Case: 10-60745 Document: 00511691421 Page: 1 Date Filed: 12/12/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 12, 2011
No. 10-60745 Lyle W. Cayce
Clerk
RUI YANG,
Petitioner,
v.
ERIC H. HOLDER, UNITED STATES ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Before HIGGINBOTHAM, DAVIS, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Rui Yang petitions for review of an order issued by the Board of
Immigration Appeals (“BIA”). Yang, a citizen of China, applied for asylum,
withholding of removal, and protection under the Convention Against Torture
(“CAT”), on the grounds that he fears persecution if he returns to China because
his family practices Falun Gong. The immigration judge (“IJ”) denied Yang’s
application and the BIA dismissed his appeal of the denial. We DENY the
petition for review.
I.
Rui Yang arrived in the United States on September 2, 1998, on a J-1 visa
to participate in a high-school exchange program. On January 24, 2002, his visa
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was changed to an F-1 student visa so he could attend college. Because he no
longer had the money to afford it, he stopped attending school on June 24, 2002.
Yang applied for asylum, withholding of removal, and protection under
CAT on November 28, 2001, after learning that his father faced prosecution in
China for advocating the spiritual movement Falun Gong.1 Yang received an
interview in connection with his application, but he did not hear anything after
the interview. While waiting to learn the disposition of his application, Yang
moved from Los Angeles to Dallas.
A notice to appear was issued on the basis of Yang’s failure to comply with
visa requirements and mailed to his Los Angeles address.2 Because Yang did not
receive the notice and therefore did not appear, he was ordered removed in
absentia on March 10, 2006. He then filed a motion to reopen his case, arguing
that he had not received a decision regarding his 2001 application for asylum.
This motion was granted and his application for asylum was transferred to
Dallas.
Yang appeared before an IJ on November 26, 2007, and explained that he
did not have a lawyer. He received a continuance until March 17, 2008, to seek
an attorney to represent him, and then, because he had not yet located an
attorney by that date, he received another continuance until May 19, 2008. At
his May 19 hearing, the IJ determined that Yang had “failed to maintain and
comply with conditions of [his] changed status.” Although Yang still had not
obtained an attorney, the IJ scheduled a hearing before another IJ to allow Yang
to present his case for asylum.
1
Because the BIA did not address whether Yang’s application for asylum was filed
within the time period mandated by statute, we need not address Yang’s argument that
“changed circumstances” and “extraordinary circumstances” allowed him to file his application
more than one year after he arrived in the United States.
2
The administrative record shows that Yang properly notified the BIA that he had
changed his address.
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Yang’s asylum hearing was held on October 27, 2008. No attorney
appeared on Yang’s behalf before the IJ in this proceeding. At the hearing, Yang
testified that he feared Chinese authorities would arrest him if he returned to
China. Yang explained that while he himself practices Christianity and not
Falun Gong, his parents practice Falun Gong. In response to Chinese repression
of Falun Gong, Yang said that he had sent pro-Falun Gong articles to his
parents that his parents had distributed in China. These materials, Yang
contended, caused Chinese authorities to arrest his father.
Yang testified that he believes the Chinese authorities want to harm him
because of his support for Falun Gong. The Chinese police have not made any
contact with Yang. Nevertheless, Yang said that the authorities are aware that
he transmitted pro-Falun Gong materials to his parents because the police would
have found envelopes containing Yang’s return address when they searched the
house of Yang’s family. Yang further maintained that he fears physical harm
should he return to China because of his previous support for Falun Gong.
During the year in which Yang’s father was detained, Yang testified, the
Chinese authorities beat his father, and they released him only because Yang’s
uncle paid a bribe to government officials. Yang said his father had not been
detained or physically harmed by the Chinese authorities since his year-long
detention ended, but his father had been required to meet periodically with
government officials to reaffirm his disapproval of Falun Gong. At the present
time, according to Yang, his parents are still in China but suffer from a number
of medical ailments.
