A.b. v. MERRICK B. GARLAND, United States Attorney General

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
A.B.,
Petitioner,
v.
MERRICK B. GARLAND,
United States Attorney General,
Respondent.
No. 21-9584
(Petition for Review)
_________________________________
ORDER
_________________________________
Before TYMKOVICH, MATHESON, and EID, Circuit Judges.
_________________________________
This matter is before the court on two motions filed by Petitioner. In the first
motion, he asks the court to lift the order staying his removal that was entered on
January 12, 2022. In the second motion, he asks the court to amend the order and
judgment to substitute pseudonyms for his and his aunt’s names. The government does
not oppose either motion. We grant both motions. The stay of removal is lifted. The
Clerk is directed to issue the attached amended order and judgment, effective nunc pro
tunc to August 30, 2022, the date the original order and judgment was filed.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
FILED
United States Court of Appeals
Tenth Circuit
October 20, 2022
Christopher M. Wolpert
Clerk of Court
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UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
A.B.,
Petitioner,
v.
MERRICK B. GARLAND,
United States Attorney General,
Respondent.
No. 21-9584
(Petition for Review)
_________________________________
ORDER AND JUDGMENT**
_________________________________
Before TYMKOVICH, Chief Judge, MATHESON and EID, Circuit Judges.
_________________________________
A.B. petitions for review of a decision by the Board of Immigration Appeals
(“BIA”) dismissing his appeal and denying his motion to remand to the Immigration
Judge (“IJ”). Because A.B. failed to exhaust several issues before the BIA that he
 The court has granted Petitioner’s unopposed motion to substitute
pseudonyms in this order and judgment for his and his aunt’s names. We use “A.B.”
for Petitioner and “C.D.” for his aunt, which are not their actual initials.
** After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered
FILED
United States Court of Appeals
Tenth Circuit
August 30, 2022
Christopher M. Wolpert
Clerk of Court
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raises in his petition for review, we dismiss his petition in part for lack of
jurisdiction. Exercising jurisdiction under 8 U.S.C. § 1252(a)(1), we deny the
petition on the remaining issues because A.B. does not demonstrate (1) error in the
BIA’s dismissal of his appeal or (2) an abuse of discretion in its denial of his motion
to remand.
I. BACKGROUND
A.B. is a native and citizen of Mali. In 2013, he entered the U.S. on a student
visa at age 18. In 2021, an IJ found him removable based on his failure to comply
with his student visa. She also denied his applications for withholding of removal
and relief under the Convention Against Torture (“CAT”). The BIA denied his
appeal. It also denied his motion to remand to the IJ, in which he argued changed
country conditions in Mali.
A.B. bases his claims for relief on fear that his family, with the government’s
help, will persecute and torture him if he is removed to Mali. He bases this fear on
his having—during his time in the U.S.—gotten tattoos, married outside of his tribe
without his family’s permission, converted from Islam to Christianity, and been
arrested and jailed for a criminal sex offense—all, he says, in violation of Islamic
Sharia law. He also contends that he fears that non-family members will persecute
and torture him in Mali.
A. A.B.’s Declaration and Testimony
In his declaration and testimony before the IJ, A.B. said the following:
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He has been in the U.S. since 2013, but lost his visa status in 2016 when he
discontinued his studies. In 2017, without his family’s permission, A.B. married a
U.S. citizen who is not from his tribe. He also got two large tattoos, which, he says,
Islam strictly forbids. A.B. was arrested for a criminal offense in 2019. 1 While in
immigration detention, he converted to Christianity.
In Mali, A.B. lived in a large house with his wealthy and powerful immediate
and extended family, including two uncles’ families. His family is also his tribe. His
father and one uncle are wealthy. Each owns several businesses. He said that
another uncle, a tribal leader in his village, makes decisions for the rest of the family,
including whom one can marry. A.B.’s relatives have connections to the Malian
government, including two past presidents. He testified that his father has a personal
relationship with a general who has done favors for him, including detaining a man
until he paid a debt to A.B.’s father.
A.B. said his family practices a strict version of Islam and Sharia law. 2 He
said that his tribal-leader uncle imposes punishments at the mosque, including
ordering beheadings. When he was 10, A.B. said he witnessed a man’s hand being
cut off for stealing. In A.B.’s village, a man who admitted to adultery was publicly
1 A.B. states that, while his BIA appeal was pending, he pled guilty to
violating Colo. Rev. Stat. § 18-3-306, internet luring of a child under the age of 15.
2 The following summarizes A.B.’s and his aunt’s testimony presented to the
IJ. We take no position on the accuracy of their description of Sharia law.
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condemned to be killed, then never seen again. He said that government officials,
including the village police, did nothing to stop these punishments.
A.B. said family members were punished for Sharia law violations. A cousin
received 100 lashes at the mosque for having premarital sex. Another cousin was
frequently whipped and beaten at age 18 or 19 when he snuck out of the house and
repeatedly failed to listen to the elders. A.B. stated that his uncle whipped him when
he was 10 for watching pornography. When he was 11, his father and uncle whipped
him 80 times for sneaking out of the house to see a friend, leaving him scarred. His
father also once whipped him for skipping school.
A.B. said he is almost certain his family would kill him in Mali for violating
Sharia law and bringing dishonor to the family. Although they are aware of his arrest
in the U.S., they may not yet know about his marriage, tattoos, or conversion to
Christianity. He has had no contact with them since his arrest. No one in A.B.’s
family has ever been arrested, and he believes that his arrest alone—for a sexual
crime—would be enough for his family to make him disappear. A.B. said that,
although his family would give him a chance to return to Islam, if he does not, they
would kill him; and if he does, they would still punish him. A.B. said that if he is not
killed, his uncle would skin the tattoos off of his body. He testified that he would
have to abandon his marriage because he would not put his wife in danger in Mali.
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A.B. believes his family will learn he is returning to Mali, either from his aunt
and uncle in the U.S. 3 or from the Malian government. He said he would be killed if
he returned to his family’s home, but he would also be unable to live safely anywhere
else in Mali because his family would use their government connections to find and
kill him. Because his last name indicates his tribe, A.B. does not believe he could
successfully hide in Mali due to a military presence at the airport and at every
checkpoint. He said his father could use government connections to cause state-run
television and radio to post alerts about him, and his uncle would communicate with
other Muslim leaders to find him. Once found, A.B. believes his father will either
kill him or ask the government to make him disappear so he does not bring dishonor
to the family.
The IJ found A.B.’s testimony to be credible and consistent with his
application and the other evidence.
B. Aunt’s Declaration
A.B.’s aunt, C.D., submitted a declaration stating the following. A.B. lived
with his aunt and uncle for the first two years he was in the United States. They have
watched over him for his family. She is familiar with A.B.’s parents from their visit
to the United States. C.D. stated that A.B.’s family practices a strict version of
3 According to custom, A.B. refers to these family friends who live in Denver,
Colorado, as his “aunt” and “uncle.”
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Islam: the father makes all decisions for the family, and those who disobey, even
adults, can be beaten. C.D. is also a very religious, practicing Muslim.
C.D. said that her husband told A.B.’s family about his arrest. She believes
his family is upset, and they have shown no interest in helping him. She thinks his
family believes he is bringing shame upon them and that they will be shocked to
learn of his marriage. In his tribe, marriages are arranged between tribe members.
She said that someone who marries otherwise would be banished from the family.
They would not allow and would react negatively to A.B.’s tattoos. C.D. was upset
when she learned that A.B. has become a Christian. She said that changing religions
is “strictly prohibited.” Admin. R. at 576. “People from religious families get killed
from changing religions.” Id. A.B.’s family would try to make him return to Islam
“or take it to the next level and punish him.” Id.
Considering all of A.B.’s transgressions, C.D. “think[s] there is a very real
chance that [A.B.’s] family will kill him for bringing dishonor on his family. . . . You
are putting a shame on the family, and they take that seriously. . . . That’s the end of
you.” Id. According to C.D., A.B. “could easily disappear.” Id. “Wherever he goes,
trouble will follow him there, because his family will search for him. His family is
wealthy and powerful. . . . [H]e will be in danger there.” Id.
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C. Expert Report
A.B.’s expert on Francophone West Africa presented the following facts and
opinions in a report: 4
The expert stated that strict interpretations of Islamic law call for punishments
in the form of lashes, amputations, beheadings, stonings, and other physical brutality,
which have become more routine in Mali in the past six years. Local authorities and
religious/traditional leaders are the true holders of power in Mali, having authority to
discipline under Islamic law. She said that the inferiority of junior men is enshrined
in the Family Law Code in Mali and disciplinary violence against less-powerful
family or clan members is common.
The expert opined that A.B. would likely be subjected to physical punishment
and torture by his family in Mali because he is a member of a conservative Muslim
family with influential elders and he has rejected the religious and social laws of his
clan. She believes that they will most likely harm him and/or turn him over to state
agents to harm him as a result of his rejection of Islam, tattoos, marrying without his
family’s consent, and becoming attached to Christianity. She said his tattoos would
be a visible mark of resistance to the clan and religious identity his family has
worked to preserve for generations.
4 As with A.B. and C.D., we take no position on the accuracy of the expert’s
discussion of Sharia law.
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The expert noted that A.B.’s relatives are connected to the government through
national commerce (his uncle manages a state-connected corporation) and local
leadership (another uncle is the leader of his clan’s Sufi brotherhood). She believes
these connections give his family greater authority to discipline its members without
government interference. The expert characterized as credible and reasonable A.B.’s
fear of torture by his relatives for his behaviors and practices while in the U.S.
The expert said that a military-led coup in Mali in August 2020 has diminished
the country’s security. She believes that the new military government interferes even
less than the previous regime in family leaders’ assertion of authority. She opined
that A.B. would face a range of persecution in Mali, including by the government,
militant Islamic groups, and his family. The expert concluded that, overall, A.B. “is
at severe risk of severe ill treatment and torture in Mali . . . aris[ing] from his
rejection of Malian norms, including Islam, traditionally pious personal practices
involving bodily non-modification, and family consent in marriage.” Admin. R. at
603-04. 5
5 The expert also testified at A.B.’s IJ hearing. The IJ found her testimony was
probative and persuasive regarding the disputed issues and provided context to the
evidence presented.
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D. Agency Decisions
Immigration Judge
The IJ denied A.B.’s applications for withholding of removal and protection
under the CAT.
Denial of withholding of removal
The IJ first held that A.B. failed to demonstrate that the whippings by his
family when he was a child in Mali were on account of a protected ground. The IJ
stated, “The family’s motivation for harming the applicant was not on account of a
protected ground, but rather an attempt to discipline their child.” Admin. R. at 219.
Because A.B. did not suffer past persecution on account of a protected ground,
the IJ noted he must demonstrate it is more likely than not he would be subjected to
future persecution on such a ground in Mali. The IJ found that, despite his fears,
A.B. did not meet his burden. Among other references to the record, the IJ noted
(1) the lack of evidence that A.B. had “been threatened either directly from any
member of his family or indirectly through his aunt and uncle who live in the United
States,” id.; (2) A.B. believes his family is aware of his pending criminal case, but is
unsure whether they know about his marriage, tattoos, or conversion to Christianity;
and (3) A.B.’s aunt expressed fear that he will be banished from his family for his
transgressions and may punish him.
Although the IJ acknowledged the possibility that A.B. would face harm if he
returns to Mali, she concluded that “[t]he record does not establish a clear probability
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that [A.B.’s] parents are motivated to harm him if he is returned nor does it establish
a clear probability that his parents are motivated to ask the government to harm him
on their behalf if he is returned.” Id. at 220.
Denial of protection under the CAT
The IJ found that A.B.’s CAT claim was too speculative to satisfy the requisite
burden of proof for deferral of removal. Noting that his fear is based, in part, on his
experiences in Mali as a child and punishments he received from his father and his
powerful uncle, the IJ found that “even if his childhood incidents constituted torture,
they are insufficient to find [A.B.] met his burden to establish it is more likely than
not he would be tortured in the future.” Id. at 221.
The IJ observed that country-conditions evidence indicated that family
violence amounting to torture is used in Mali. But she concluded the record
contained insufficient evidence to establish a likelihood that A.B.’s family, or anyone
under its direction, is motivated to harm him based upon his violations of his family’s
rules and expectations while in the United States, including his tattoos, marriage
outside his clan, conversion to Christianity, and arrest. Acknowledging A.B.’s belief
“that his family will punish him in accordance with Sharia law,” the IJ concluded that
“there is insufficient evidence of particularized threats or harm to persuade the Court
that they are intent on punishing him.” Id. at 222.
Noting that A.B. does not plan to return to his family home and his belief his
family will still find and harm him in Mali using government resources, the IJ found
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the evidence did not establish a likelihood his family would do so. Pointing to
evidence of country conditions indicating current turmoil and violence, she
concluded that, even assuming his family was well-connected before the August 2020
coup, the record did not establish a likelihood that they continue to be.
The IJ concluded, “In sum, the applicant did not establish that it is more likely
than not that his family, or anyone acting on their behalf, would seek out and find the
respondent in Mali, and upon finding him, would more likely than not torture him.”
Id.
BIA
Affirm the IJ
The BIA affirmed the IJ’s denial of withholding of removal. It affirmed the
IJ’s determination that A.B. did not demonstrate past persecution, “discern[ing] no
clear error in the [IJ’s] finding that the family’s motivation for punishing him was an
attempt to discipline him, rather than to harm him on account of a protected ground.”
Id. at 4. The BIA further found no clear error in the IJ’s determination that A.B.
failed to show a likelihood of future persecution in Mali. It stated:
While we acknowledge that the respondent’s family practices
a strict version of Islam that includes Sharia law punishments,
the record does not reflect that the respondent has been
threatened, either directly or indirectly, by any member of his
immediate family, or indirectly through his aunt or uncle who
live in the United States. The letter submitted by the
respondent’s aunt indicates only that the respondent will be
banished from his family for his transgressions, and that his
family may punish him. However, his aunt’s letter does not
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indicate that the respondent’s family in Mali relayed any
threats of harm towards the respondent if he were to return to
Mali.
Id. (citation and footnote omitted).
