IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60422

Summary Calendar

TEMESGEN FISHAYE,

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. A201 105 064

Before JOLLY, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Temesgen Fishaye, a native and citizen of Eritrea, applied for asylum, 

withholding of removal, and relief under the Convention Against Torture 

(CAT), based on alleged persecution in retaliation for allowing a prisoner he 

was guarding to escape. His application for relief under CAT was granted; his 

applications for asylum and withholding of removal were denied based on the 

adverse credibility determination of the immigration judge (IJ) and a finding 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

March 11, 2014

Lyle W. Cayce

Clerk

 

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of a lack of corroborative evidence, which was upheld by the Board of 

Immigration Appeals (BIA). The BIA also denied Fishaye’s motion to remand

to consider new evidence.

First, Fishaye argues that the record does not support the IJ’s and BIA’s 

adverse credibility determinations. This court reviews an immigration court’s 

findings of fact for substantial evidence. Wang v. Holder, 569 F.3d 531, 536 

(5th Cir. 2009). This court may not reverse an immigration court’s factual 

findings unless “the evidence was so compelling that no reasonable factfinder 

could conclude against it.” Id. at 537.

Pursuant to the REAL ID Act of 2005, “an 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.” Wang, 569 F.3d at 538 (internal quotation marks and citation 

omitted); see also 8 U.S.C. § 1158(b)(1)(B)(iii). We will “defer therefore 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 

ruling.” Wang, 569 F.3d at 538 (internal quotation marks and citation 

omitted).

Fishaye argues that the IJ did not consider the totality of the 

circumstances in finding that he had made inconsistent statements about his 

past persecution. He attempts to explain the apparent inconsistency between 

his statement in the credible fear interview that he was not harmed and his 

testimony that he was tied up in various positions and beaten by attributing it 

to trouble understanding the translations. He explains that there is a 

difference in the Tigrinya language between punishment and harm, and he 

thought that the translator was asking him whether he had experienced harm 

leading to severe injury. He also argues that the IJ’s finding that he made 

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inconsistent statements regarding his practice of religion is not supported by 

substantial evidence. He explained that when he stated in the credible fear 

interview that he did not practice any religion, he meant that although he 

believed in the religion, he could not practice it, i.e., go to church, in Eritrea 

because it was banned.

The BIA and the IJ considered and rejected Fishaye’s explanations. 

Nothing in the record compels belief in his explanation. In light of the 

inconsistencies found by the IJ and the BIA, it is not “plain that no reasonable 

fact-finder could make such an adverse credibility ruling.” See Wang, 569 F.3d 

at 539 (upholding the IJ’s adverse credibility finding because nothing in the 

record compelled belief in the applicant’s story, including alleged problems 

with Chinese interpreter). 

The Government argues that Fishaye has waived appeal of the denial of 

his applications for relief on the independently dispositive finding that he did 

not provide reasonably available corroborative evidence. Fishaye argues that 

the court may review the IJ’s findings related to corroborative evidence 

because the issue has been raised in the response brief. The Government 

addressed the corroborative evidence issue in its response brief. To the extent 

that Fishaye’s argument can be construed as a response to the Government’s 

brief, this court may consider the issue. See United States v. Ramirez, 557 F.3d 

200 (5th Cir. 2009).

Fishaye argues that the IJ’s corroboration finding is not supported by 

substantial evidence because the IJ required evidence that he did not possess 

and was not reasonably able to obtain. He notes that the IJ found that he did 

not present reasonably available evidence that would corroborate his claims of 

persecution in Eritrea, including documentation of his brother’s asylum claim 

and evidence to corroborate his contemporaneous religious beliefs and 

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practices. He argues that corroborative evidence of his religion was not 

reasonably available because Protestant sects of Christianity are forcibly 

suppressed in Eritrea by the government and that he had no church which 

could produce a document demonstrating his membership. He asserts that any 

attestation to such religious affiliation from someone in Eritrea would pose a 

danger of arrest for the person so attesting.

In order to carry his burden of proof, a petitioner must sometimes 

present reasonably available corroborative evidence of his claims, and the 

failure to do so may be dispositive of the petitioner’s application for relief 

without regard to the credibility of his testimony. Rui Yang v. Holder, 664 F.3d 

580, 585-87 (5th Cir. 2011). In reviewing challenges to determinations 

regarding the availability of corroborating evidence, this court considers 

whether the IJ was “compelled to conclude that such corroborating evidence is 

unavailable.” Id. at 587 (quoting 8 U.S.C. § 1252(b)(4)).

Fishaye’s argument fails to explain why he could not have obtained a 

letter from his brother in Sweden to corroborate his assertion that he was a 

believer in the Pentecostal faith in Eritrea. His brother was not in any danger 

from producing such a letter as are his relatives still in Eritrea. Also, with his 

motion to remand, Fishaye produced letters from several people who professed 

to know that Fishaye’s family practiced the Christian faith in Eritrea. He does 

not explain why he could not have produced these letters at his original 

hearing. Fishaye has not shown that the IJ was compelled to conclude that 

corroborating evidence was unavailable. Yang, 664 F.3d at 587.

Next, Fishaye argues that the BIA abused its discretion in denying his 

motion to remand because the evidence was material and could not have been 

presented at his hearing. A motion to remand for the consideration of new evidence 

is considered to be the same in substance as a motion to reopen a removal proceeding. 

Wang v. Ashcroft, 260 F.3d 448, 451-52 (5th Cir. 2001). “A motion to reopen 

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proceedings shall not be granted unless it appears to the Board that evidence 

sought to be offered is material and was not available and could not have been 

discovered or presented at the former hearing . . . .” 8 C.F.R. § 1003.2(c)(1); see 

also Matter of Ige, 20 I & N Dec. 880, 883 (BIA 1994).

Regarding his Eritrean identification card, Fishaye contends that it was 

material to the IJ’s credibility determination and that the translation was not 

readily available on the date of the hearing, or at least by the deadline to 

submit evidence for the hearing. Fishaye fails to address the fact that his 

identification card was excluded for lack of a proper translation and not 

because he failed to provide the document to the Department of Homeland 

Security 14 days before the hearing. The document was available and was 

presented at the hearing, but it was not accompanied by a properly signed 

translator’s certificate.

Fishaye also argues that his brother’s Swedish identification card was 

material and was not available on the date of the hearing. The BIA noted that 

there was no translation provided for the brother’s identification card in 

exhibit B of the motion to remand. Fishaye does not address the lack of 

translation, nor does he explain why his brother could not have sent him a copy 

of the identification card in time for his hearing.

Regarding the letters provided in exhibit E of his motion to remand, 

Fishaye argues that they are material evidence that would likely have changed 

the outcome of the case. His argument addresses the materiality requirement, 

but he does not make any argument concerning whether this evidence was 

unavailable or could not have been discovered or presented at his hearing. See

8 C.F.R. § 1003.2(c)(1); see also Ige, 20 I & N Dec. at 883.

PETITION DENIED.

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