IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60576

Summary Calendar

MOHAMMED MUSTAFA RABEE,

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. A055 411 741

Before DeMOSS, STEWART, and ELROD, Circuit Judges.

PER CURIAM:

*

Mohammed Mustafa Rabee applied for asylum, withholding of removal,

and relief under the Convention Against Torture, alleging a fear of persecution

and torture as a Palestinian living in Israel, of which he is a native and citizen.

His application for relief was denied based largely on an adverse credibility

finding by the immigration judge (IJ), which was upheld by the Board of

Immigration Appeals (BIA) when it dismissed Rabee’s appeal.

United States Court of Appeals

Fifth Circuit

F I L E D

April 21, 2011

Lyle W. Cayce

Clerk

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.

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No. 10-60576

Rabee raises only two issues on appeal: 1) whether the BIA erred in

finding that Petitioner’s appeal to the BIA did not meaningfully challenge the

IJ’s negative credibility finding; and 2) whether perceived discrepancies relied

upon by the IJ and BIA were sufficient to support a negative finding on

credibility. Rabee first argues that the BIA erred by willfully refusing to

acknowledge his arguments concerning the IJ’s credibility determination. He

contends that the matter should be remanded because shortcomings in the IJ’s

decision and in the BIA’s opinion preclude judicial review of the credibility

determination. This argument lacks merit. The IJ’s decision and the BIA’s

opinion reflect that meaningful consideration was given to his arguments

concerning credibility. For example, the IJ identified four inconsistencies in

Rabee’s presentation, and also noted that Rabee had failed to provide

corroborating evidence. The BIA specifically found no clear error in the IJ’s

determination that Rabee was not credible. Rabee has therefore failed to show

that the agency’s decision is insufficient to permit judicial review. Cf.

Hernandez-Cordero v. INS, 819 F.2d 558, 563 (5th Cir. 1987).

Rabee also challenges the inconsistencies identified by the IJ, pointing to

record evidence in an attempt to show error. However, in his appeal brief to the

BIA, Rabee only specifically addressed the issue of error in the IJ’s

determination that there was an inconsistency between his statement to an

immigration agent that he did not fear persecution if returned to his home

country and his testimony regarding his fear of persecution. When a petitioner

seeks review of an IJ’s decision and elects to submit a brief to the BIA, “that

brief becomes the operative document through which any issues that a petitioner

wishes to have considered must be raised.” Claudio v. Holder, 601 F.3d 316, 319

(5th Cir. 2010). We are without jurisdiction to consider Rabee’s challenges to the

remaining inconsistencies cited by the IJ because he did not raise them before

the BIA. See Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004).

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The factual findings of an immigration court are reviewed for substantial

evidence. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). “Under this

standard, reversal is improper unless we decide not only that the evidence

supports a contrary conclusion, but also that the evidence compels it.” Zhang v.

Gonzales, 432 F.3d 339, 344 (5th Cir. 2005) (internal marks and citation omitted)

(emphasis in original). Among the findings of fact that we review for substantial

evidence is the conclusion that an alien is not eligible for asylum, withholding

of removal, or relief under the CAT. Id. Also among those factual findings is an

immigration court’s determination that an alien is not credible. Chun v. I.N.S,

40 F.3d 76, 78-79 (5th Cir. 1994).

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 v. Holder, 569 F.3d 531, 538 (5th Cir. 2009) (internal quotation

marks and citation omitted) (emphasis in original); 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).

The adverse credibility finding here is supported by substantial evidence.

As Rabee essentially conceded in his appeal brief to the BIA, there were several

minor variances between the written statement that accompanied his

application for relief and his testimony at the immigration hearing. More

glaringly, Rabee’s testimony regarding his fear of persecution was inconsistent

with his prior statement that he did not fear persecution or torture if returned

to his home country. Rabee’s contention that his prior statement is explained

by his difficulty with the English language and other surrounding circumstances

does not provide a sufficient basis to set aside the agency’s credibility

determination. See id. at 539-40.

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Rabee has not demonstrated that “it is plain that no reasonable fact-finder

could make . . . an adverse credibility ruling.” Id. at 538 (internal quotation

marks and citation omitted). Accordingly, we defer to the findings of the IJ and

the BIA that Rabee’s testimony was not credible.

PETITION DENIED.

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