The BIA also affirmed the IJ’s denial of protection under the CAT. It affirmed
the IJ’s determination that the record failed to show that A.B. will more likely than
not be subjected to torture. The BIA “again acknowledge[d] that [A.B.’s] family
practices a strict version of Islam, including the adherence to Sharia law
punishments.” Id. at 5. It also noted that he fears harm from his family based on the
cited violations of the Koran, and that family violence amounting to torture is used in
Mali. But the BIA concluded that the record failed to show that the IJ clearly erred
because, despite his family’s knowledge of some of his conduct, they have not
threatened to harm him, nor have his aunt and uncle in Denver relayed any threats.
And although the country-conditions evidence shows general unrest and family
violence in Mali, the BIA concluded it does not show that A.B. faces a particularized
risk.
The BIA also relied on the IJ’s finding that there was insufficient evidence to
show that A.B.’s family would be able to find and harm him using government
resources in light of the recent coup and turmoil in Mali. The BIA stated that, even if
his family was well-connected to the previous regime in Mali, there was insufficient
evidence that it has a continued relationship with the government currently in place.
The BIA concluded:
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We agree with the Immigration Judge that the
respondent’s claim for relief under the CAT is based on his
speculative assertion that, upon his return to Mali, his family
would seek him out for harm and find him anywhere in the
country, and, upon finding him, torture him with the
acquiescence or consent of the current government. His
belief that his family will seek to punish him in accordance
with Sharia law, without more, is insufficient to meet his
burden to show that he faces an[] individualized risk of
torture in Mali.
Id.
Denial of motion to remand
A.B. filed a motion to remand with his BIA appeal, attaching an addendum
expert report and articles, which the BIA concluded were new and previously
unavailable. The new evidence related to another military coup in Mali in May 2021.
The BIA decided this evidence reflected conditions that were substantially similar to
those at the time of A.B.’s IJ hearing, which occurred in the aftermath of the previous
military coup in August 2020. The BIA concluded the proffered evidence did not
reflect a change in country conditions because there was already political instability
in Mali at the time of his hearing.
The BIA also found that the new evidence failed to establish A.B.’s prima
facie eligibility for relief or would otherwise affect the outcome of his case. It said
the evidence did not address how the latest coup affects whether his family will be
able to prevail on the current government to use resources to harm him. Finally, to
the extent the new evidence related to jihadist groups in Mali, the BIA found it did
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not demonstrate that A.B. would likely be persecuted because he testified that his
family does not condone such groups. The BIA therefore denied A.B.’s motion to
remand.
A.B. did not seek reconsideration of the BIA’s decision.
II. DISCUSSION
A.B. challenges the BIA’s denial of withholding of removal, protection under
the CAT, and his motion to remand to the IJ.
A. Legal Background
Exhaustion and Jurisdiction
Under 8 U.S.C. §1252(d)(1) we have jurisdiction over claims challenging a
final order of removal “if . . . the alien has exhausted all administrative remedies
available . . . as of right.” See Sidabutar v. Gonzales, 503 F.3d 1116, 1118 (10th Cir.
2007); see Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999) (per curiam)
(holding this court lacks jurisdiction to consider a claim the petitioner did not first
present to the BIA).
“It is a fundamental principle of administrative law that an agency must have
the opportunity to rule on a challenger’s arguments before the challenger may bring
those arguments to court.” Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237
(10th Cir. 2010). In the immigration context, “[i]t is not enough to go through the
procedural motions of a BIA appeal, or to make general statements in the notice of
appeal to the BIA, or to level broad assertions in a filing before the Board.” Id.
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(quotations omitted). Rather, “[t]o satisfy § 1252(d)(1), an alien must present the
same specific legal theory to the BIA before he or she may advance it in court.” Id.
Thus, A.B. “may not add new theories seriatim as the litigation progresses from the
agency into the courts.” Id. at 1238.
Thus, before we turn to the merits of A.B.’s contentions, we must determine
whether we have authority to consider them. See Sierra v. INS, 258 F.3d 1213, 1216
(10th Cir. 2001) (“We have an independent duty to examine issues relating to our
jurisdiction.”). That is, we must determine whether A.B. exhausted his contentions
before the BIA.
Standard of Review
We review the agency’s legal determinations de novo and its factual findings
under the substantial evidence standard. See Karki v. Holder, 715 F.3d 792, 800
(10th Cir. 2013). In the immigration context, the substantial evidence standard
means that “findings of fact are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
See Rivera-Barrientos v. Holder, 666 F.3d 641, 645 (10th Cir. 2012). “In this circuit,
the determination whether an alien has demonstrated persecution is a question of
fact[.]” Ritonga v. Holder, 633 F.3d 971, 974 (10th Cir. 2011) (quotations omitted).
“Similarly, a request for protection under the CAT involves factual determinations
reviewed for substantial evidence.” Htun v. Lynch, 818 F.3d 1111, 1118 (10th Cir.
2016). In applying this deferential standard, “[w]e do not weigh the evidence or
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evaluate the witnesses’ credibility.” Sarr v. Gonzales, 474 F.3d 783, 789 (10th Cir.
2007) (ellipsis and quotations omitted).
Because a single member of the BIA affirmed the IJ’s decision in a brief order,
see 8 C.F.R. § 1003.1(e)(5), we review the BIA’s opinion rather than the decision of
the IJ, see Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). “However,
when seeking to understand the grounds provided by the BIA, we are not precluded
from consulting the IJ’s more complete explanation of those same grounds.”
See Uanreroro, 443 F.3d at 1204.
Withholding of Removal
An applicant for withholding of removal must show that if he returns to his
country, his life or freedom would be threatened based on one of five protected
grounds: race, religion, nationality, membership in a particular social group, or
political opinion. See 8 U.S.C. § 1231(b)(3)(A). He must establish a clear
probability of persecution based on a protected ground by showing that such
persecution is more likely than not to occur. See Razkane v. Holder, 562 F.3d 1283,
1287 (10th Cir. 2009).
Convention Against Torture
“[T]he Convention Against Torture prohibits the return of an alien to a country
where it is more likely than not that he will be subject to torture by a public official,
or at the instigation or with the acquiescence of such an official.” Karki, 715 F.3d at
806 (quotations omitted). “Acquiescence of a public official requires that the public
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official, prior to the activity constituting the torture, have awareness of such activity
and thereafter breach his or her legal responsibility to prevent such activity.” Id.
(quotations omitted). “[W]illful blindness suffices to prove acquiescence.” Id.
(quotations omitted).
B. Analysis
On appeal, A.B. raises four issues and asserts various arguments supporting
each.
First, he contends that the BIA legally erred in upholding the IJ’s
determination that he is not likely to be persecuted or tortured by (a) imposing a rule
that there is no likelihood of persecution or torture in the absence of express threats,
(b) ignoring other evidence that he will be harmed by non-family members, and
(c) ignoring other evidence that he will be harmed by family members.
Second, A.B. argues that, in denying protection under the CAT, the BIA
(a) misapplied the agency’s decision in In re J-F-F-, 23 I. & N. Dec. 912
(A.G. 2006), (b) ignored evidence of past torture, (c) failed to consider the aggregate
risk of torture, and (d) ignored evidence that his family will harm him using
government resources.
Third, he asserts the BIA legally erred in denying withholding of removal by
(a) applying the wrong standard of review to the IJ’s determination that he did not
suffer past persecution on account of a protected ground, and (b) disregarding that
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persecution may be based on mixed motives; alternatively, (c) he argues the BIA’s
determination is not supported by substantial evidence.