During the hearing before the IJ, Yang did not present evidence
specifically corroborating his testimony. He maintained that the Chinese
authorities did not issue any paperwork when they charged, arrested, or
released his father because the government does not issue paperwork in cases
related to Falun Gong. While Yang speaks regularly to his parents by telephone,
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he informs this court that he not did not seek letters from his family because he
did not think they would be considered by the IJ. Yang told the IJ that he had
reports corroborating his parents’ medical condition, but he had left them at his
apartment. When it became clear during the hearing that the IJ wanted more
corroborating evidence, Yang offered to retrieve the medical reports and to
gather more information. The IJ refused, however, to provide a continuance for
Yang to seek letters from his family members, explaining that Yang’s application
had been pending for two years and he had received assistance from two
attorneys in preparing the application. While Yang did not corroborate the
specific aspects of his story, his testimony was corroborated in general terms by
the State Department’s country report on China, which details a “crackdown” on
Falun Gong and cites reports of 3,000 members of Falun Gong dying from
torture in the last decade in China.
On October 31, 2008, the IJ denied Yang’s application for asylum,
withholding of removal, and protection under CAT. In explaining his denial of
Yang’s application for asylum, the IJ cited Yang’s failure to provide documentary
evidence pertaining to his father’s arrest, statements from his parents or uncle,
or documentation of his contention that the Chinese authorities intended to
arrest him. The IJ also ruled that Yang’s “evidence fails substantively and
legally, as it fails to establish a nexus between one of the 5 bases of the Act and
his asserted persecution.” Because Yang had failed to establish that he was
eligible for asylum, the IJ further determined that he had failed to meet the
higher standards for withholding of removal and protection under CAT. Finally,
the IJ ruled that Yang was not entitled to voluntary departure, explaining that
Yang had not requested voluntary departure and did not meet the standard for
voluntary departure in any event.
The BIA affirmed the IJ’s decision. The BIA ruled that Yang “did not
provide sufficient documentation to corroborate his claim.” While acknowledging
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that Yang’s contention that he was unable to provide official documentation of
his arrest “may be valid,” the BIA held that Yang could have provided
statements from his parents “detailing the father’s detention, the search of their
house, and the alleged charge against [Yang],” as well as a statement from his
uncle “who [Yang] claimed was the person responsible for obtaining his father’s
release.” Such statements “were reasonably available,” the BIA explained, “and
it was reasonable to expect such evidence to corroborate the material aspects of
[his] case.” Thus, the BIA held that Yang “failed to meet [his] burden of proof
because [he] has not provided sufficient evidence of the foundation of [his]
claim.” The BIA also ruled that Yang failed to meet the higher burden of
showing that he was entitled to withholding of removal or protection under CAT.
The BIA did not address the IJ’s determination that Yang did not qualify for
voluntary departure or that Yang had not established a well-founded fear of
future persecution.
Yang subsequently petitioned this court to review the BIA’s order. In
support of his petition for review of the BIA’s order, Yang includes a notice
translated from the Chinese purporting to show that Yang faces charges of
slander against the Chinese government on account of his support for Falun
Gong. This notice, which post-dated the BIA’s order, was not submitted to the
IJ or BIA.
II
On appeal, Yang argues that the BIA erred by concluding that he had
failed to prove that he was a refugee.3 Specifically, he challenges the BIA’s
determination that his failure to provide corroborating evidence provided a
sufficient rationale for the BIA to deny his application for asylum, even without
3
Yang also argues that the IJ erred by holding that Yang’s fear of future persecution
was not on account of a protected ground of asylum. Because the BIA did not adopt this
rationale for denying Yang’s application, however, we do not consider it here. See Zhu v.
Gonzales, 493 F.3d 588, 594 (5th Cir. 2007).
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making a determination about his credibility. This challenge implicates two
questions that we have jurisdiction to consider: first, whether, as a matter of
law, it is permissible for the BIA to deny an application for asylum based solely
on petitioner’s failure to submit evidence corroborating his testimony; and
second, whether the BIA reasonably applied this rule when considering Yang’s
application. Yang also contends that the BIA erred by denying his request for
withholding of removal and protection under CAT.
