Case: 19-60782 Document: 00515736622 Page: 1 Date Filed: 02/08/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-60782 February 8, 2021
Summary Calendar
Lyle W. Cayce
Clerk
Gabriel Maiyili Ndonyi,
Petitioner,
versus
Robert M. Wilkinson, Acting U. S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A209 869 749
Before Barksdale, Southwick, and Oldham, Circuit Judges.
Per Curiam:*
Gabriel Maiyili Ndonyi, a native and citizen of Cameroon, petitions
for review of the Board of Immigration Appeals’ (BIA) decision: dismissing
his appeal of an Immigration Judge’s (IJ) denial of his application for asylum;
and denying his motion to remand based on previously unavailable evidence.
*
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opinion should not be published and is not precedent except under the limited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.
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No. 19-60782
Ndonyi contends the BIA erred in concluding: he waived any challenge to
the IJ’s denial of withholding of removal and protection under the
Convention Against Torture (CAT); he was ineligible for asylum because he
did not suffer past persecution or have an objective fear of future persecution;
and he failed to establish prima facie eligibility for asylum, withholding of
removal, or CAT relief based on previously unavailable evidence.
Our court reviews the BIA’s decision and the IJ’s decision insofar as
it influenced the BIA. Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009).
Legal conclusions are reviewed de novo; factual findings, for substantial
evidence. Iruegas-Valdez v. Yates, 846 F.3d 806, 810 (5th Cir. 2017).
Reversal is improper under substantial-evidence review unless the evidence
compels a contrary conclusion. Chen v. Gonzales, 470 F.3d 1131, 1134 (5th
Cir. 2006).
Since 2002, Ndonyi has been a member of Cameroon’s ruling political
party, the Cameroon People’s Democratic Movement (CPDM), which is
affiliated with the country’s French-speaking population. Notwithstanding
his political affiliation, Ndonyi is an anglophone. In 2016, the
Ambazonians—English speakers who oppose the ruling party—attacked
Ndonyi while he was wearing his CPDM uniform. Later, after a group of
Ambazonians threatened to burn his house down, Ndonyi fled for the United
States.
First, Ndonyi contends the BIA erred in concluding he waived his
claim for CAT relief. This contention was raised for the first time in seeking
review by this court. Ndonyi has, accordingly, failed to exhaust; we lack
jurisdiction to review it. See Omari v. Holder, 562 F.3d 314, 320 (5th Cir.
2009) (“[W]here the BIA’s decision itself results in a new issue and the BIA
has an available and adequate means for addressing that issue, a party must
first bring it to the BIA’s attention through a motion for reconsideration”).
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Similarly, we lack jurisdiction to consider his unexhausted claim that the IJ’s
denial of asylum was predicated on a misunderstanding of the geopolitical
nature of Cameroon. See id.
Second, Ndonyi asserts past persecution and fear of future
persecution, maintaining the BIA erred in considering only the single attack
against him in 2016 and not additional, separate attacks on his sister, son, and
niece. Ndonyi, however, did not have first-hand knowledge of the
perpetrators or their motivations for these attacks. He did not present
evidence from eyewitnesses to the attack on the children, and he further
testified his sister was targeted because of her own political opinion—not to
harm or punish Ndonyi. The attacks on his family members therefore did
not amount to persecution of Ndonyi. See Kane v. Holder, 581 F.3d 231, 239
(5th Cir. 2009) (explaining, for the purposes of past persecution, harm to a
family member must be done “with the intended purpose of causing
emotional harm to the applicant”).
Further, the evidence does not compel the conclusion Ndonyi has an
objectively reasonable fear of future persecution. See Chen, 470 F.3d at 1135
(“To establish a well-founded fear of future persecution, an applicant must
demonstrate a subjective fear of persecution, and that fear must be
objectively reasonable.”) (internal quotation marks and citations omitted).
There is nothing in the record showing, inter alia, the CPDM would
persecute its own members who speak English. Moreover, there was no
evidence the Cameroonian government would condone violence against him,
especially considering his long-term membership in the governing party. See
Galina v. I.N.S., 213 F.3d 955, 958 (7th Cir. 2000) (“[A] finding of
persecution ordinarily requires a determination that government authorities,
if they did not actually perpetrate or incite the persecution, condoned it or at
least demonstrated a complete helplessness to protect the victims”).
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Finally, Ndonyi contends the BIA erred in denying his motion to
remand based on new evidence showing he would not have access to his HIV
medication in Cameroon. Because Ndonyi sought to present additional
evidence that was unavailable at his initial hearing, his motion to remand “is
subject to the same standards and regulations governing motions to reopen”.
Ramchandani v. Gonzales, 434 F.3d 337, 340 n.6 (5th Cir. 2005). A motion to
reopen may be denied if the alien fails to make a prima facie showing that he
is entitled to the relief requested. I.N.S. v. Abudu, 485 U.S. 94, 104 (1988).
The denial of a motion to reopen is reviewed for abuse-of-discretion. Zhao v.
Gonzales, 404 F.3d 295, 303 (5th Cir. 2005).
Ndonyi has legitimate health concerns, but he has not alleged any
connection between the asserted harm and a protected ground, and he has
not alleged the unavailability of his medication constitutes an intentionally-
inflicted harm. The BIA did not abuse its discretion in denying his motion
on the grounds he did not establish prima facie eligibility for asylum,
withholding of removal, or CAT relief.
DISMISSED IN PART; DENIED IN PART.
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