Alam v. Garland

Case: 19-60797 Document: 00515946225 Page: 1 Date Filed: 07/21/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED July 21, 2021 No. 19-60797 Lyle W. Cayce Summary Calendar Clerk Kazi Ashraful Alam, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A201 341 664 Before Barksdale, Costa, and Engelhardt, Circuit Judges. Per Curiam:* Kazi Ashraful Alam, a native and citizen of Bangladesh, petitions for review of the Board of Immigration Appeals’ (BIA) dismissing his appeal from the Immigration Judge’s (IJ) denying: asylum; withholding of removal; and relief under the Convention Against Torture (CAT). He contends the * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 19-60797 Document: 00515946225 Page: 2 Date Filed: 07/21/2021 No. 19-60797 BIA erred by: upholding the IJ’s adverse credibility determination; and affirming the IJ’s finding he failed to establish eligibility for relief under CAT. Alam further contends: the IJ improperly found he did not suffer past persecution and had no well-founded fear of future persecution; and the IJ failed to grant him humanitarian asylum. The BIA did not consider the IJ’s alternative findings regarding past persecution, fear of future persecution, and the nexus between persecution and political opinion. Instead, it concluded the adverse credibility decision was dispositive. We do not address the IJ’s findings unless they impact the BIA’s decision. See Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). Therefore, we lack jurisdiction to consider Alam’s claims regarding those parts of the IJ’s decision. See Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009) (“[T]his court has the authority to review only the BIA’s decision, not the IJ’s decision, unless the IJ’s decision has some impact on the BIA’s decision.”). Regarding Alam’s contesting the BIA’s denial of CAT relief and the IJ’s denial of humanitarian asylum, neither of these issues has been properly exhausted. The BIA ruled that Alam’s brief did not sufficiently challenge the CAT denial. In addition, his brief did not address humanitarian relief. “Petitioners fail to exhaust their administrative remedies as to an issue if they do not first raise the issue before the BIA, either on direct appeal or in a motion to reopen.” Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009). Along those lines, when the BIA decision itself results in a new issue, as is the case with Alam’s claim for CAT relief, that issue must first be addressed by the BIA for judicial review to be available at this court. Id. at 320. Failure to exhaust an issue creates a jurisdictional bar, and these claims are dismissed. See Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004). 2 Case: 19-60797 Document: 00515946225 Page: 3 Date Filed: 07/21/2021 No. 19-60797 Last addressed are Alam’s claims regarding the …

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals