Kibrom Beraki v. Jefferson Sessions, III

Case: 17-60040 Document: 00514350157 Page: 1 Date Filed: 02/16/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 17-60040 Summary Calendar United States Court of Appeals Fifth Circuit FILED February 16, 2018 KIBROM BERAKI, Lyle W. Cayce Clerk Petitioner v. JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A088 789 732 Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges. PER CURIAM: * Kibrom Beraki, a native and citizen of Eritrea, applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). He asserted that, if he returned to Eritrea, he would be subject to persecution on account of his religion, his political opinion, and his desertion of the military. The immigration judge (IJ) denied relief, and the BIA dismissed Beraki’s appeal. Beraki petitioned this court to review the BIA’s * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 17-60040 Document: 00514350157 Page: 2 Date Filed: 02/16/2018 No. 17-60040 order, but the matter was remanded to the agency, on the respondent’s motion, to address the omission of a transcript from the administrative record. On remand, the IJ determined that the administrative record was complete and accurate. The BIA dismissed Beraki’s appeal, addressing both the IJ’s decision regarding the administrative record as well as the IJ’s denial of asylum, withholding of removal, and relief under the CAT. Beraki now petitions for review of the BIA’s decision. Administrative record Beraki argues that the agency’s finding that the administrative record is complete and accurate is not supported by substantial evidence. He seeks a remand to the agency, contending that deficiencies in the administrative record violate his right to due process. We have authority to review only the BIA’s decision, but we “may consider the IJ’s decision to the extent that it influenced the BIA.” Cabral v. Holder, 632 F.3d 886, 889 (5th Cir. 2011). The factual findings of the BIA and the IJ are reviewed for substantial evidence, while questions of law are reviewed de novo. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). The substantial evidence test requires that the decision be based on the evidence presented and that the decision be substantially reasonable. Carbajal- Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996). “The [petitioner] has the burden of showing that the evidence is so compelling that no reasonable factfinder could reach a contrary conclusion.” Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). Beraki asserts that the administrative record is incomplete because it does not include a transcript of a hearing held on March 5, 2009. The record, however, provides substantial support for the agency’s determination that, although a hearing was scheduled, no hearing was actually held on the date in 2 Case: 17-60040 Document: 00514350157 Page: 3 Date Filed: 02/16/2018 No. ...

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