I L E D

January 7, 2008

Charles R. Fulbruge III

Clerk
No. 06-61118

2

she suffered persecution in India on account of being a Muslim, applied for

asylum under 8 C.F.R. § 1208.13(b)(1), withholding of removal under 8 C.F.R.

§ 208.16(b), and relief under the Convention Against Torture (CAT), applied

domestically through 8 C.F.R. § 208.16(c).

As evidence of her entitlement to asylum, Dhulasaniya alleged before the

IJ various incidents of past persecution, two of which are of particular

importance to this appeal. First, Dhulasanyia claimed that on March 4, 2002, a

group of approximately 100 Hindus attacked her largely Muslim colony, and

while there, beat and tortured her. [R. at 206]. Second, Dhulasaniya claimed

that, a few weeks after the March 4th incident, "Hindu parties" and police

allegedly abducted Dhulasaniya, confined her for six days, and admonished her

to convert to Hinduism. [R. at 207]. Dhulasaniya predicted that she would

continue to suffer such abuse should she return to India. [R. at 206].

Concluding that Dhulasaniya's accounts of the aforementioned incidents

contained significant inconsistencies, the IJ determined that her testimony was

unreliable, denied Dhulasaniya relief on all grounds asserted, and ordered her

removal. Focusing on the same inconsistencies, the BIA affirmed, concluding

that the IJ's adverse credibility determination was not clearly erroneous.

Dhulashaniya filed a timely petition for review in this Court. See 8 U.S.C. §

1252(b)(1).

I.

In reviewing an order of the BIA, this Court will consider the underlying

decision of the IJ only if it "ha[d] some impact on the BIA's decision."

Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). Because the BIA's decision

rested on its conclusion that the IJ's credibility finding was not clearly

erroneous, we must consider that underlying finding.

As a preliminary matter, the government argues that this Court lacks

jurisdiction to hear this matter due to Dhulasaniya's failure to exhaust her

administrative remedies.
No. 06-61118

3

Section 106(c) of the Immigration and Naturalization Act, codified as 8

U.S.C. § 1252(d)(1), provides that courts may not review final orders of removal

unless the alien "has exhausted all administrative remedies available to the

alien as of right . . . ." "Because it is statutorily mandated, an alien's failure to

exhaust his administrative remedies serves as a jurisdictional bar to our

consideration" of his petition. Wang v. Ashcroft, 260F.3d 448, 452 (5th Cir. 2001)

(citing Townsend v. INS, 799 F.2d 179, 181 (5th Cir. 1986)).

Dhulasaniya's failure to exhaust, according to the government, arises from

her failure to challenge the IJ's adverse credibility determination before the BIA.

As the argument goes, because the IJ's "adverse credibility determination was

the fulcrum ofthe denial of relief and protection," Dhulasaniya's failure to attack

that "fulcrum" on administrative appeal deprives this Court of jurisdiction with

respect to that issue. [Brief at 14]. Although this reasoning is supported by case

law, see, e.g., Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004), the Court

disagrees with its factual premise:the BIA interpreted Dhulasaniya's argument

to be that "the Immigration Judge erred in his adverse credibility finding." [R.

at 6]. The BIA then disagreed, concluding that the IJ's finding was not clearly

erroneous. We read this statement as confirmation that Dhulasaniya in fact

challenged the IJ's credibility determination on administrative appeal, and that

the BIA squarely disposed of that challenge, rendering it eligible for

consideration by this Court. 

The government further argues that Dhulasanyia has waived any

challenge to the IJ's credibility determination due to her failure to attack that

determination in her appellate brief. To be sure, few are the number of express

references in Dhulasaniya's briefto the IJ's credibility finding. The entire thrust

of Dhulasanyia's brief, however, is her contention that she, with her testimony,

established the requisites for relief. It follows that Dhulasaniya is, before this

Court, attacking the IJ's and BIA's conclusions to the contrary, conclusions

based on adverse credibility findings.
No. 06-61118

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Having decided thatthis Court has jurisdiction to entertain Dhulasaniya's

petition, and that the viability of the lower tribunals' credibility findings is an

issue properly before us, we proceed to the merits. 

The provisions under which Dhulasaniya has sought relief all have in

common a requirement that an applicant demonstrate either past persecution,

or a well-grounded fear of future persecution. See generally 8 C.F.R. §§ 1208.13,

1208.16. In attempting to prove her eligibility under these provisions,

Dhulasaniya relied entirely on her accounts of past persecution. Thus, her

success depended on the degree to which the IJ found those accounts credible.