A.
“We review factual findings of the BIA and IJ for substantial evidence, and
questions of law de novo, giving considerable deference to the BIA’s
interpretation of the legislative scheme it is entrusted to administer.” Zhu, 493
F.3d at 594 (internal quotation marks and citation omitted). We review the
order of the BIA and the ruling of the IJ to the extent it influences the order of
the BIA. See Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997).
B.
We first address whether Yang’s failure to submit corroborating evidence
justifies the denial of his application for asylum. To be eligible for asylum, an
applicant must establish that he is a “refugee.” 8 C.F.R. § 1208.13(a). A person
is a refugee if he has suffered past persecution or has a well-founded fear of
future persecution. Id. § 1208.13(b). To establish a well-founded fear of future
persecution, an applicant for asylum must show a “reasonable probability” of
suffering persecution if returned to his home country. Id. § 1208.13(b)(2)(i)(B).
The applicant bears the burden of proof of establishing that he is a refugee. Id.
§ 1208.13(a).
The BIA determined that Yang did not carry his burden of proving that he
is a refugee because he did not provide reasonably available evidence
corroborating his testimony. This determination was based on the BIA’s
interpretation of 8 C.F.R. § 1208.13(a), which reads as follows:
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The burden of proof is on the applicant to establish that he or she is
a refugee as defined in section 101(a)(42) of the Act. The testimony
of the applicant, if credible, may be sufficient to sustain the burden
of proof without corroboration.
Id.4 The BIA’s interpretation of 8 C.F.R. § 1208.13(a) is based on its
determination in Matter of S-M-J-, 21 I. & N. Dec. 722, 724-26 (BIA 1997). In
Matter of S-M-J-, the BIA held that denial of an application for asylum can be
based on the absence of reasonably available corroborating information for the
applicant’s testimony, even if the BIA has no reason to believe that the applicant
lacked credibility. The BIA wrote that even credible testimony might not satisfy
the applicant’s burden of proof because testimony is only “part of the body of
evidence which is intertwined and considered in its totality.” 21 I. & N. Dec. at
729. The government argues that this court should defer to the BIA’s reasoning
in Matter of S-M-J-.
Yang responds that credible testimony should be sufficient to carry a
petitioner’s burden of proof in an application for asylum. In support of his
argument, he relies on the language of 8 C.F.R. § 1208.13(a), and a Seventh
Circuit case, Georgis v. Ashcroft, 328 F.3d 962, 969 (7th Cir. 2003).
Because we defer to the BIA’s reasonable interpretations of its own
regulations, Zhu, 493 F.3d at 594, we must decide whether the BIA’s
interpretation of 8 C.F.R. § 1208.13(a) is reasonable. The question is one on
which circuits have divided. The Ninth Circuit held that the BIA cannot reject
credible testimony on the grounds that it was uncorroborated, relying on three
separate lines of Ninth Circuit precedent that, according to the court, mandated
its conclusion. See Ladha v. INS, 215 F.3d 889, 899-901 (9th Cir. 2000),
overruled on other grounds by Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.
4
The parties agree that the REAL ID Act, which explicitly authorizes the BIA to
require corroborating information even when applicants for asylum are credible, does not
govern Yang’s burden of proof because Yang applied for asylum in 2001, before Congress
passed the REAL ID Act. See Matter of S-B-, 24 I. & N. Dec. 42 (BIA 2006).
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2009). The Second, Third, Sixth, and Eighth Circuits, conversely, have all held
that the BIA’s construction of 8 C.F.R. § 1208.13(a) in Matter of S-M-J- was
reasonable. See Diallo v. INS, 232 F.3d 279, 285-86 (2d Cir. 2000); Abdulai v.
Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001); Dorosh v. Ashcroft, 398 F.3d 379, 382
(6th Cir. 2004); El-Sheikh v. Ashcroft, 388 F.3d 643, 647 (8th Cir. 2004). The
Seventh Circuit permits the BIA to require corroboration of testimony in certain
circumstances but prohibits the BIA from rejecting applications for asylum
based on the applicant’s failure to provide corroborating evidence if the
testimony is “specific, detailed, and convincing.” Compare Gontcharova v.