Fourth, A.B. argues the BIA abused its discretion in denying his motion to
remand to the IJ.
We address each of these issues in turn.
Did the BIA Err in Relying on a Lack of Express Threats by A.B.’s Family in
Upholding the IJ’s Determination that He is Not Likely to be Persecuted or
Tortured?
A.B. challenges the BIA’s reliance on a lack of any express threat of harm by
his family in upholding the IJ’s determination that he is not likely to be persecuted or
tortured in Mali. The following three arguments concern both his withholding of
removal and CAT claims. We lack jurisdiction to consider the first two arguments,
but we have it to consider the third.
No explicit threat
A.B. first argues that the BIA erroneously upheld the IJ’s determination that
his family is not likely to persecute or torture him solely because his family has not
expressly threatened him. See Pet’r’s Opening Br. at 24-26. Citing case law, he
characterizes this as a “legal error, because the BIA may not impose a rule that
express threats are necessary to establish likely harm.” Id. at 16; see also id. at 26
(contending “the BIA erred as a matter of law”).
A.B. did not exhaust this contention in his BIA appeal. In denying his
applications for withholding of removal and CAT protection, both the IJ and the BIA
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relied on the fact that his family has not expressly threatened him. The IJ noted the
lack of such a threat multiple times in her decision. See Admin. R. at 204-07. In his
BIA appeal, A.B. pointed to the IJ’s lack-of-threat finding and argued it did not
undermine his other evidence. See id. at 30-31, 35. But he did not argue that the IJ
legally erred by imposing a rule that express threats are necessary to establish likely
harm. Nor did he cite any of the cases he now relies upon for this proposition.
Because this “specific legal theory” is unexhausted, we lack jurisdiction to consider
it. Garcia-Carbajal, 625 F.3d at 1237 (italics omitted).
Non-family members
A.B. also contends that, by considering only the lack of express threats by
family members, the BIA ignored other evidence showing he will be harmed by non-
family members, particularly government officials and militant Islamists. See Pet’r’s
Opening Br. at 26-27. He maintains that the BIA’s rulings completely disregarded a
statement in his declaration and his expert’s report and testimony about his fear of
harm from government officials and militant Islamists. He characterizes this as a
legal error, contending the BIA “‘is not permitted simply to ignore or misconstrue
evidence.’” Id. at 26 (quoting Karki, 715 F.3d at 800).
A.B. did not exhaust this contention in his BIA appeal. Both the IJ and the
BIA construed his claims for relief to be centered on his fear of persecution and
torture by his family in Mali, with the assistance and/or acquiescence of the Malian
government. Neither the IJ nor the BIA assessed any claim that A.B. is likely to be
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independently persecuted or tortured by non-family members. And A.B. did not
argue in his BIA appeal that the IJ erred, legally or otherwise, by ignoring his
evidence of a likelihood of harm by non-family members, specifically government
officials and militant Islamists.
A.B. asserts in his reply brief that he exhausted this issue because his BIA
appeal presented his arguments more specifically than the petitioners had in
Orellana-Recinos v. Garland, 993 F.3d 851 (10th Cir. 2021). Orellana-Recinos is
distinguishable. In that case, we held that “the lack of an appellate brief to the BIA
does not by itself deprive us of jurisdiction” and that the “Petitioners’ notice of
appeal to the BIA adequately presented their legal theory,” which was “the same
challenge Petitioners present[ed] to this court.” Id. at 859.
In contrast, A.B. filed a brief to the BIA and failed to argue before the BIA, as
he does here, that the IJ erroneously narrowed his claim to a fear of persecution by
family members. 6 His contrary assertions, see Pet’r’s Reply Br. at 10-11, are not
persuasive. The factual scenarios in his BIA appeal presented anticipated persecution
or torture from “religious elders” as limited to family or clan members, rather than
unrelated militant Islamists. Although he cited the deteriorating security situation in
Mali in his BIA appeal, he did so to argue a heightened risk of harm to him from his
6 Also, unlike in Orellana-Recinos, A.B. did not include this argument in his
notice of appeal to the BIA. See Admin. R. at 198-200.
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tribal elders. See Admin. R. at 30, 32, 34, 37-38. And he cited evidence that
fundamentalist Muslims use torture to support his contention that his family would
do so. See id. at 34. Because A.B.’s specific legal theory regarding a fear of
persecution by non-family members is unexhausted, we lack jurisdiction to consider
it.
Family members
Unlike the foregoing arguments, A.B. did exhaust before the BIA his argument
that the agency ignored evidence that his family is likely to persecute and torture
him. See Pet’r’s Opening Br. at 27-28; Admin. R. at 30-36. We therefore have
jurisdiction to consider this contention.
A.B. contends that, by focusing on the lack of express threats of harm by his
family, the BIA ignored other significant evidence in concluding that he failed to
demonstrate a likelihood of future persecution or torture in Mali. In Karki, we stated
that “the BIA may not simply overlook evidence in the record that supports the
applicant’s case” and is “not permitted simply to ignore . . . evidence in the . . .
applicant’s favor.” 715 F.3d at 800 (quotations omitted). A.B. argues that the BIA
failed to adequately consider evidence demonstrating that, if he returns to Mali, his
family will be able to locate him and will harm him. Though he points us to a
portion of the background facts summarized earlier in his brief, A.B. does not explain
how the BIA ignored or failed to adequately consider the cited evidence. See Pet’r’s
Opening Br. at 27-28 (citing evidence summarized at 9-10).
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The BIA did not “ignore” some of the evidence A.B. cites. It noted each of his
asserted violations of Sharia law, his family’s possible lack of knowledge of some of
these violations, the whippings he experienced as a child, and his family’s adherence
of a strict version of Sharia law and punishments. See Admin. R. at 4, 5. The BIA
also acknowledged A.B.’s expert evidence that family violence amounting to torture
is used in Mali and his family’s connections with the Malian government and military
that he claims would enable them to find him. See id. at 5.
That said, the BIA did not specifically mention other evidence that A.B.
identifies in his opening brief. It did not discuss his relative certainty that his family
will punish him, the specific punishments he believes his family will impose, his
belief that his family will try to find him using the Muslim Brotherhood networks, or
his aunt’s statement that “there is a very real chance that [A.B.’s] family will kill him
for bringing dishonor on his family.” Id. at 576.
A.B. asserts that “[t]he BIA’s decision should be vacated because it failed to
address this critical evidence.” Pet’r’s Opening Br. at 28. We disagree. Although
“[t]hese facts are not specifically mentioned in the BIA’s decision, . . . the BIA is not
required to discuss every piece of evidence when it renders a decision.”
Hadjimehdigholi v. INS, 49 F.3d 642, 648 n.2 (10th Cir. 1995). And A.B. does not
develop an argument—nor do we see any basis to conclude—that the BIA’s findings
regarding his risk of future torture and persecution in Mali consisted only of
“conclusory statements” or failed to “set[] out terms sufficient to enable us as a
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reviewing court to see that the Board has heard, considered, and decided.” Id.
(quotations omitted).
