Fifth Circuit: Minor Inconsistencies, Demeanor, and Plausibility Sustain Adverse Credibility; No IJ Duty to Re-Raise Noticed Inconsistencies; CAT Requires Particularized, Independent Proof Beyond General Country Conditions

1. Introduction

Artur Torosyan, a native of Russia and citizen of Armenia, sought review of a Board of Immigration Appeals (“BIA”) decision affirming an Immigration Judge’s (“I.J.”) denial of asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Torosyan alleged Armenian government persecution based on political opinion, claiming he was beaten at a protest, later detained and threatened, and then raided by masked officers before fleeing with his family.

The central issues were (1) whether the I.J. and BIA permissibly made an adverse-credibility finding based on demeanor, inconsistencies, omissions, and plausibility concerns; (2) whether the I.J. had to personally provide additional opportunities to explain inconsistencies already raised by DHS; and (3) whether Torosyan’s independent evidence compelled CAT relief despite the adverse-credibility determination.

2. Summary of the Opinion

The Fifth Circuit denied the petition. It held that substantial evidence supported the adverse-credibility determination, which was dispositive of asylum and withholding of removal. For CAT, the court held that once testimony is discredited, the applicant must rely on independent evidence; generalized country-conditions evidence of unrest did not compel the conclusion that Torosyan himself was more likely than not to be tortured.

3. Analysis

A. Precedents Cited

• Arulnanthy v. Garland, 17 F.4th 586 (5th Cir. 2021): Used for two key propositions: (1) asylum fails where adverse credibility is supported; and (2) CAT must be evaluated separately, but when testimony is not credible the applicant must establish CAT eligibility through independent evidence.
• Dayo v. Holder, 687 F.3d 653 (5th Cir. 2012): Cited for the rule that adverse credibility is dispositive of withholding of removal as well.
• Rangel v. Garland, 100 F.4th 599 (5th Cir. 2024) and Munoz-Granados v. Barr, 958 F.3d 402 (5th Cir. 2020): Provide the legal standards for asylum (“refugee,” past persecution/well-founded fear) and withholding (“clear probability”).
• Ghotra v. Whitaker, 912 F.3d 284 (5th Cir. 2019): Reinforces that non-credible testimony generally cannot satisfy the burden of proof; also invoked to note corroboration that itself contains inconsistencies can fail to rehabilitate credibility.
• Wang v. Holder, 569 F.3d 531 (5th Cir. 2009): Central to the court’s approach: (1) I.J.s may rely on any inconsistency or omission, even if it does not go to the “heart” of the claim; (2) demeanor findings receive substantial deference on appeal.
• Singh v. Garland, 20 F.4th 1049 (5th Cir. 2021) and Nkenglefac v. Garland, 34 F.4th 422 (5th Cir. 2022): Singh supports that even minor inconsistencies can support adverse credibility; Nkenglefac limits credibility findings to inconsistencies grounded in the record.
• Shaikh v. Holder, 588 F.3d 861 (5th Cir. 2009) and Singh v. Sessions, 880 F.3d 220 (5th Cir. 2018): Define the review posture: review BIA decision, but where BIA adopts I.J. reasoning, the court may review both.
• Avelar-Oliva v. Barr, 954 F.3d 757 (5th Cir. 2020) and Santos-Alvarado v. Barr, 967 F.3d 428 (5th Cir. 2020): Avelar-Oliva: de novo legal review and deference principles; Santos-Alvarado: substantial-evidence standard and that CAT requires “separate analytical attention.”
• Hong Fei Gao v. Sessions, 891 F.3d 67 (2d Cir. 2018) and Iman v. Barr, 972 F.3d 1058 (9th Cir. 2020): The panel notes some circuits disfavor reliance on trivial inconsistencies/omissions that do not suggest fabrication; the Fifth Circuit expressly states it “ha[s] not so held,” and proceeds under its broader Wang/Singh framework.
• Morales v. Sessions, 860 F.3d 812 (5th Cir. 2017): Even if an explanation for inconsistencies is plausible, the agency is not required to accept it.
• Mpesse v. Garland, No. 20-61207, 2021 WL 4256177 (5th Cir. 2021) (unpublished) (quoting Matter of Y-I-M-, 27 I. & N. Dec. 724 (BIA 2019)): Supports that no additional I.J.-initiated notice is required where the applicant is aware of the inconsistency and had an opportunity to explain; cross-examination can provide that opportunity.
• Morales-Morales v. Barr, 933 F.3d 456 (5th Cir. 2019): Where two permissible views of the evidence exist, the I.J.’s choice between them is not clearly erroneous—used here to justify selecting an interpretation of the honeymoon/Instagram timeline adverse to the applicant.
• Cardona-Franco v. Garland, 35 F.4th 359 (5th Cir. 2022): Credibility determinations may be upheld even if some subsidiary findings are questionable, so long as substantial evidence supports the result.
• Rubio v. Bondi, 147 F.4th 568 (5th Cir. 2025): Used to link the asylum and withholding standards in outcome terms: failing asylum often implies failure on withholding’s higher bar.
• L.N. v. Garland, 109 F.4th 389 (5th Cir. 2024): States the CAT burden: “more likely than not” torture by or with government acquiescence.
• Qorane v. Barr, 919 F.3d 904 (5th Cir. 2019): Generalized country conditions say little about the risk that state actors will torture a particular person.
• Ndifon v. Garland, 49 F.4th 986 (5th Cir. 2022) and Melendez-Monge v. Garland, No. 20-60814, 2022 WL 1532641 (5th Cir. 2022) (unpublished): Address adequate consideration of country-conditions evidence; adoption of an I.J.’s reasoned discussion can suffice.
• Suate-Orellana v. Barr, 979 F.3d 1056 (5th Cir. 2020): A petitioner’s disagreement with how the I.J. weighed evidence is generally not a basis for reversal under substantial-evidence review.

