Lakhani, et al v. Ashcroft

* 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that this opinion should not be published and is not precedent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
F I L E D
July 8, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-60850
Summary Calendar
SOLEMAN LAKHANI; NAJMA SOLEMAN LAKHANI,
Petitioners,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A93-086-770
BIA No. A77-404-396
--------------------
Before WIENER, DeMOSS, and PICKERING, Circuit Judges.
PER CURIAM:*
Soleman Lakhani and his wife, Najma Soleman Lakhani, both
citizens of India, appeal from the Board of Immigration Appeals’
(BIA) denial of their applications for asylum, withholding of
removal, withholding of removal under the Convention Against
Torture (CAT), cancellation of removal, and voluntary departure.
The Lakhanis also appeal from the BIA’s denial of their motion to
remand their applications for cancellation of removal. Because
the BIA adopted the decision of the immigration judge (IJ), this

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court has jurisdiction to review the IJ’s decision. See Efe v.
Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002).
Waiver of timeliness of asylum applications and eligibility for
cancellation of removal and voluntary departure
The BIA confirmed the IJ’s determination that the Lakhanis’
asylum applications were untimely filed and that they failed
to qualify for any exception to the limitations period.
See 8 C.F.R. § 208.4(a)(2); 8 U.S.C. § 1158(a)(2)(B), (D).
The Lakhanis have failed to brief the merits of this
determination, therefore they have waived the issue on appeal.
See Rodriguez v. INS, 9 F.3d 408, 414 n.15 (5th Cir. 1993);
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Likewise, the Lakhanis have failed to brief the merits of
the IJ’s denial of their applications for cancellation of removal
and voluntary departure. The BIA affirmed the IJ’s determination
that the Lakhanis were ineligible for cancellation of removal
because their asylum and withholding of removal applications
were frivolous, Soleman had a prior conviction for felony credit
card abuse, and Najma had failed to demonstrate an exceptional
hardship on her children in the event of her removal. The BIA
further affirmed the IJ’s determination that the Lakhanis failed
to establish by clear and convincing evidence their intention to
depart the United States. The Lakhanis have waived these issues
on appeal. See Rodriguez, 9 F.3d at 414 n.15; Yohey, 985 F.2d
at 224-25.

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Withholding of removal
The Lakhanis argue that the BIA erred in relying upon the
IJ’s determination that their asylum and withholding of removal
applications were frivolous. They further contend that the IJ
failed to afford them an opportunity to explain their submission
of a fraudulent newspaper article in support of their
applications.
The IJ’s conclusion that the Lakhanis are not eligible
for withholding of removal is a factual determination that
is reviewed under the substantial evidence standard. See Efe,
293 F.3d at 906. Under that standard, this court may not reverse
a factual determination unless it finds that the evidence compels
a contrary conclusion. See Chun v. INS, 40 F.3d 76, 78 (5th Cir.
1994). With respect to credibility determinations, “[i]t is the
factfinder’s duty to make determinations based on the credibility
of witnesses.” Id. This court cannot substitute its judgment
for that of the BIA or IJ with respect to witness credibility or
ultimate factual findings based on credibility assessments. Id.
“An asylum application is frivolous if any of its material
elements is deliberately fabricated.” 8 C.F.R. § 208.20.
The IJ’s denial of the Lakhanis’ applications for
withholding of removal, based in part on a lack of credibility
and in part on inconsistent documentation, is supported by
substantial evidence. See Efe, 293 F.3d at 906. Soleman’s
testimony regarding the nature of his entry into the United

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States, the use of aliases, the filing of tax returns, former
addresses, number of family members, and former accounts of
physical and sexual abuse in India are markedly inconsistent
with the responses given on his application for withholding of
removal. Similarly, the Lakhanis do not dispute that Najma gave
testimony regarding her entry into the United States that was
inconsistent with her written application for withholding of
removal. Finally, the Lakhanis conceded that they submitted
a false newspaper article in support of their assertion that
Najma’s brother intended to kill them upon their return to
India. In contrast to their assertions, the record reflects
that the IJ gave the Lakhanis ample opportunity to explain these
discrepancies. Based upon the inconsistent testimony given by
the Lakhanis, coupled with the fraudulent documentation, the
IJ’s dismissal of their withholding of removal applications as
frivolous is supported by substantial evidence. See Efe, 293,
F.3d at 908.
CAT claim
The Lakhanis argue that the BIA erred in failing to grant
them relief under the CAT. The Lakhanis contend that the IJ
erroneously determined that they were not credible witnesses
based on only a few inconsistencies between their written asylum
applications and their testimony.
Withholding of removal under the Convention is provided for
in 8 C.F.R. § 208.16(c). The CAT provides that “[n]o State Party

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shall expel, return . . . or extradite a person to another State
where there are substantial grounds for believing that he would
be in danger of being subjected to torture.” Efe, 293 F.3d at
907 (citation omitted). Torture is the intentional infliction of
severe mental or physical pain, by a governmental official, on a
victim for the purpose of obtaining information, intimidation,
punishment, or discrimination. See 8 C.F.R. § 208.18(a)(1).
The record does not reflect that it is more likely than not
that the Lakhanis would be tortured if they were returned to
India. The Lakhanis have abandoned their arguments of religious
persecution in their brief and, in any event, their account of
their inability to practice their religion is inconsistent with
their testimony. Similarly, the Lakhanis’ fear of threats from
Najma’s brother fails to meet the definition of torture under the
CAT. See 8 C.F.R. § 208.18(a)(1). Accordingly, denial of the
Lakanis’ CAT claim was proper.
Motion to remand
The Lakhanis argue that the BIA erred in denying their
motion to remand their applications for cancellation of removal.
They assert that the decision to deny their applications for
cancellation of removal was not considered on the merits but
solely on the basis of the IJ’s erroneous determination that
their asylum applications were frivolous.
The BIA applies the same standards to a motion to remand
as it does to a motion to reopen, and this court reviews both

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motions for abuse of discretion. Ogbemudia v. INS, 988 F.2d 595,
600 (5th Cir. 1993); see INS v. Doherty, 502 U.S. 314, 322-23
(1992). The BIA’s decision to reopen a deportation proceeding is
discretionary; however, the BIA lacks the authority to reopen
deportation proceedings unless the alien alleges new, material
facts supported by affidavits or other evidence which establish
a prima facie case that the alien is eligible for the relief
sought. Bahramnia v. INS, 782 F.2d 1243, 1245 (5th Cir. 1986).
The Lakhanis are mistaken that the IJ rejected their
application for cancellation of removal solely on the ground that
they had filed frivolous asylum applications. In its denial of
their request for cancellation of removal, the IJ also referenced
their ineligibility for such relief due to Soleman’s prior felony
credit card conviction and Najma’s failure to establish hardship
upon her children. Further, the Lakhanis fail to identify with any
specificity the new evidence in support of their motion to remand
or to supply supporting affidavits explaining how the evidence is
material to their cancellation of removal claim. See Bahramnia,
782 F.2d at 1245. The BIA did not abuse its discretion in
denying the Lakanis’ motion to reopen. See Ogbemudia, 988 F.2d
at 600. For the foregoing reasons, the Lakanis’ consolidated
petition for review is DENIED.

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