IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60443

Summary Calendar

SONIA GUADALUPE RIVAS DE ORTEGA; JUAN FRANCISCO ORTEGAHERRERA; ELIDA GUADALUPE ORTEGA-RIVAS; JUAN FRANCISCO 

ORTEGA-RIVAS; JERSON RODRIGO ORTEGA-RIVAS, 

 Petitioners

v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL, 

 Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA Nos. A202 003 087

A202 003 088

A202 003 089

A202 003 090

A206 187 582

Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.

United States Court of Appeals

Fifth Circuit

FILED

August 31, 2018

Lyle W. Cayce

Clerk

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PER CURIAM:*

Sonia Guadalupe Rivas De Ortega, Juan Francisco Ortega-Herrera, and 

their three children Elida Guadalupe Ortega-Rivas, Juan Francisco OrtegaRivas, and Jerson Rodgrigo Ortega-Rivas, are natives and citizens of El 

Salvador.1 They petition for review of the decision by the Board of Immigration 

Appeals (BIA) affirming the denial by the Immigration Judge (IJ) of their 

applications for asylum, withholding of removal, and protection under the 

Convention Against Torture. The crux of their petition is that when OrtegaHerrera served as a member of El Salvador’s Civil National Police, corrupt 

police officers began threatening him and his family when he failed to comply 

with their orders to tamper with an investigation, and they fear for their safety 

if they return to El Salvador.

While we generally have authority to review only the BIA’s decision, we 

may review the IJ’s decision if the BIA adopts it.2 Because the BIA adopted 

and elaborated upon the IJ’s decision, we consider both. The IJ determined 

that the petitioners were not entitled to relief because their accounts were not 

credible, and that regardless, they had failed to sustain their burdens of proof 

on their claims.

An immigration court’s findings of fact are reviewed for substantial 

evidence.3 This includes determinations that an alien is not eligible for asylum, 

 

* 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.

1 Rivas De Ortega’s application for asylum in December 2014 listed Ortega-Herrera 

and the three children as derivative beneficiaries. Ortega-Herrera and the children 

subsequently filed individual applications for withholding of removal and protection under 

the convention Against Torture. All of the petitioners raise virtually identical claims.

2 Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009).

3 Id. at 536.

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withholding of removal, or relief under the Convention Against Torture.4

Under the substantial evidence standard, we may only reverse those findings 

if “the evidence was so compelling that no reasonable factfinder could conclude 

against it.”5

The petitioners challenge the IJ’s adverse credibility determination on a 

number of grounds. We do not have jurisdiction to consider several of these 

grounds because they were not exhausted before the BIA.6 In their briefing to 

the BIA, the petitioners noted that while the form I-213 had referenced a sworn 

statement made by Ortega-Herrera, the IJ had been unable to locate it in 

evidence; they argued that this conflicted with the IJ’s subsequent reference to 

the sworn statement. Petitioners did not, however, raise their present 

argument that the absence of the Record of Sworn Statement rendered the 

form I-213 unreliable. Similarly, they did not raise the IJ’s alleged failures to 

give them a chance to explain inconsistencies in their testimony or to consider 

certain threatening phone calls. We may not review these issues before the 

petitioners have exhausted them with the BIA.

As for the petitioners’ other critiques of the IJ’s adverse credibility 

determination, the IJ may “rely on any inconsistency or omission in making an 

adverse credibility determination as long as the totality of the circumstances 

establishes that an asylum applicant is not credible.”7 We will “defer . . . to an 

IJ’s credibility determination unless, from the totality of the circumstances, it 

is plain that no reasonable fact-finder could make such an adverse credibility 

 

4 Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).

5 Wang, 569 F.3d at 537.

6 See 8 U.S.C. § 1252(d)(1); Omari v. Holder, 562 F.3d 314, 318–19 (5th Cir. 2009).

7 Wang, 569 F.3d at 538 (quoting Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008), 

with approval) (internal quotation marks omitted). 

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ruling.”8 Throughout this review, we remain mindful of the IJ’s unique ability 

to assess credibility by observing the demeanor of the petitioners in relation to 

any inconsistencies.9

The IJ concluded that the petitioners’ account of Ortega-Herrera’s 

experience was not credible because from when Ortega-Herrera first entered 

the United States and explained his circumstances to multiple immigration 

officers to when he testified before the immigration court, his account escalated 

in terms of the fear and violence he claimed he had experienced.10 The IJ 

additionally questioned Ortega-Herrera’s account that he was threatened 

months after he had already failed to comply with the corrupt officers’ orders, 

Rivas De Ortega’s vague descriptions of the black truck that allegedly placed 

them in fear, Rivas De Ortega’s willingness to go to the police statement to 

obtain documents to support Ortega-Herrera despite her alleged fear of the 

police, and the fact that those documents referenced gang threats, rather than 

police corruption, as a basis for Ortega-Herrera to be in danger.11 Under the 

circumstances, the totality of the evidence in the petitioners’ favor is not so 

compelling that no reasonable factfinder could fail to find their account 

 

8 Id. (quoting Lin, 534 F.3d at 167). 

9 See 8 U.S.C. § 1158(b)(1)(B)(iii); Wang, 569 F.3d at 539–40. 

10 Petitioners rely heavily on Singh v. Gonzalez, 403 F.3d 1081 (9th Cir. 2005), a Ninth 

Circuit case concerning the reliability of asylum officer notes. As we have previously 

recognized, Singh was not governed by the REAL ID Act of 2005, which gave IJs more 

discretion in credibility determinations. See Nyemb v. Holder, 404 F. App’x 926, 927 n.2 (5th 

Cir. 2010) (per curiam); see also 8 U.S.C. § 1158(b)(B)(iii) (setting forth permissible credibility 

determinations). 

11 The IJ specifically noted the fact that while Ortega-Herrera and Rivas De Ortega 

claimed that Ortega-Herrera had told no one about the alleged threats besides Rivas De 

Ortega and the police chaplain, the letter from the police chaplain discussed gang threats, 

but made no reference to police corruption. 

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credible.12 In light of these adverse credibility determinations, we cannot 

conclude that the BIA erred in affirming the IJ’s denial of their applications.13

The petitioners further argue that even if the adverse credibility 

determinations supported the IJ’s denial of their asylum and withholding of 

removal claims, the BIA erred in failing to independently analyze their claim 

for protection under the Convention Against Torture.14 The BIA’s discussion of 

petitioners’ Convention Against Torture claim was admittedly brief, and would 

likely not suffice if that were all we were entitled to review.15 The BIA 

incorporated the IJ’s findings, however, which included a separate analysis of 

the Convention Against Torture claim emphasizing the adverse credibility 

determination and the fact that “Respondents have never been tortured in the 

past, nor does the evidence suggest that they are at any particular risk of harm 

in the future.” Given the evidence and adverse credibility determination, which 

bore not just upon the validity of the petitioners’ claims for asylum and 

withholding of removal but also on the veracity of their overall account, the 

BIA could reasonably conclude that the petitioners had not shown that it was 

more likely than not that they would be tortured upon their return, or that 

 

12 See Wang, 569 F.3d at 538. 

13 See Dayo v. Holder, 687 F.3d 653, 657–59 (5th Cir. 2012); Chun v. I.N.S., 40 F.3d 

76, 79 (5th Cir. 1994) (per curiam). 

14 The respondent argues that the petitioners failed to exhaust their Convention 

Against Torture claim because they failed to raise it in their brief before the BIA. This would 

ordinarily be the case, but it is appropriate for us to “address an issue on the merits when 

the BIA has done so, even if the issue was not properly presented to the BIA itself.” LopezDubon v. Holder, 609 F.3d 642, 644 (5th Cir. 2010). Because the BIA considered the 

Convention Against Torture claim and effectively applied the same approach as the IJ, we 

have jurisdiction to consider whether the BIA properly disposed of the issue. 

15 See Cabrera v. Sessions, 890 F.3d 153, 162 (5th Cir. 2018) (“We do not require the 

BIA to specifically address every piece of evidence before it, but it is error for the agency to 

fail to address key evidence.” (internal quotation marks and alterations omitted)).

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such torture would occur by or with the acquiescence of El Salvador’s

government.16

The petition for review is DISMISSED IN PART for lack of jurisdiction 

and DENIED IN PART.

 

16 See Garcia v. Holder, 756 F.3d 885, 891 (5th Cir. 2014) (laying out the requirements 

for protection under the Convention Against Torture). 

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