We have considered contentions that the BIA ignored evidence in the context
of a petitioner’s argument that the BIA’s decision was not supported by substantial
evidence. In Karki, for example, the petitioner argued that substantial evidence did
not support the BIA’s factual determinations. We concluded the BIA had ignored
certain evidence and that the record compelled a different conclusion. See 715 F.3d
at 801-02, 804; see also id. at 805-07 (concluding the BIA failed to consider certain
evidence and the record as a whole did not reasonably support the BIA’s findings);
Yuk v. Ashcroft, 355 F.3d 1222, 1235-36 (10th Cir. 2004) (acknowledging contention
the IJ ignored evidence contradicting the IJ’s finding; stating the court would not
reweigh the evidence and holding the IJ’s decision was supported by substantial
evidence).
Unlike in these cases, however, A.B. simply points to certain evidence
favorable to his claim that his family is likely to harm him, which he says the BIA
ignored due to its focus on a lack of express threats. See Pet’r’s Opening Br. at 9-10,
27-28. He does not contend that an absence of threats is irrelevant to the risk of harm
he faces from his family. 7 Nor does he develop an argument as to why the lack of
7 In contrast, A.B. does contend that a lack of threats by his family is irrelevant
to his risk of harm by non-family members. See Pet’r’s Opening Br. at 27 (“[T]he
only justification the BIA offered to deny relief—the lack of express threats by
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such threats does not support the BIA’s decision under the substantial evidence
standard that he failed to demonstrate a clear probability of persecution or torture by
his family in Mali.
Did the BIA Otherwise Err in Affirming the IJ’s Denial of CAT Protection?
A.B. argues that in affirming the IJ’s denial of CAT protection, the BIA
(a) misapplied agency precedent, (b) ignored evidence of past torture, (c) failed to
aggregate all risks of torture, and (d) ignored evidence his family would harm him
using government resources. We lack jurisdiction to consider the first three
arguments, but we have it to consider the fourth.
Agency precedent
A.B. argues the BIA misapplied In re J-F-F-, 23 I. & N. Dec. 912 (A.G. 2006),
in affirming the IJ’s denial of his application for CAT relief. See Pet’r’s Opening Br.
at 28-33. In that case, the IJ had granted a noncitizen protection under the CAT by
“[stringing] together a series of suppositions” about what would occur if he were to
be removed. In re J-F-F-, 23 I. & N. Dec. at 917. The BIA affirmed, id. at 912, but
the Attorney General reversed, stating, “[t]he evidence does not establish that any
step in this hypothetical chain of events is more likely than not to happen, let alone
family members—has no impact on whether A.B. will be harmed by non-family
members.”).
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that the entire chain will come together to result in the probability of torture of
respondent,” id. at 917-18. The Attorney General added,
An alien will never be able to show that he faces a more
likely than not chance of torture if one link in the chain
cannot be shown to be more likely than not to occur. It is the
likelihood of all necessary events coming together that must
more likely than not lead to torture, and a chain of events
cannot be more likely than its least likely link.
Id. at 918 n.4.
i. First In re J-F-F- challenge
A.B. first contends it was inappropriate for the BIA to apply In re J-F-F-
because he has not relied on a hypothetical chain of events. He says “he contended
far more directly that his family will torture him with the acquiescence of
government.” Pet’r’s Opening Br. at 29. But he did not exhaust this contention of
error in his BIA appeal.
In his closing argument before the IJ, A.B. set forth the particular chain of
events that he contended was likely: (1) his family would seek to punish him, (2) his
family would be able to find him anywhere in Mali with the assistance of the
government and social networks, and (3) the government would acquiesce in his
torture by harming him or turning a blind eye to the family’s violence against him.
See Admin. R. at 445-46. The IJ referenced this chain of events in her decision,
citing In re J-F-F-. Id. at 205-06. Yet A.B. did not argue in his BIA appeal, as he
does now, that the IJ erred by relying on In re J-F-F-, nor did he assert that his CAT
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claim was not based on a hypothetical chain of events. Because this claim of error is
unexhausted, we lack jurisdiction to consider it.
ii. Second In re J-F-F- challenge
A.B. alternatively contends that if he did rely on a hypothetical chain of
events, the agency erred in applying In re J-F-F- at the second step by concluding his
family would not find him using government resources. He asserts that:
(1) by requiring his family to “find” him, the agency
presupposed that he would live in hiding if returned to
Mali, yet the agency failed to consider whether it is
possible for him to relocate internally;
(2) the agency’s focus on third-party actors using
government resources to carry out torture effectively
conflated In re J-F-F- and the CAT standard for state
action, which requires only that government officials
either acquiesce to torture by third-party actors or
directly perpetrate torture; and
(3) because the agency considered only whether his family
would find him using government channels, as
opposed to social networks, it artificially narrowed the
chain of events that might result in torture,
contravening In re J-F-F-’s holding that the agency
must consider all evidence relevant to the possibility
of torture.
See Pet’r’s Opening Br. at 30-32.
A.B. did not exhaust any of these contentions in his BIA appeal. First, the IJ
found at the second step that the evidence did not establish a likelihood that his
family would find him in Mali using government resources. Yet A.B. did not argue
to the BIA that the IJ failed to conduct an inquiry regarding possible relocation
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within Mali. Second, if the IJ erred by conflating the standards under the CAT and In
re J-F-F-, A.B. did not raise such an error in his BIA appeal. Third, in describing the
likely chain of events at the IJ hearing, A.B. did state that his family would be able to
find him using “social networks” and “networks throughout the country of the
Muslim brotherhood.” Admin. R. at 446. But then the IJ considered only his claim
that his family would find him “using government resources,” id. at 206, and he did
not raise such an error in his BIA appeal. Because all of these issues are
unexhausted, we lack jurisdiction to consider them.
Past Torture
The IJ addressed A.B.’s evidence of past torture, but concluded that “even if
his childhood incidents constituted torture, they are insufficient to find [he] met his
burden to establish it is more likely than not he would be tortured in the future.” Id.
A.B. asserts that, although the BIA mentioned his evidence of past torture in
assessing his withholding claim, the BIA ignored it altogether in addressing his CAT
claim. He argues this is a legal error because 8 C.F.R. § 1208.16(c)(3)(i) requires the
agency to consider evidence of past torture. See Pet’r’s Opening Br. at 32, 33-34.
In Sidabutar, 503 F.3d at 1122, we held the petitioners’ contentions
challenging “the BIA’s allegedly de novo [fact]finding” in contravention of 8 C.F.R.
§ 1003.1(d)(3)(1) “should have been brought before the BIA in the first instance
through a motion to reconsider or reopen.” Id.; see also id. at 1122 n.6. Likewise,
A.B.’s argument that that BIA failed to follow its own regulation—here, 8 C.F.R.
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§ 1208.16 (c)(3)(i)—in assessing his CAT claim should have been brought in a
motion to reconsider. Because the BIA had no opportunity to consider the merits of
this claim, it is unexhausted and we lack jurisdiction to consider it. See id. at 1122.
Aggregate Risks
A.B. contends that, by not considering whether he will be tortured by
non-family members, the BIA necessarily failed to aggregate the risks of torture
presented by all entities he fears. See Pet’r’s Opening Br. at 35. But A.B. did not
raise a failure-to-aggregate argument in his BIA appeal. And to the extent this
contention is based on the BIA’s failure to consider evidence of a likelihood of
torture by non-family members, it is unexhausted as previously explained.
d. Family’s Use of Government Resources
The BIA agreed with the IJ’s finding that A.B. provided insufficient evidence
that his family would be able to find and harm him using government resources.