Ashcroft, 384 F.3d 873, 877 (7th Cir. 2004) (“Nevertheless, we do not reject the
BIA’s corroboration rule out of hand.”) with Dawoud v. Gonzales, 424 F.3d 608,
612-13 (7th Cir. 2005) (“The regulation, in our view, cannot bear an
interpretation that would exclude all possibility of an applicant’s relying
exclusively on credible but uncorroborated testimony, so long as that testimony
is specific, detailed, and convincing.”).5
Like most other circuits to have considered this question, we disagree with
Yang’s argument that the BIA can never require credible applicants for asylum
to corroborate their testimony. The Third Circuit persuasively explained why
such an interpretation is not supported by the language of the regulation:
The regulation states that credible testimony may be enough to
meet the applicant’s burden of proof. Saying that something may be
enough is not the same as saying that it is always enough; in fact,
the most natural reading of the word ‘may’ in this context is that
credible testimony is neither per se sufficient nor per se insufficient.
Abdulai, 239 F.3d at 552. Given the commonly understood meaning of the word
“may,” it cannot be that all applicants who provide credible testimony have
5
While Georgis v. Ashcroft, the Seventh Circuit case cited by Yang, does note that
corroborating evidence is not always necessary for applicants for asylum, the court’s decision
to remand was based on the applicant’s submission of evidence specifically corroborating her
testimony. See Georgis, 328 F.3d at 969. Accordingly, the decision does not help Yang.
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satisfied their burden of proof.
We still must decide, however, whether it is reasonable for the BIA to
interpret the regulation such that the failure to provide corroborating proof is
“dispositive” and relieves it of any obligation to make a credibility determination.
In response to Yang’s argument that his testimony alone was sufficient to carry
his burden of proof, the BIA wrote that Yang has “failed to meet [his] burden of
proof because [he] has not provided sufficient evidence of the foundation of his
claim.” This sentence includes a footnote that describes Yang’s failure to
corroborate his testimony as “dispositive of the appeal.” Accordingly, the BIA
did not make a determination regarding Yang’s credibility. The BIA’s view that
a failure to corroborate testimony is “dispositive” seems, at first glance, to be in
tension with the language of 8 C.F.R. § 1208.13(a), which explicitly allows
applicants for asylum to establish their entitlement to relief without
corroborating their credible testimony. This language seems to imply that the
first step for the BIA in assessing applications for asylum should be to determine
whether the applicant’s testimony, by itself, satisfies the applicant’s burden of
proof. Despite this language, the BIA does not assess the credibility of an
applicant’s testimony–and therefore does not decide whether the applicant’s
testimony satisfies the burden of proof by itself–unless the BIA determines that
corroborating evidence is not reasonably available. In effect, the BIA’s
interpretation reads in an additional clause to the language of 8 C.F.R. §
1208.13(a): “The testimony of the applicant, if credible, may be sufficient to
sustain the burden of proof without corroboration, but only if corroboration is not
reasonably available to the applicant.”
We cannot say that this interpretation is unreasonable. Two circuits have
implicitly rejected this iteration of the BIA’s corroboration rule by remanding
due, in part, to the BIA’s failure to make a credibility determination. See Diallo,
232 F.3d at 287; Ikama-Obambi v. Gonzales, 470 F.3d 720, 725 (7th Cir. 2006).
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We disagree with these decisions because making an explicit credibility
determination is not necessary to effectuate the meaning of the regulation. Cf.