B. Legal Reasoning

1) Adverse credibility (asylum/withholding): Applying 8 U.S.C. § 1158(b)(1)(B)(iii), the court accepted the agency’s reliance on demeanor (“overly defensive”), “inherent plausibility,” and record inconsistencies/omissions. It emphasized Fifth Circuit doctrine that the agency “may rely on any inconsistency or omission,” including minor ones, and need not limit itself to matters going to the “heart” of the claim (Wang v. Holder; Singh v. Garland).

2) Opportunity to explain: The panel rejected the argument that the I.J. had to personally flag and elicit explanations for the medical-record discrepancy and social-media timeline. It held that DHS cross-examination sufficed to provide notice and an opportunity to explain, relying on Mpesse v. Garland (quoting Matter of Y-I-M-).

3) Rejection of explanations: Even assuming explanations were plausible (translation error; delayed posting; conflicting recollections), the court reiterated that the I.J./BIA are not required to accept them (Morales v. Sessions), and may choose among permissible interpretations (Morales-Morales v. Barr).

4) CAT analysis remains separate but cannot rest on discredited testimony: Consistent with Santos-Alvarado v. Barr and Arulnanthy v. Garland, CAT required separate consideration. Yet, because the testimony was discredited, Torosyan needed independent evidence establishing that he was more likely than not to be tortured (8 C.F.R. § 1208.16(c)(3)). The court held that generalized evidence of unrest and protests did not compel a finding of individualized risk (Qorane v. Barr), and it accepted the I.J.’s reliance on evidence cutting the other way (e.g., the State Department’s statement that Armenia has no political prisoners).

C. Impact

• Credibility litigation will remain “totality” driven, but tolerant of small discrepancies: The opinion underscores that, in the Fifth Circuit, “minor” inconsistencies can be used if grounded in the record and viewed as suggesting fabrication, resisting the Second/Ninth Circuit approach discussed via Hong Fei Gao v. Sessions and Iman v. Barr.
• Demeanor deference remains strong: By leaning on Wang v. Holder, the court signals that demeanor findings—when not standing alone and tied to the record—are difficult to overturn.
• Procedural fairness arguments face a practical hurdle: Applicants claiming inadequate opportunity to explain inconsistencies must confront Mpesse v. Garland / Matter of Y-I-M-: cross-examination can satisfy notice-and-opportunity, reducing the force of arguments that the I.J. had to independently re-notice the issue.
• CAT claims will fail without individualized, objective proof where credibility collapses: Country conditions showing repression or unrest may be necessary context but are insufficient without a particularized link to the applicant; petitioners should expect courts to require concrete, individualized indicators of risk beyond discredited testimony.

4. Complex Concepts Simplified

• “Adverse-credibility determination”: A finding that the applicant’s story is not reliable. If upheld, it usually defeats asylum and withholding because those claims commonly depend on the applicant’s testimony.
• “Totality of the circumstances” (8 U.S.C. § 1158(b)(1)(B)(iii)): The I.J. can consider many factors together—demeanor, internal consistency, consistency with documents, omissions, and plausibility.
• “Substantial evidence” review: The appellate court does not decide what it would find most believable. It asks whether the record compels the opposite result; if not, it must affirm.
• Asylum vs. withholding vs. CAT: Asylum requires refugee status (including a well-founded fear) and is discretionary; withholding requires a higher probability of persecution and is mandatory if met; CAT requires showing it is more likely than not the applicant will be tortured by or with government acquiescence, and it is analytically separate from asylum/withholding.
• “Generalized country conditions” vs. “particularized risk”: Evidence that a country has unrest or rights abuses does not automatically show this applicant is likely to be tortured; the decision reiterates the need for an individualized showing (Qorane v. Barr).

5. Conclusion

Torosyan v. Blanche reaffirms a practical Fifth Circuit framework: (1) demeanor, plausibility concerns, and even minor record-based inconsistencies/omissions may sustain an adverse-credibility finding; (2) the agency need not accept plausible explanations for discrepancies; (3) the I.J. is not required to personally re-raise inconsistencies already presented through DHS questioning; and (4) after adverse credibility, CAT relief depends on independent, particularized objective evidence—general country unrest alone will not compel relief.