Darwich v. Gonzales

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
October 3, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-60741
Summary Calendar
AIMAN NAZIH DARWICH,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A78 310 118
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Aiman Nazih Darwich petitions for review of the final order
of the Board of Immigration Appeals (BIA) that affirmed the
denial of his applications for asylum, withholding of removal,
and relief under the Convention Against Torture (CAT), and for
voluntary departure. Darwich’s second motion to stay his
deportation is denied.
Darwich argues that the BIA erred in upholding the
immigration judge’s (IJ) decision finding him not credible and
denying his application for asylum. Darwich makes no argument

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challenging the IJ’s determination that even assuming he was
credible, he was not entitled to asylum as a matter of
discretion. Judicial review of a final removal order is
available only if the applicant has exhausted all administrative
remedies as of right. 8 U.S.C. § 1252(d)(1). Failure to exhaust
administrative remedies creates a jurisdictional bar to this
court’s consideration of the issue. Wang v. Ashcroft, 260 F.3d
448, 452 (5th Cir. 2001). “An alien fails to exhaust his
administrative remedies with respect to an issue when the issue
is not raised in the first instance before the BIA-either on
direct appeal or in a motion to reopen.” Id. at 452-53. The
exhaustion requirement is statutorily mandated, jurisdictional,
and nonwaivable. Goonsuwan v. Ashcroft, 252 F.3d 383, 387 (5th
Cir. 2001).
To prevail in this appeal, Darwich must show that the BIA
erred in affirming 1) the IJ’s determination regarding statutory
eligibility for asylum and 2) the determination that he was not
entitled to asylum as a matter of discretion. See Faddoul v.
I.N.S., 37 F.3d 185, 188 (5th Cir. 1994); Morado-Bassil v.
Ashcroft, 119 F. App’x 682, 684 (5th Cir. 2005). Because Darwich
did not challenge the discretionary denial of asylum in his
appeal to the BIA, he has not exhausted this issue, and this
court lacks jurisdiction to consider the denial of asylum as a
matter of discretion. See Morado-Bassil, 119 F. App’x at 684.

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Consequently, Darwich’s argument concerning his credibility as it
relates to his statutory eligibility for asylum is moot. Id.
Darwich argues that he has shown that if he returned to
Lebanon, there is a clear probability that he would face
persecution as a result of his resistance to becoming a member of
Hezbollah. Congress has proscribed the deportation of an alien
whose life or freedom would be threatened on account of race,
religion, nationality, or membership in a social group. 8 U.S.C.
§ 1231(b)(3)(A); Jukic v. I.N.S., 40 F.3d 747, 749-50 (5th Cir.
1994). A petitioner "must demonstrate a clear probability of
persecution on one of the enumerated grounds." Jukic, 40 F.3d at
749-50.
In rejecting Darwich’s claim for asylum, the IJ found that,
even without an adverse credibility finding, Darwich’s claim
would still fail because he had failed to present evidence that
the alleged persecution was on account of one of the statutory
bases, in particular, political opinion. Such a finding is fatal
to Darwich’s claim for withholding as well. Darwich does not
challenge this finding on appeal. By failing to brief this
issue, Darwich has waived or abandoned it. See Soadjede v.
Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003); Calderon-Ontiveros
v. I.N.S., 809 F.2d 1050, 1052 (5th Cir. 1986).
Darwich also failed to raise and brief the issue of CAT
relief in his appeal to the BIA. Darwich has not exhausted this

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issue, and this court therefore lacks jurisdiction to review it.
See Wang, 260 F.3d at 452-53.
Darwich argues that the IJ abused his discretion in denying
his application for voluntary departure. This court lacks
jurisdiction to review a claim that the BIA erred in denying a
request for the discretionary relief of voluntary departure.
8 U.S.C. § 1252(a)(2)(B); Eyoum v. I.N.S., 125 F.3d 889, 891 (5th
Cir. 1997).
PETITION FOR REVIEW DENIED; MOTION TO STAY DENIED.

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