Sebhatleab v. Barr

United States Court of Appeals
for the Fifth Circuit

No. 20-60037
Summary Calendar

Fithawi Teklay Sebhatleab,

Petitioner,

versus

William P. Barr, U.S. Attorney General,

Respondent.

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A201 682 381

Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
Fithawi Teklay Sebhatleab, proceeding pro se, has petitioned for
review of a decision of the Board of Immigration Appeals (BIA). The BIA
denied his motion to remand and dismissed an appeal from an immigration
judge’s order denying asylum, withholding of removal, and relief under 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opinion should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
FILED
November 12, 2020

Lyle W. Cayce
Clerk
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No. 20-60037
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Convention Against Torture (CAT). We DENY IN PART the petition for
review and DISMISS IN PART for lack of jurisdiction.
When considering a petition for review, we review the opinion of the
immigration judge (IJ) when it influenced the BIA decision, as it did here.
See Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). We review factual
findings for substantial evidence, meaning that we do not reverse the BIA’s
factual findings “unless the evidence compels it.” Id. at 536–37.
The IJ found that Sebhatleab was not credible. The credibility
determination relied in part on the supposed inconsistency in the assertions
by Sebhatleab and Teklemariam, his friend with whom he escaped, about the
distance between the Tessenei prison where they were detained and the
Sudanese border. Sebhatleab testified that “[i]f you walk, it would take you
almost 10 hours,” and Teklemariam’s statement was that “the prison was
not that far from the Etrirean/Sudanese border and we managed to walk on
foot across the border.” We do not see any inconsistent meaning in the two
ways to refer to the distance. “Not that far” might well take several hours to
traverse if the distance has to be travelled on foot.
Though these two statements do not affect Sebhatleab’s credibility,
there was other evidence on which the IJ based the credibility decision. She
found that his testimony regarding certain important details was inconsistent
from his credible-fear hearing to his removal proceeding, including the
timeline of threats and detention, where on the body injuries were inflicted,
and how Sebhatleab and his friend escaped. She also found that he had used
false documents to travel through the Middle East, Africa, and to South
America. The IJ’s credibility finding is a reasonable interpretation and is
supported by substantial evidence, which we sustain when the evidence fails
to compel the opposite finding. Chun v. I.N.S., 40 F.3d 76, 79 (5th Cir. 1994).
It fails to compel a different finding here.
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Further, Sebhatleab argues that the BIA should have addressed his
contention that the IJ erred by failing to give him an opportunity to explain
the perceived inconsistencies between his testimony and the documentary
evidence. Where, as here, the BIA’s decision itself causes a new issue to
arise, a party must bring the issue to the BIA’s attention through a motion for
reconsideration. See Omari v. Holder, 562 F.3d 314, 320–21 (5th Cir. 2009).
Sebhatleab did not do so, and this claim that he should have been given an
opportunity to explain is unexhausted. We have no jurisdiction to consider
it. See id.
Sebhatleab contends that the BIA erred by determining that the
evidence he submitted with his motion to remand could have been obtained
prior to the removal hearing. He refers to his detention during removal
proceedings and the difficulties he had obtaining statements from his
relatives in Eritrea. A remand by the BIA is necessary if the evidence being
sought “was not available and could not have been discovered or presented
at the former hearing.” Milat v. Holder, 755 F.3d 354, 365 (5th Cir. 2014)
(quoting 8 C.F.R. 1003.2(c)(1)). Sebhatleab has not shown that level of
difficulty, as he did not attempt to obtain statements from his relatives until
after the IJ’s decision. Once he requested statements from his relatives, he
received them within three weeks.
Sebhatleab next argues that he was improperly denied the
opportunity to establish his case by submitting evidence to corroborate his
testimony that he had scars on his body as a result of beatings while he was
detained in Eritrea. To the extent that he argues that the IJ abused her
discretion by not requesting that officials at his detention facility allow his
counsel to take photographs of the scars, the issue is unexhausted, and we
lack jurisdiction to consider it. See Omari, 562 F.3d at 320–21. Further, to
the extent that Sebhatleab asks this court to consider a “constitutional
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claim,” the issue is not adequately briefed. See Yohey v. Collins, 985 F.2d 222,
224–25 (5th Cir. 1993).
According to Sebhatleab, he obtained photographs of his scars on
March 17, 2020, approximately four months after the BIA dismissed his
appeal, which were taken by a nurse at the Jackson Parish Detention Center.
Sebhatleab asserts that he should be given an opportunity to present these
photographs, and he asks this court to instruct the BIA to remand his case to
the IJ to consider the photographs.
“Under 28 U.S.C. § 2347(c), [this court] may order a remand if
(1) the additional evidence sought to be offered is material and (2) there were
reasonable grounds for the alien’s failure to submit the additional evidence
to the agency.” Miranda-Lores v. I.N.S., 17 F.3d 84, 85 (5th Cir. 1994). The
party must “show[] to the satisfaction of the court” that the above two
requirements are met. § 2347(c).
Sebhatleab argues that detention-facility officials refused to allow
photographs to be taken of Sebhatleab’s scars. But Sebhatleab has presented
no evidence that he or his counsel tried to obtain photographs before his
removal hearing or why he was not able to obtain the evidence more
promptly. He has failed to show reasonable grounds for his failure to submit
evidence of his scars to the agency. See § 2347(c)(2); Miranda-Lores, 17 F.3d
at 85.
Finally, Sebhatleab contends that the BIA erred by denying his claim
for relief under the CAT. He acknowledges that the IJ found that some of his
testimony was not credible, but he asserts that the record is clear that he fled
Eritrea illegally, and he contends that his unlawful departure from Eritrea will
subject him to torture if he is forced to return.
The standards for CAT relief differ from those for asylum; a CAT
claim requires a separate analysis. See Efe v. Ashcroft, 293 F.3d 899, 906–07
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(5th Cir. 2002). A claim for protection under the CAT requires the alien to
show “that it is more likely than not that he or she would be tortured if
removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2); see
Efe, 293 F.3d at 907.
Although an adverse credibility determination in the context of
asylum does not necessarily affect the disposition of a CAT claim, evidence
of Sebhatleab’s CAT claim is affected by the credibility of his assertions that
he escaped from detention and departed Eritrea unlawfully. Thus, the
credibility determination goes directly to the issue whether Sebhatleab will
be tortured in Eritrea. See Efe, 293 F.3d at 907–08. Sebhatleab “has not
shown the evidence is so compelling that no reasonable fact finder could fail
to find [him] eligible for CAT relief.” Roy, 389 F.3d at 140.
Petition for review is DENIED IN PART and DISMISSED IN
PART.
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