A.B. argues the agency ignored ample evidence in making this finding. See Pet’r’s
Opening Br. at 32-33. He exhausted this argument in his BIA appeal. See Admin. R.
at 36-37. He points to evidence of his family’s relationship with a Malian general
and to his increased fear of harm following the 2020 coup in Mali based upon that
relationship. See Pet’r’s Opening Br. at 32. A.B. contends that the BIA “had no
basis for its conclusion that [his] family will not harm him using government
resources.” Id. at 33. Thus, he argues that the BIA ignored evidence and that its
finding is not supported by substantial evidence. We disagree.
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The BIA acknowledged A.B.’s contention that “because his family has
connections with the Malian military, the [2020] coup in Mali has military
connections, and the Malian government is in a state of crisis, he will more likely be
tortured by his family and others with the acquiescence of the government.” Admin.
R. at 5. But the BIA agreed with the IJ that the evidence was insufficient to show
that A.B.’s family would be able to find him using government resources. In
particular, even assuming his family was well-connected to the prior regime, the BIA
concluded that “in light of the recent coup and the subsequent turmoil and violence,
there is insufficient evidence that his family has a continued relationship with the
government currently in place.” Id. A.B. argues that, because the 2020 coup was a
military coup, the evidence shows his family became even more connected to the
government through its relationship with the general. Even if such an inference
could be drawn, we are not persuaded that the record compels it, as required by
§ 1252(b)(4)(B), particularly in the absence of evidence regarding the general’s role
in the coup and the post-coup government in Mali.
Did the BIA Otherwise Err in Affirming the IJ’s Denial of Withholding of
Removal?
On his withholding of removal claim, A.B. challenges the BIA’s affirmance of
the IJ’s determination that he failed to demonstrate past persecution on account of a
protected ground. “To establish . . . past persecution, an applicant must show: (1) an
incident, or incidents, that rise to the level of persecution; (2) that is on account of
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one of the statutorily-protected grounds; and (3) is committed by the government or
forces the government is either unable or unwilling to control.” Orellana-Recinos,
993 F.3d at 854 (brackets and quotations omitted). An applicant who demonstrates
past persecution establishes a rebuttable presumption that his life or freedom would
be threatened in the future in the country of removal. See 8 C.F.R.
§ 1208.16(b)(1)(i).
A.B. contends the whippings he received from family members as a child
constituted past persecution on account of his religion. The BIA upheld the IJ’s
contrary determination:
We affirm the Immigration Judge’s determination that
the respondent did not demonstrate past persecution on
account of a protected ground. The respondent testified that,
as a child, he was held down and whipped on one occasion
because he snuck out of his house. He further testified to
other instances of being whipped as a form of punishment.
We note the respondent concedes that an incident where he
was punished by his father and uncle, was as a result of his
sneaking out of the house to visit a friend.
Contrary to the respondent’s appellate arguments, we
discern no clear error in the Immigration Judge’s finding that
the family’s motivation for punishing him was an attempt to
discipline him, rather than to harm him on account of a
protected ground.
Admin. R. at 4 (citations omitted).
A.B. argues (a) that the BIA applied the wrong standard of review to the IJ’s
determination; (b) in deciding that the whippings were motivated solely by an
attempt to discipline him, the BIA failed to consider whether his family members had
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mixed motives that included his religion; and (c) if the BIA did not legally err,
substantial evidence does not support the BIA’s determination. See Pet’r’s Opening
Br. at 36-41. He exhausted these arguments before the agency. See Admin. R. at
38-41. 8
BIA’s standard of review
The IJ concluded that the family’s motivation for whipping A.B. was to
discipline him rather than to harm him on account of a protected ground. He argues
the BIA legally erred by reviewing that determination for clear error instead of
de novo. We review this claim of legal error de novo. See Xue v. Lynch, 846 F.3d
1099, 1106 (10th Cir. 2017) (“The failure of the BIA to apply the correct standard of
review on appeal from the decision of an IJ is, itself, a legal error requiring remand
for additional proceedings.”).
8 A.B. argues the BIA erred by reviewing the IJ’s no-past-persecution
determination under the clear error standard rather than de novo. See Pet’r’s Opening
Br. at 38-39. A.B. exhausted this issue because he asserted in his BIA appeal, citing
8 C.F.R. § 1003.1(d)(3)(ii), that the BIA should review de novo the IJ’s
determination that his childhood whippings were not on account of his religion
because the family’s motive was disciplinary. See Admin. R. at 39-40.
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The BIA’s standards for reviewing an IJ’s decision are set forth in 8 C.F.R.
§ 1003.1(d)(3)(i)-(ii):
(3) Scope of Review.
(i) The Board will not engage in de novo review of findings of fact
determined by an immigration judge. Facts determined by the immigration
judge, including findings as to the credibility of testimony, shall be
reviewed only to determine whether the findings of the immigration judge
are clearly erroneous.
(ii) The Board may review questions of law, discretion, and judgment and
all other issues in appeals from decisions of immigration judges de novo.
The BIA stated it applied these standards. See Admin. R. at 3. But A.B. disagrees as
to the IJ’s past-persecution determination.
A.B. points to the BIA’s construction of § 1003.1(d)(3)(i)-(ii) in Matter of
A-S-B-, 24 I. & N. Dec. 493, 496-97 (B.I.A. 2008), overruled on other grounds by
Matter of Z-Z-O-, 26 I. & N. Dec. 586, 590 (B.I.A. 2015). 9 The BIA held that “[t]he
clearly erroneous standard . . . does not apply to the application of legal standards,
such as whether the facts established by an alien amount to past persecution,”
because “the Board is better positioned to resolve issues involving the application of
legal standards.” Id. at 496 (quotations omitted). In citing a “specific example[],”
9 The government asserts that Matter of A-S-B- was entirely overruled in
Matter of Z-Z-O-. But we concluded in Xue that Matter of Z-Z-O- overruled only that
portion of Matter of A-S-B- “treating as an issue of law an IJ’s predictions as to what
events were likely to happen in the future,” leaving in place the portion of that
decision “which empowered the agency to review de novo an IJ’s determination as to
whether a given set of facts amounts to persecution.” 846 F.3d at 1105 n.9. A.B.
does not rely on the overruled portion of Matter of A-S-B-.
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the BIA stated that whether “the harm was inflicted on account of a protected
ground” is a “question[] that will not be limited by the clearly erroneous standard.”
Id. at 497 (quotations omitted). Based upon this stated example, A.B. argues the BIA
erred by not reviewing de novo the IJ’s determination that his childhood whippings
were not on account of a protected ground. See Pet’r’s Opening Br. at 38-39.
The government responds that the BIA consistently reviews an IJ’s factual
findings regarding a persecutor’s motivation for clear error. See Resp. Br. at 36-37.
See, e.g., Matter of M-A-M-Z-, 28 I. & N. Dec. 173, 176 (B.I.A. 2020) (“An
Immigration Judge’s finding regarding the motive of the persecutor is a factual issue
that is reviewed for clear error.”); Matter of N-M-, 25 I. & N. Dec. 526, 532 (B.I.A.
