United States Court of Appeals

for the Fifth Circuit

No. 19-60903

Summary Calendar

Pablo Sosa Pedro, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A215 916 944

Before Smith, Haynes, and Wilson, Circuit Judges.

Per Curiam:*

Pablo Sosa Pedro, a native and citizen of Cuba, petitions this court for 

review of a decision of the Board of Immigration Appeals (BIA). He 

challenges the adverse credibility determination against him and contends 

that the BIA erred in dismissing his appeal from the denial of asylum, 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 30, 2021

Lyle W. Cayce

Clerk

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withholding of removal, and relief under the Convention Against Torture 

(CAT).

We generally review only the BIA’s decision but will consider the 

underlying decision of the immigration judge (IJ) to the extent the BIA relied 

upon it, as was the case here. See Singh v. Sessions, 880 F.3d 220, 224 (5th 

Cir. 2018). Questions of law are reviewed de novo, and factual findings are 

reviewed for substantial evidence. Avelar-Oliva v. Barr, 954 F.3d 757, 763 

(5th Cir. 2020). To prevail under the substantial evidence standard, a 

petitioner must show “that the evidence is so compelling that no reasonable 

factfinder could reach a contrary conclusion.” Id. (internal quotation marks 

and citation omitted). An adverse credibility determination is conclusive 

“unless, from the totality of the circumstances, it is plain that no reasonable 

fact-finder could make such an adverse credibility ruling.” Id. at 767 (internal 

quotation marks and citation omitted).

Sosa Pedro disputes findings that his testimony was inconsistent with 

other evidence in the record regarding when his problems with the Cuban 

government began; his disclosure of travels outside of Cuba and explanation

of why he did not seek asylum in those places; his account of a September 

2018 incident with police; and whether he believed that he would be harmed 

in Cuba because of his race. On these points, Sosa Pedro’s arguments rely 

on a construction of the evidence that is not compelled by the record.

A reasonable factfinder could interpret Sosa Pedro’s credible fear 

interview (CFI) and court testimony as being inconsistent regarding when his 

problems with the Cuban government started. Although his court testimony 

indicated that his problems began in about 2017 with his opposition to an 

abortion policy, he indicated in his CFI that his problems began when his 

sister left Cuba in 2009. Similarly, a reasonable factfinder could find that his 

decision to return to Cuba to seek a work visa, rather than apply for asylum 

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in Europe, was inconsistent with his testimony that he previously left for 

Europe because he feared for his life. With respect to Sosa Pedro’s

September 2018 incident with police, he testified in court that the beating 

caused him to urinate blood and seek an ultrasound, but he indicated in his

CFI that he merely suffered “minor” injuries in the incident. His testimony 

and CFI responses also conflicted regarding whether he believed he would be 

harmed in Cuba because of his race, and, contrary to his assertion, the record 

does not compel a finding that he was credible in testifying that the question 

asked in the CFI actually was whether he had been persecuted “by” his race. 

Indeed, the IJ found that the CFI was clear, and Sosa Pedro has not pointed 

to anything in the record that would compel a conclusion that there was 

confusion or a problem with communication or that the CFI notes are 

unreliable. See Avelar-Oliva, 954 F.3d at 764–65, 768. Under the totality of 

the circumstances, the inconsistencies relied upon by the IJ and BIA present 

sufficient grounds for a reasonable factfinder to make an adverse credibility 

ruling. See id. at 767–69. This issue lacks merit.

Sosa Pedro’s challenge to the merits of the denial of asylum and 

withholding of removal is also unavailing. He has not shown that he provided 

evidence independent of his noncredible testimony that satisfies his burden 

of proof for those forms of relief. To the contrary, the record supports the 

BIA’s determination that absent credible testimony, Sosa Pedro failed to 

meet his burden of proof. See Avelar-Oliva, 954 F.3d at 772; Zhang v. 

Gonzales, 432 F.3d 339, 345 (5th Cir. 2005). As noted in the IJ’s decision, 

the witness statements submitted by Sosa Pedro “do not corroborate [his] 

claims and in certain circumstances are deeply flawed.” And as the BIA 

noted, the background evidence that Sosa Pedro provided “is of a general 

character[] and does not relate to [him] specifically.” In sum, the BIA’s 

decision adequately conveys its reasons for upholding the denial of asylum 

and withholding of removal and reflects that it considered the issues 

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presented relating to those claims, including Sosa Pedro’s documentary 

evidence. See Deep v. Barr, 967 F.3d 498, 503 (5th Cir. 2020); Ghotra v. 

Whitaker, 912 F.3d 284, 290 (5th Cir. 2019).

A claim under the CAT is analytically separate from asylum and 

withholding of removal, but the BIA also adequately conveyed its reasons for 

upholding the denial of CAT relief. See Efe v. Ashcroft, 293 F.3d 899, 906–08

(5th Cir. 2002). The adverse credibility determination encompassed Sosa 

Pedro’s testimony about being beaten and thus goes directly to whether he 

would be tortured in Cuba. The BIA therefore was permitted to decide his

CAT claim based on the adverse credibility ruling. See id. at 907–08.

Lastly, we lack jurisdiction to consider Sosa Pedro’s argument that his 

due process rights were violated because the IJ did not require the asylum 

officer who conducted the CFI to appear as a witness. See 8 U.S.C. 

§ 1252(d)(1); Roy v. Ashcroft, 389 F.3d 132, 136–37 (5th Cir. 2004). The 

argument is unexhausted and jurisdictionally barred because Sosa Pedro did 

not present it to the BIA. See § 1252(d)(1); Roy, 389 F.3d at 136–37.

Based on the foregoing, the petition for review is DISMISSED IN 

PART for lack of jurisdiction and DENIED IN PART. 

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