Kaboh v. Barr

United States Court of Appeals
for the Fifth Circuit

No. 19-60378
Summary Calendar

Grace Kaboh,

Petitioner,

versus

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

Respondent.

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A208 923 800

Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Grace Kaboh, a native and citizen of Cameroon, filed a petition for
review of a decision by the Board of Immigration Appeals (BIA). The BIA
denied Kaboh’s implied motion to remand the case to the immigration judge
(IJ) for the consideration of new evidence and dismissed her appeal of the IJ’s

*
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opinion should not be published and is not precedent except under the limited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
September 14, 2020

Lyle W. Cayce
Clerk
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No. 19-60378
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denial of her application for asylum, withholding of removal (WOR), and
protection under the Convention Against Torture (CAT).
Kaboh fails specifically to challenge the BIA’s denial of her claims for
WOR and protection under the CAT. Thus, she has abandoned any
argument that the BIA’s denial of these claims was erroneous. See Soadjede
v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003); Yohey v. Collins, 985 F.2d 222,
224–25 (5th Cir. 1993).
Similarly, Kaboh fails specifically to challenge the BIA’s denial of her
implied motion to remand the case to the IJ for the consideration of newly
submitted evidence in the form of medical records, photographs, letters, and
news articles. But even assuming Kaboh sufficiently raises this issue by
asserting that her attorney failed to submit her medical records in the
IJ proceedings and by simply relying on the remaining new evidence, her
challenge nevertheless lacks merit.
A motion seeking remand for the IJ to consider new evidence may be
granted only if the “evidence sought to be offered is material and 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) (internal
quotation marks and citation omitted). In the BIA proceedings, Kaboh
essentially acknowledged that her newly submitted medical records were
available and could have been presented at the IJ’s hearing. More generally,
Kaboh asserted that her attempts to obtain additional corroborative evidence
were limited by the Cameroonian government’s intentional disruption of
internet service in her region of the country. However, Kaboh neglected to
offer a specific explanation as to why any particular item of the remaining new
evidence that predated the IJ’s hearing could not have been presented at the
hearing. With respect to the news articles and other documents that postdate
the IJ’s hearing, such that they could not have been presented, Kaboh failed
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to explain how those documents were material to her case. Because Kaboh
has not established that the BIA’s denial of her implied motion to remand
was capricious, irrational, or arbitrary, the BIA did not abuse its discretion.
See Milat, 755 F.3d at 365.
Finally, Kaboh contests the BIA’s factual determination that she did
not satisfy the statutory requirements for asylum. See id. at 360; Zhang v.
Gonzales, 432 F.3d 339, 344 (5th Cir. 2005) (describing the asylum
determination as a factual issue). Kaboh asserts that she suffered past
persecution, or had a well-founded fear of future persecution, due to her
August 2015 arrest and the January 2016 break-in at her home by
Cameroonian police. According to Kaboh, those police actions were taken
on account of her political opinion as expressed in her television interview of
an opposition leader and her stated desire to broadcast the Boko Haram
videos in her possession.
Generally, we have authority to review only the BIA’s decision. But
we will review the IJ’s findings of fact and conclusions of law if, as here, the
BIA adopted them. Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009); Efe v.
Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002). In this case, the BIA accepted
the IJ’s determination that Kaboh neglected to provide reasonably available
supporting evidence to corroborate certain necessary underlying facts,
including that she was a well-known television journalist in Cameroon; that
she possessed Boko Haram videos; and that she had been arrested, detained,
and injured by Cameroonian police in August 2015. Specifically, the IJ
reasoned that Kaboh had failed to provide more compelling photographs or
video footage substantiating her television work; copies of the Boko Haram
videos or letters from those who personally saw them; a statement from the
person who posted her bail after the August 2015 arrest and detention; and
medical records or letters documenting her injuries arising from that
incident.
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Even when, as in this case, there is credible testimony by the applicant,
an asylum application can properly be denied due to the applicant’s failure to
provide reasonably available corroborating information. Yang v. Holder, 664
F.3d 580, 584–85, 587 (5th Cir. 2011). Kaboh failed to demonstrate that a
reasonable trier of fact would be compelled to conclude that the
corroborating evidence sought by the IJ was unavailable. See id. To the
extent that Kaboh presented new arguments and evidence supporting her
asylum claim in the BIA proceeding, and the BIA did not consider the new
arguments and evidence, Kaboh has failed to exhaust her administrative
remedies, and we lack jurisdiction to consider those new issues. See Lopez-
Dubon v. Holder, 609 F.3d 642, 644 (5th Cir. 2010). Moreover, because the
BIA’s factual determination that Kaboh was not entitled to asylum was
supported by record evidence and was substantially reasonable, the denial of
Kaboh’s asylum claim was not erroneous. Shaikh v. Holder, 588 F.3d 861,
863 (5th Cir. 2009); Zhang, 432 F.3d at 344.
Accordingly, the petition for review is DENIED.
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