* 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this opinion should not be published and is not precedent except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

October 29, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-61044

Summary Calendar

 

FAISAL MOHAMMAD ALI,

Petitioner,

versus

JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

Respondent.

--------------------

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A77 977 248

--------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Petitioner Faisal Mohammad Ali, a native and citizen of

Pakistan, has petitioned for review of an order of the Board of

Immigration Appeals (“BIA”) affirming without opinion the

immigration judge’s (“IJ”) decision denying Ali’s application for

(1) asylum, (2) withholding of deportation, and (3) relief under

the Convention Against Torture (“CAT”). 

“Although this Court generally reviews decisions of the BIA,

not immigration judges, it may review an immigration judge’s
2

decision when, as here, the BIA affirms without additional

explanation.” Moin v. Ashcroft, 335 F.3d 415, 417 (5th Cir. 2003).

“[T]his Court must affirm the decision if there is no error of law

and if reasonable, substantial, and probative evidence on the

record, considered as a whole, supports the decision’s factual

findings.” Id. Under this standard, “the alien must show that the

evidence is so compelling that no reasonable factfinder could

conclude against it.” Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994).

This court “cannot substitute [its] judgment for that of the BIA or

IJ with respect to the credibility of the witnesses or ultimate

factual findings based on credibility determinations.” Chun, 40

F.3d at 78. “[G]reat deference” is given to “an immigration

judge’s decisions concerning an alien’s credibility.” Efe v.

Ashcroft, 293 F.3d 899, 904 (5th Cir. 2002). 

The Attorney General, in his discretion, is authorized to

grant asylum to aliens who qualify as refugees. 8 U.S.C.

§ 1158(b)(1). An alien is a refugee when he is outside his country

and “is unable or unwilling to return to, and is unable or

unwilling to avail himself or herself of the protection of, that

country because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership

in a particular social group, or political opinion.” 8 U.S.C.

§ 1101(a)(42)(A). The alien must prove some nexus between the

persecution and one of the five enumerated grounds. INS v. EliasZacarias, 502 U.S. 478, 482 (1992). 
3

Ali contends that he is eligible for asylum because he is a

victim of past persecution and has a well-founded fear of

persecution in Pakistan because of his membership in a particular

social group. The IJ declined to exercise his discretion to grant

asylum because he found that Ali’s testimony was not credible and

because the testimony was not corroborated by other evidence. The

IJ’s credibility determination was based on discrepancies between

Ali’s written application and credible-fear interview and his

testimony at the asylum hearing. The IJ gave cogent reasons for

finding that Ali was not credible, and his determination that Ali

was not credible is amply supported by the record. See Moin, 335

F.3d at 417. As the IJ’s credibility determination is supported by

substantial evidence, we do not address the IJ’s alternative

holding that Ali’s testimony, if believed, did not demonstrate

eligibility for asylum. 

To be eligible for withholding of deportation, an alien must

demonstrate a “clear probability” of persecution on return, a

standard more stringent than that needed to establish eligibility

for asylum. Mikhael v. INS, 115 F.3d 299, 306 (5th Cir. 1997). As

Ali did not present credible evidence sufficient to establish his

eligibility for asylum, no reversible error is presented with

respect to the IJ’s denial of withholding of deportation. 

 A claim under the CAT is a separate claim from withholding of

deportation and should receive separate analytical attention. Efe,

293 F.3d at 906-07. The CAT requires an alien to show “that it is
4

more likely than not that he or she would be tortured if removed to

the proposed country of removal. The testimony of the applicant,

if credible, may be sufficient to sustain the burden of proof

without corroboration.” 8 C.F.R. § 208.16(c)(2). The torture need

not be inflicted because of race, religion, nationality, membership

in a particular social group, or political opinion. Efe, 293 F.3d

at 907. “Torture is defined as any act by which severe pain or

suffering, whether physical or mental, is intentionally inflicted

on a person...by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an

official capacity.” 8 C.F.R. § 208.18(a)(1). “Torture is an

extreme form of cruel and inhuman treatment and does not include

lesser forms of cruel, inhuman or degrading treatment or punishment

that do not amount to torture.” 8 C.F.R. § 208.18(a)(2). The

petitioner has the burden of proving “that it is more likely than

not that he or she would be tortured if removed to the proposed

country of removal. The testimony of the applicant, if credible,

may be sufficient to sustain the burden of proof without

corroboration.” 8 C.F.R. § 208.16(c)(2). 

Ali testified that he had been arrested and detained several

times by Pakistani authorities and that he had been beaten during

those detentions. The IJ found that Ali had not shown that the

physical mistreatment during those arrests was so severe that Ali

was entitled to withholding of removal under the CAT. As Ali’s

testimony was not considered to be credible, there was no credible
5

evidence showing that Ali was likely to be tortured on his return

to Pakistan. Id. The record does not compel a contrary

conclusion. See Chun, 40 F.3d at 78. The petition for review of

the BIA’s order is 

DENIED.