2011) (“A persecutor’s actual motive is a matter of fact to be determined by the
Immigration Judge and reviewed by us for clear error.”); In re J-B-N- & S-M-,
24 I. & N. Dec. 208, 214-15 (B.I.A. 2007) (noting “[t]he motivation of the
persecutors involves questions of fact” and holding the IJ’s relevant fact-finding was
not clearly erroneous).
We see no conflict in the cited BIA decisions. Matter of A-S-B- did not hold
that the BIA reviews de novo the factual findings underlying an IJ’s decision whether
persecution was on account of a protected ground. Rather, de novo review applies
only to “whether the facts established by an alien amount to past persecution,”
including application of the legal “on account of a protected ground” standard to
those facts. Matter of A-S-B-, 24 I. & N. Dec. at 496-97 (quotations omitted); see
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also Xue, 846 F.3d at 1104 (noting the BIA reviews de novo the “question of law”
“whether a given set of facts amount to persecution”). 10
The foregoing is consistent with the BIA cases cited by the government
holding that a persecutor’s motivation is a question of fact reviewed for clear error.
In Xue, we recognized that the persecution question may turn on disputed facts or on
“the ultimate question of whether a given set of facts amounted to persecution.”
846 F.3d at 1106 n.11; see also Matter of M-F-O-, 28 I. & N. Dec. 408, 411-12
(B.I.A. 2021) (concluding the IJ did not clearly err in finding that gang members
targeted the alien “because they wanted him to join their ranks” and holding that
“motivation[ did] not constitute persecution on account of any valid protected
ground” (quotations omitted)).
We conclude that the BIA did not err in reviewing for clear error the IJ’s
finding regarding the family’s motivation for whipping A.B. as a child. And in light
of the BIA’s conclusion that the IJ’s finding was not clearly erroneous, we are not
persuaded that the BIA then failed to review de novo the IJ’s ultimate determination
that A.B. did not demonstrate persecution on account of a protected ground.
See Admin. R. at 3 (“We review . . . issues of law . . . under a de novo standard.”).
10 Unlike the BIA, this court has held “that the ultimate determination whether
an alien has demonstrated persecution is a question of fact, even if the underlying
factual circumstances are not in dispute and the only issue is whether those
circumstances qualify as persecution.” Xue, 846 F.3d at 1104 (quotations omitted).
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Mixed motives for past persecution
A.B. argues that the BIA legally erred by assuming that childhood whippings
based on disciplinary motivations could not also be based on religion. He maintains
that the BIA’s decision disregarded that (1) a persecutor may have mixed motives,
and (2) a protected ground need only be one central reason for the persecution.
See Pet’r’s Opening Br. at 39-40 (citing Dallakoti v. Holder, 619 F.3d 1264, 1268
(10th Cir. 2010) (holding in a mixed-motive asylum case that “one central reason”
for the persecution means that the protected ground “cannot be incidental, tangential,
superficial, or subordinate to another reason for harm” (quotations omitted))). But
A.B. provides no basis for this argument. In his BIA appeal he argued that the IJ
ignored the law regarding mixed motives and the evidence establishing that his
persecutors were motivated, at least in part, by several protected grounds.
See Admin. R. at 40. The BIA’s affirmance in the face of these arguments shows that
A.B. has not demonstrated legal error by the BIA.
Substantial evidence
Finally, A.B. argues that substantial evidence does not support the BIA’s
determination that his childhood whippings were motivated by his family’s desire to
discipline him rather than to harm him on account of a protected ground. To show
error in the BIA’s decision, he must demonstrate that “any reasonable adjudicator
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would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). 11 Even
were we to disagree with the BIA’s conclusion, that alone would be an insufficient
basis to reverse. See Htun, 818 F.3d at 1119.
A.B. contends, and the government does not dispute, that parental abuse can be
on account of religion. See In re S-A-, 22 I. & N. Dec. 1328, 1329-31,
1335-36 (B.I.A. 2000). But the question is whether A.B.’s religious beliefs, not the
family’s, motivated the punishment. See id. at 1329, 1336 (concluding a father’s
physical and emotional abuse of his daughter, which “arose primarily out of religious
differences,” specifically “the father’s orthodox Muslim beliefs” versus “her liberal
Muslim views,” constituted past persecution “on account of [the daughter’s] religious
beliefs, as they differed from those of her father concerning the proper role of women
in Moroccan society”); cf. INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992) (“The
ordinary meaning of the phrase persecution on account of political opinion is
persecution on account of the victim’s political opinion, not the persecutor’s.”
(ellipsis and quotations omitted)).
11 We have noted the disagreement between this court and the BIA as to the
nature of the ultimate determination whether a noncitizen has demonstrated
persecution and the applicable standard of review. See Xue, 846 F.3d at 1104-06.
But we need not address that disagreement here because A.B. does not challenge our
application of the substantial evidence standard to this issue in his petition for
review.
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A.B. argues the evidence establishes such a motive. See Pet’r’s Opening Br. at
36-37, 40-41. He cites his testimony that he was “punished by the men in [his]
family for breaking the laws of Islam and the laws of [his] family” when his father
and uncle whipped him for sneaking out of his house to visit a friend. Admin. R. at
365; see also id. at 569 (citing leaving the house after returning from school as an
example of violating his family’s “very strict” customs “according to the Koran” that
would result in punishment); id. at 570 (describing being whipped by his uncle for
watching pornography, which is “forbidden”).
A.B. contends these whippings were attempts to discipline him on account of
his insufficient adherence to Islam. See Pet’r’s Opening Br. at 40. He also points to
evidence that adults in his family are also commonly whipped as a punishment for
violating Sharia law, which he says supports the conclusion that he was disciplined at
least in part based on religious transgressions. See id. A.B. asserts that, absent
evidence that disciplinary and religious motives cannot coexist, there is no
evidentiary basis for the BIA’s determination that his childhood whippings were not
on account of his religion.
The government counters that a reasonable adjudicator could find that the
family’s sole motivation was discipline. They punished him as a child, at his home,
and without the religious ritual, for common childhood misbehaviors such as
sneaking out of the house, skipping school, and watching pornography.
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In reply, A.B. asserts that evidence of religious punishments at the mosque
does not preclude that punishments at home were religiously motivated. And he
contends that his uncle, the provincial religious leader, was “summoned” to whip
him, which he says strongly suggests that his punishments “were more than mere
efforts at parental discipline.” Pet’r’s Reply Br. at 19. 12 Finally, A.B. states that his
expert’s report equated family and religious discipline. 13 He concludes that his
family whipped him based upon religious norms and codes prohibiting his actions
and permitting drastic punishments, and there is thus no basis to rule out a religious
motive.
“[W]e cannot reverse the determination of the BIA unless the record compels
us to conclude that it was wrong.” Neri-Garcia v. Holder, 696 F.3d 1003, 1008
(10th Cir. 2012) (quotations omitted). Even if a conclusion could be drawn that
A.B.’s childhood whippings were on account of his religious beliefs and not solely
motivated by a parental attempt to discipline, we cannot reweigh the evidence, and
we are not persuaded that the evidence compels that conclusion. See, e.g.,
Escobar-Hernandez v. Barr, 940 F.3d 1358, 1361 (10th Cir. 2019) (holding petitioner
failed to demonstrate that any reasonable adjudicator would be compelled to
12 A.B. testified that his uncle was the head of the multi-family household in
Mali. See Admin. R. at 351-53.
