Tegwi v. Garland ( 2022 )

Case: 20-60709 Document: 00516221459 Page: 1 Date Filed: 03/02/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
March 2, 2022
No. 20-60709 Lyle W. Cayce
Summary Calendar Clerk
Sandrah Ache Tegwi,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A213 315 740
Before Barksdale, Costa, and Oldham, Circuit Judges.
Per Curiam:*
Sandrah Ache Tegwi, a native and citizen of Cameroon, petitions for
review of the Board of Immigration Appeals’ (BIA) dismissing her appeal
from the denial of her application for asylum, withholding of removal, and
relief under the Convention Against Torture (CAT). She asserts: the BIA
*
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opinion should not be published and is not precedent except under the limited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: 20-60709 Document: 00516221459 Page: 2 Date Filed: 03/02/2022
No. 20-60709
erred by not concluding she was a member of her proposed particular social
group (PSG), claiming the Immigration Judge’s (IJ) adverse-credibility
finding did not cover this issue; her proposed PSG membership makes her
eligible for relief; and her case should be remanded or reopened.
In considering the BIA’s decision (and the IJ’s, to the extent it
influenced the BIA), legal conclusions are reviewed de novo, factual findings
for substantial evidence. E.g., Orellano-Monson v. Holder, 685 F.3d 511, 517–
18 (5th Cir. 2012). Under the substantial-evidence standard, petitioner must
demonstrate “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).
An adverse-credibility determination is a factual finding. Singh v.
Sessions, 880 F.3d 220, 225 (5th Cir. 2018). Therefore, “if the IJ’s credibility
determinations are supported by the record, they will be affirmed”. Wang v.
Holder, 569 F.3d 531, 537 (5th Cir. 2009). In making an adverse-credibility
determination, the IJ “may rely on any inconsistency or omission . . . as long
as the totality of the circumstances establishes that an asylum applicant is not
credible”. Id. at 538 (citation omitted) (emphasis in original).
The BIA’s decision was grounded in “specific and cogent reasons
derived from the record”. See Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir.
2005). Tegwi does not show substantial evidence compels a contrary result.
See Avelar-Oliva v. Barr, 954 F.3d 757, 772 (5th Cir. 2020) (denying petition
for review because record did not support petitioner’s credibility). The
adverse-credibility finding was a sufficient basis for the conclusion that
Tegwi was ineligible for asylum and withholding of removal. Id. (explaining
“adverse credibility determination prevents [petitioner] from satisfying her
burden of establishing eligibility for asylum, withholding of removal, and
protection under CAT”).
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No. 20-60709
Additionally, her requested forms of relief are not predicated solely on
PSG membership. To qualify for asylum, an applicant must demonstrate,
inter alia, either past persecution, or a “well-founded fear of future
persecution”. 8 C.F.R. § 208.13(b) (asylum eligibility). To qualify for
withholding of removal, an applicant “must demonstrate a clear probability
of persecution upon return”. Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir.
2004) (per curiam) (citation omitted). To establish a claim for CAT
protection, an applicant must demonstrate it is more likely than not that she
will be tortured in her home country “at the instigation of, or with the
consent or acquiescence of, a public official acting in an official capacity or
other person acting in an official capacity”. 8 C.F.R. §§ 1208.16(c)(2)
(eligibility of withholding under CAT), 1208.18(a)(1) (defining torture).
Tegwi does not point to any evidence showing it is more likely than not that
she will be tortured if repatriated. E.g., Efe v. Ashcroft, 293 F.3d 899, 907 (5th
Cir. 2002) (explaining protection under CAT requires torture, a “higher
bar” than persecution).
Finally, because her request for reopening or remand was not
presented to the BIA, our court lacks jurisdiction to consider it. See Roy, 389
F.3d at 137 (explaining “[j]udicial review of a final order of removal is
available only where the applicant has exhausted all administrative remedies
of right”); 8 U.S.C. § 1252(d)(1) (judicial review of orders of removal).
DISMISSED IN PART; DENIED IN PART.
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