Dorosh, 398 F.3d at 382 (holding that court need not address BIA’s credibility
determination where applicant for asylum did not sufficiently corroborate her
testimony). According to the BIA’s interpretation of 8 C.F.R. § 1208.13(a),
applicants are eligible for asylum based solely on credible testimony only if
corroborating evidence is not reasonably available. Our conclusion that this
interpretation is reasonable is supported by Congress’s codification of a similar
rule, see 8 U.S.C. § 1158(b)(1)(B)(ii), and by the importance we ascribe to IJs’
ability to verify applicants’ testimony. See Matter of S-M-J-, 21 I. & N. at 730-
31. Because the BIA’s interpretation permits it to deny applications for asylum
based solely on their failure to provide reasonably available corroborating
evidence, we would elevate form over substance if we required the BIA to make
a credibility determination when it decides that an applicant failed to provide
reasonably available corroborating evidence.
Further, our circuit precedent supports the BIA’s interpretation. We have
implicitly approved of the BIA’s requirement that applicants for asylum submit
information corroborating their testimony. Zhao v. Gonzales, 404 F.3d 295, 304-
05 (5th Cir. 2005) (describing “requirement” that applicants for asylum submit
corroborating information); see also Mutagwanya v. Gonzales, 129 Fed. App’x
899, 900-01 (5th Cir. 2005) (“When it is reasonable to expect that such evidence
exists, an applicant should provide corroborating evidence relevant to the
specifics of his allegations, or he should provide an explanation of why he did not
provide such evidence.”). Our implicit approval of the “requirement” that
applicants for asylum submit corroborating evidence further implies that we
approve of rejecting applicants for the sole reason that they do not meet this
requirement. Additionally, in an unpublished opinion, we rejected an applicant’s
argument that the BIA’s failure to make a credibility determination with respect
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to her testimony necessitated remand of her application for asylum. See Mei He
v. Holder, No. 10-60915, 2011 WL 4436627, at *2 (5th Cir. 2011) (unpublished).
Accordingly, the BIA need not make a credibility determination when it
determines that corroborating evidence is reasonably available to the applicant
but was not submitted.
C.
Having determined that the BIA reasonably interpreted its own
regulations in Matter of S-M-J- when it ruled that applicants can be required to
provide reasonably obtainable corroborating evidence even when their testimony
is credible, we next consider whether that rule was appropriately applied to
Yang’s application.
The BIA based its determination that Yang did not provide reasonably
available corroborating evidence on Yang’s failure to provide a letter from his
parents detailing their detention and the search of their house, and a letter from
Yang’s uncle detailing how Yang’s father was released. Yang argues that he did
not obtain a letter from his parents because he “(generally) always
communicated with his parents by telephone.” He further contends that he did
not know that such letters would have helped his application, but he might have
known better if he had been represented by a lawyer.6
Our authority to review determinations with respect to availability of
evidence is limited. According to the REAL ID Act, “No court shall reverse a
determination made by a trier of fact with respect to the availability of
corroborating evidence unless the court finds a reasonable trier of fact is
6
Yang also explains that he attempted to submit medical records to the BIA, but these
records were not accepted because he did not submit them to the IJ. He explains that he left
the medical records at home the day of his hearing, and that they had not been translated
prior to the hearing. We need not consider these contentions because Yang’s failure to submit
corroborating medical records was not a basis for the BIA’s denial of his application.
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compelled to conclude that such corroborating evidence is unavailable.”7 8
U.S.C. § 1252 (b)(4). Thus, we must consider whether the IJ was “compelled to
conclude” that the letters from Yang’s family members were unavailable. See id.
We are not convinced that the IJ here was compelled to conclude that
letters from Yang’s family members were unavailable. In fact, Yang’s brief does
not argue that letters from Yang’s family members were unavailable, or even
that they were especially difficult to obtain. While Yang argues that he
generally speaks with his parents by telephone, this does not establish that he
is unable to obtain letters from them. He does not explicitly address whether a
letter from his uncle was reasonably available in his briefing. He instead argues
that he did not realize he was supposed to present letters from his family
members in his application because he was not represented by counsel. He does
not cite, and our research does not uncover, cases supporting the proposition
that a lack of representation in an asylum proceeding excuses the duty of
applicants for asylum to satisfy their burden of proof.8
To the extent that Yang argues that he would have obtained the required
evidence if the IJ had granted him more time, he effectively contends that the
IJ abused his discretion by failing to grant Yang a continuance to obtain more
evidence. Yang’s failure to raise this argument to the BIA, however, constitutes
a failure to exhaust administrative remedies and deprives us of jurisdiction to
consider this argument. See Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009).
