Suresh v. Wilkinson

Case: 19-60690 Document: 00515769470 Page: 1 Date Filed: 03/08/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED March 8, 2021 No. 19-60690 Lyle W. Cayce Summary Calendar Clerk Santhasoruban Suresh, Petitioner, versus Robert M. Wilkinson, Acting U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A201 352 912 Before Haynes, Willett, and Wilson, Circuit Judges. Per Curiam:* Santhasoruban Suresh, a native and citizen of Sri Lanka, petitions for review of the decision of the Board of Immigration Appeals (BIA) dismissing his appeal from the decision and order of the Immigration Judge (IJ) denying his application for asylum, withholding of removal, and Convention Against * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 19-60690 Document: 00515769470 Page: 2 Date Filed: 03/08/2021 No. 19-60690 Torture (CAT) relief. We review the decision of the BIA and will consider the IJ’s underlying decision only to the extent that it influenced the BIA’s determination. Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). Suresh does not substantively challenge the dismissal of his withholding of removal claim and has, therefore, abandoned any such challenge. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003). A petitioner fails to exhaust, and we lack jurisdiction to consider, issues that he has not first raised before the BIA. Omari v. Holder, 562 F.3d 314, 318-19 (5th Cir. 2009). “[W]here the BIA’s decision itself results in a new issue and the BIA has an available and adequate means for addressing that issue, a party must first bring it to the BIA’s attention through a motion for reconsideration.” Id. at 320. That is, a petitioner must exhaust, by raising in a motion for reconsideration, any challenge “stemming from the BIA’s act of decisionmaking [when the challenge is] one that neither party could have possibly raised prior to the BIA’s decision.” Id. at 320-21. Suresh failed to exhaust before the BIA, and we therefore lack jurisdiction to consider, his contentions that (1) the transcript of his Border Patrol interview should not weigh against his credibility because it was implausible, unreliable, and inaccurate, (2) the BIA failed to address a purportedly-raised claim for asylum based upon his status as a failed asylum seeker, and (3) the BIA erred by denying CAT relief because it (a) failed to consider the claim independently and under the correct legal standard, and (b) improperly excluded from consideration his documentary evidence other than the 2017 Department of State Human Rights Report. See id. at 318-21. We review the dismissal of Suresh’s asylum claim under the substantial evidence standard. See Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005). The determination that Suresh lacked credibility constitutes a factual finding that we likewise review for substantial evidence. See Wang, 569 F.3d at 536-40. …

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