Indeed, the IJ, as the factfinder, has the "duty to make determinations based on

the credibility of . . . witnesses," Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994), and

this court gives great deference to those determinations, Efe v. Ashcroft, 293 F.3d

899, 905 (5th Cir. 2002). Thus, when an IJ’s credibility determination is based

on “a reasonable interpretation of the record and therefore supported by

substantial evidence,” it will be upheld. Chun, 40 F.3d at 79.

On two separate occasions, Dhulasaniya provided an account of each of the

two aforementioned incidents of persecution: once in her written application for

relief, and again orally before the IJ. In denying Dhulasaniya relief, the IJ and

BIA focused on several major inconsistencies between her written and oral

accounts. For example, with regard to the March 4, 2002 incident, Dhulasaniya,

in her asylum application, stated that her home was set aflame, and that she

was severely beaten and tortured by a group of approximately 100 Hindus. [R.

at 206]. Her application did not mention that local police had either facilitated

or encouraged the attack. By contrast, during oral examination, Dhulasaniya,

when asked whether the mob burned her home, answered "[n]ot ours personally,

[but rather] the houses around us. . . . We were in the midst of Hindu houses so

we only got looted." [R. at 131]. Interestingly, later in her testimony, when

pressed on the contradiction, Dhulasaniya changed her story yet again,

testifying that after her home was looted, it was set aflame. [R. at 161].
No. 06-61118

5

Dhulasaniya also alleged orally that the mob physically attacked her father and

attempted to rape her mother, two significant details absent in her written

application. [R. at 161-62]. Also missing from Dhulasaniya's application was her

allegation, stated orally, that local police were present during the attack and

encouraged the beatings. [R. at 133].

With regard to the second major incident, Dhulasaniya asserted in her

application that she was abducted by Hindus for six days but made no mention

of any physical violence. [R. at 207]. By contrast, Dhulasaniya testified orally

that her abductors attempted to rape her. [R. at 134].

Dhulasaniya presented no corroborating evidence that might lend credence

to her accounts of persecution. Given the great deference this Court owes to

administrative credibility determinations, see Efe, 293 F.3d at 905, we cannot

say that the BIA's affirmance of the IJ's decision rested on an "unreasonable

interpretation of the record," Chun, 40 F.3d at 79.

Dhulasaniya does invoke one relevant provision which exempts an

applicant from having to prove a reasonable possibility of future persecution by

way of credible accounts of past persecution; 8 C.F.R. § 208.13(b)(2)(iii)(A)

provides that:

[i]n evaluating whether the applicant has sustained the burden of

proving that he or she has a well-founded fear of persecution, the

asylum officer or immigration judge shall not require the applicant

to provide evidence that there is a reasonable possibility he or she

would be singled out individually for persecution if . . . [t]he

applicant establishes that there is a pattern or practice in his or her

country . . . of persecution of a group of persons similarly situated to

the applicant on account of . . . religion . . . .

As the text of the provision makes clear, Dhulasaniya's success in invoking

it does not depend on her ability to establish past persecution. Therefore,the IJ's

adverse credibility determination is irrelevant for purposes of the above

paragraph. Dhulasaniya, however, overlooks 8 C.F.R. § 208.13(b)(3)(i), which

provides that "[i]n cases in which the applicant has not established past
No. 06-61118

6

persecution,the applicant shall bear the burden of establishing thatit would not

be reasonable for him or her to relocate, unless the persecution is by a

government or is government-sponsored." 

In her application, Dhulasaniya claimed persecution by the Hindu

majority in a particular geographic region, rather than by the Indian national

government. The IJ concluded that Dhulasaniya failed to establish "that her

entire country is no longer safe, [and] that her problems are not just localized

. . . ." [R. at 68]. We cannot say that such a finding can follow only from an

unreasonable reading of the record. Dhulasaniya testified that she never sought

sanctuary in another region of India. [R. at 144]. Indeed, Dhulasaniya briefly

resided in Mata, another location within her home region; when asked whether

she experienced problems there, she responded "[n]o, not at all." Id. Thus, the

IJ's finding with respect to the feasability of relocation withstands substantial

evidence review. 

Finding no legal or factual error in the BIA's order, we AFFIRM.