In his briefing to the BIA, Yang wrote, “Again, perhaps if Mr. Yang had had the
7
While the REAL ID Act does not govern Yang’s burden of proof, it does govern our
standard of review with respect to the IJ’s determination regarding corroborating evidence.
See REAL ID Act of 2005 § 101(e), Pub. L. 109-13, 119 Stat. 231 (providing that amended
standard of review set forth in 8 U.S.C. § 1252(b)(4) takes effect on the date the REAL ID Act
was enacted).
8
While the IJ noted that Yang had the assistance of two lawyers prior to his October
27, 2008, hearing, there is no evidence that these lawyers assisted Yang with the application
for asylum that the IJ denied on October 31, 2008.
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benefit of having had a lawyer for his hearings, he might have known well
enough to have gotten letters from his parents . . . .” The manner in which Yang
raised this argument did not exhaust his administrative remedies. As we have
explained, “the purpose of the statutory exhaustion requirement is to allow the
BIA the opportunity to apply its specialized knowledge and experience to the
matter and to resolve a controversy or correct its own errors before intervention.”
See Lopez-Dubon v. Holder, 609 F.3d 642, 644 (5th Cir. 2010) (quoting Sidabutar
v. Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007)) (internal quotation marks and
citations omitted). Here, the phrasing of Yang’s brief was not sufficiently
specific to provide a reasonable opportunity for the BIA to correct the agency’s
decision before judicial intervention.9 Instead of requesting a continuance,
Yang’s argument suggests that he is urging the BIA to alter the standard for
what evidence is considered “reasonably available” in cases of applicants
proceeding pro se. Accordingly, we cannot conclude that Yang exhausted his
administrative remedies and we do not have jurisdiction to consider this
argument.
D.
In addition, Yang raises a number of other arguments over which we do
not have jurisdiction. Yang argues that this panel should consider evidence that
he submits to this court for the first time on appeal. He informs this court that
he has also submitted the evidence to the BIA in a motion to reopen the case.
Because the BIA has not yet ruled on this motion, however, Yang has not
exhausted his administrative remedies. See Omari, 562 F.3d at 318.
Accordingly, this court does not have jurisdiction to consider Yang’s newly
submitted evidence. Id. For the same reason, we also reject Yang’s request for
9
Yang was more specific in his argument to the BIA and to this court that he should
have received more time to retrieve corroborating medical records from his residence. We need
not address this issue because the BIA’s decision was not based on Yang’s failure to provide
these medical records.
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voluntary departure. Because he failed to seek voluntary departure before the
IJ, Yang failed to exhaust his administrative remedies. See id.
E.
Because we deny Yang’s petition for review with respect to his application
for asylum, it follows that we also deny his petition for review with respect to his
application for withholding of removal, which has a more demanding standard
than asylum. See 8 U.S.C. 1231(b)(3) (restricting withholding of removal to
immigrants whose life or freedom the Attorney General decides “would be
threatened in that country . . .”). Given Yang’s failure to argue at any point in
his brief that he is more likely than not to be tortured should he return to China,
we also hold that he has not carried his burden of proving entitlement to relief
under CAT. See 8 C.F.R. §§ 1208.16(c), 1208.18(a); Dardar v. Lafourache Realty
Co., Inc., 985 F.2d 824, 831 (5th Cir. 1993) (“Questions posed for appellate
review but inadequately briefed are considered abandoned.”) (citations omitted).
While we “liberally construe briefs of pro se litigants and apply less stringent
standards to parties proceeding pro se than to parties represented by counsel,
pro se parties must still brief the issues and reasonably comply with the
standards of Rule 28.” Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995)
(citation omitted).
III.
For the foregoing reasons, we DENY the petition.
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