* 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. 06-61140

Summary Calendar

MURTAZA AFSAR KHAN

Petitioner

v.

MICHAEL B MUKASEY, U.S. ATTORNEY GENERAL

Respondent

Petition for Review of an Order 

of the Board of Immigration Appeals 

BIA No. A79 104 422

Before GARWOOD, WIENER and BARKSDALE, Circuit Judges.

PER CURIAM:*

Murtaza Afsar Khan petitions for review of the order of the Board of

Immigration Appeals (BIA) affirming the decision ofthe Immigration Judge (IJ)

that denied his application for asylum, withholding of removal, and relief under

the Convention Against Torture (CAT).

Khan first argues that the BIA erred in affirming the decision of the IJ

that his asylum application was time-barred. Although Khan acknowledges his

United States Court of Appeals

Fifth Circuit

F I L E D

November 13, 2007

Charles R. Fulbruge III

Clerk
No. 06-61140

2

application was not filed within one year of his arrival, he argues that his thenpending application for adjustment of status constituted an “extraordinary

circumstance” that excused the one-year filing limit. See 8 U.S.C. §

1158(a)(2)(D). Although an alien with lawful status is one example of such an

extraordinary circumstance, a pending application for adjustment of status does

not change an alien’s illegal status to a legal status. See 8 C.F.R. §

1208.4(a)(5)(iv); United States v. Elrawy, 448 F.3d 309, 314 (5th Cir. 2006).

Therefore, the BIA correctly concluded that Khan had not shown extraordinary

circumstances and that his asylum application was time-barred.

Khan also argues that the BIA erred in affirming the decision of the IJ on

the issue of credibility. This court gives great deference to a factfinder’s

decisions concerning an alien’s credibility. Efe v. Ashcroft, 293 F.3d 899, 905

(5th Cir. 2002). This court does not substitute its own judgment for that of the

BIA or IJ with respect to “witness credibility or ultimate factual findings based

on credibility determinations.” Id. When an IJ’s credibility determination is

based on a “reasonable interpretation of the record and [is] therefore supported

by substantial evidence,” it will be upheld. Chun v. INS, 40 F.3d 76, 79 (5th Cir.

1994). The IJ’s credibility determination may not be overturned unless the

record compels it. Id. The BIA did not err in affirming the IJ’s adverse

credibility determination. The inconsistencies in Khan’s documentary evidence

and testimony show that the credibility determination was a reasonable

interpretation of the record and, was therefore, supported by substantial

evidence. See id. The opposite conclusion, that Khan was credible, is not

compelled by the evidence. See id. Accordingly, the BIA did not err in denying

Khan withholding of removal or relief under the CAT. See id.

Khan also argues that the BIA and IJ erred in denying him voluntary

departure. This court lacks jurisdiction to review a claim that the BIA erred in
No. 06-61140

3

denying a request for the discretionary relief of voluntary departure. 8 U.S.C.

§ 1252(a)(2)(B); Eyoum v. INS, 125 F.3d 889, 891 (5th Cir. 1997).

PETITION DENIED.