13 A.B. cites a page of the expert report, Admin. R. at 594, without specifying
a particular statement to this effect.
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conclude, contrary to the IJ’s finding, that a past assault resulted from a personal
disagreement unrelated to the petitioner’s political opinion).
Did the BIA Err in Denying the Motion to Remand?
Along with his BIA appeal, A.B. filed a motion to remand to the IJ, arguing
changed country conditions in Mali after the date of his IJ hearing. He contends the
BIA abused its discretion in denying that motion.
We review the BIA’s denial of a motion to remand for an abuse of discretion.
See Witjaksono v. Holder, 573 F.3d 968, 978-79 (10th Cir. 2009). “The BIA abuses
its discretion when its decision provides no rational explanation, inexplicably departs
from established policies, is devoid of any reasoning, or contains only summary or
conclusory statements.” Qiu v. Sessions, 870 F.3d 1200, 1202 (10th Cir. 2017)
(quotations omitted). The BIA also necessarily abuses its discretion by “committing
a legal error or making a factual finding that is not supported by substantial record
evidence.” Id. (brackets and quotations omitted).
The BIA may deny a motion to remand when the movant either failed to
introduce new material evidence or did not establish a prima facie case for the relief
sought. See Mickeviciute v. INS, 327 F.3d 1159, 1162 (10th Cir. 2003). Ultimately,
the movant must present new evidence that will likely change the result in his case.
See Maatougui v. Holder, 738 F.3d 1230, 1240 (10th Cir. 2013). Such motions are
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“plainly disfavored,” and the movant “bears a heavy burden to show the BIA abused
its discretion.” Id. at 1239 (brackets and quotations omitted). 14
A.B. attached to his motion to remand an addendum expert report and news
articles concerning a military coup in Mali in 2021. The BIA found this evidence
was new and not previously available. But noting that A.B. had submitted expert
evidence regarding the previous military coup in 2020 that occurred before his IJ
hearing, the BIA concluded his new evidence “reflects conditions that are
substantially similar to those that existed at the time of [his] hearing.” It stated
further that
[w]hile [he] proffered evidence of a subsequent coup in May
2021 in Mali, the political instability in Mali had already
existed at the time of the initial hearing, and thus does not
reflect a change in country conditions, and appears to be a
continuation of the same situation as when [he] previously
testified.
Admin. R. at 6.
The BIA separately concluded that A.B.’s new evidence did not establish his
prima facie eligibility for relief or otherwise affect the outcome of his case because it
failed to address how the 2021 coup affected his contention that his family is
sufficiently well-connected to the government of Mali to be able to use its resources
to harm him. And to the extent the new evidence related to jihadist groups in Mali,
14 Our decisions in Mickeviciute and Maatougui involved motions to reopen,
but “[t]he BIA applies the same legal standard to motions to reopen and motions to
remand.” Witjaksono, 573 F.3d at 979 n.10.
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the BIA concluded it failed to demonstrate a clear probability of persecution because
A.B. previously testified that his family does not condone jihadist groups.
A.B. argues the BIA abused its discretion in assessing both his prima facie
eligibility for relief and the materiality of his evidence. Because the BIA’s analysis
regarding his prima facie case focused solely on his risk of harm from his family—
specifically on (1) a lack of evidence of his family’s ability, after the 2021 coup, to
harm him using government resources; and (2) their disapproval of jihadist groups—
A.B. argues the BIA ignored the evidence showing that the government and Islamist
groups are likely to harm him even without his family’s involvement, support, or
approval.
The government responds that the BIA’s focus on a risk of harm by A.B.’s
family was consistent with the arguments in his motion to remand, which
characterized the threat from the Malian government and jihadists following the 2021
coup as increasing the likelihood his family could and would harm him. But A.B.’s
motion was not so limited. Although he argued that jihadists would influence his
family and that he was at an increased risk of being persecuted or tortured by his
family, he also contended that the new military government (including state security
forces), and intolerant Islamist members of Malian society would threaten his life. 15
15 See Admin. R. at 50 (stating “he fears both the government and his family,”
both of which “are encouraged by Islamist militants to treat people like A.B. with
deadly violence”); id. (noting “Malians in government and in society are likely to
become more intolerant of people like A.B.”); id. (stating he fears both “his family
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Thus, we agree with A.B. that, in assessing whether he demonstrated prima facie
eligibility for relief, the BIA failed to address his claims of an increased risk,
following the 2021 coup, of persecution and torture by these non-family members.
But the BIA also separately concluded that A.B.’s new evidence was not
material because it did not demonstrate a change in country conditions in Mali after
his IJ hearing. Challenging this finding, A.B. first argues that the BIA’s conclusion
was too summary and conclusory. We are not persuaded. “The BIA is not required
to write an exegesis on every contention. What is required is that it consider the
issues raised, and announce its decision in terms sufficient to enable a reviewing
court to perceive that it has heard and thought and not merely reacted.” Maatougui,
738 F.3d at 1242-43 (brackets and quotations omitted). Although the BIA’s decision
on this issue is “succinct,” it shows that the BIA considered the issues raised and is
“sufficient for meaningful appellate review.” Id.
A.B. argues further he should be able to show that a change in country
conditions had increased the risk of persecution even when there had already been
some level of persecution. See Qiu, 870 F.3d at 1204 (rejecting BIA’s reasoning that
a substantial increase in religious persecution was irrelevant because China had long
and members of Malian society” because of the popularity of the new pro-Islamist
government); id. at 51 (noting an increased risk of harm by hardline Islamist
members of society, including his family, and by state security forces).
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repressed religious freedom). But the BIA did not preclude him from making such a
showing. It held his new evidence failed to do so.
Finally, again citing Qiu, A.B. contends that the BIA did not adequately
address significant evidence that he submitted. We held in Qiu that “the BIA abused
its discretion by denying the motion [to reopen] on factually erroneous, legally
frivolous, and logically unsound grounds.” 870 F.3d at 1206. But Qiu is
distinguishable. We concluded there that the BIA disregarded uncontradicted
evidence “of a 300 percent increase in the persecution of Christians [in China],
unprecedented violations of religious freedoms beginning in 2014 [three years after
the IJ hearing], and possibly the most egregious and persistent wave of persecution
against Christians since the Cultural Revolution of 1966-76.” Id. at 1204 (quotations
omitted). In contrast, A.B.’s evidence consisted of predictions, less than a month
after the second coup, of what may occur in its aftermath. Moreover, as the
government notes, there is evidence supporting the BIA’s conclusion that A.B.’s new
evidence showed a continuation of substantially similar political instability in Mali
rather than materially changed country conditions. See Resp. Br. at 48-49 (noting
evidence that the same colonel had led both coups and had wielded power even
before the May 2021 coup). Thus, A.B. fails to demonstrate that the BIA’s factual
finding regarding materiality “is not supported by substantial record evidence,” Qiu,
870 F.3d at 1202 (quotations omitted). He has not shown that “any reasonable
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adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B).
III. CONCLUSION
We dismiss in part and deny in part A.B.’s petition for review. We grant
A.B.’s motion to proceed in his petition for review without prepayment of appellate
costs and fees.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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