Case: 21-60330 Document: 00516369698 Page: 1 Date Filed: 06/24/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 24, 2022
No. 21-60330
Lyle W. Cayce
Clerk
Stanley Nyiah Leke,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
No. A 213 189 691
Before Smith, Wiener, and Southwick, Circuit Judges.
Per Curiam:*
Stanley Leke is a native and citizen of Cameroon. He claims that he
has suffered brutal treatment at the hands of Cameroonian government offi-
cials because they perceive him as a supporter of that country’s Anglophone
separatist movement. He seeks protection under the Convention Against
Torture (“CAT”). An Immigration Judge (“I.J.”) denied that request, and
*
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opinion should not be published and is not precedent except under the limited circum-
stances set forth in 5th Circuit Rule 47.5.4.
Case: 21-60330 Document: 00516369698 Page: 2 Date Filed: 06/24/2022
No. 21-60330
the Board of Immigration Appeals (“BIA”) dismissed his ensuing appeal.
Leke petitions for review. His sole claim appears to be that the BIA violated
its own regulations when it failed to consider some of the evidence he intro-
duced in support of his application. Because Leke hasn’t exhausted that
claim, we dismiss his petition for want of jurisdiction.
Before the I.J., Leke testified extensively about his experiences in
Cameroon. He also introduced several pieces of nontestimonial evidence,
such as doctor’s notes, country-conditions evidence, and letters from his law-
yer and brother. The I.J. found that Leke was not credible and held that that
finding was sufficient to deny CAT protection. Even so, the I.J. analyzed and
rejected the rest of his claim “in the interest of a thorough decision.” Nota-
bly, in finding Leke not credible and addressing the remainder of his claim,
the I.J. analyzed the nontestimonial evidence that Leke introduced.
Leke appealed. Among his arguments was that the I.J. erred in evalu-
ating his credibility and the nontestimonial evidence he introduced. The BIA
dismissed his appeal. It held that the I.J.’s credibility determination was not
clearly erroneous and denied CAT protection on that basis. But it did not
analyze some of Leke’s nontestimonial evidence in making that decision.
Leke’s petition for review does not contest the adverse-credibility de-
termination. Instead, he claims that the BIA violated its own regulations by
relying on the adverse-credibility determination without considering the ad-
ditional, nontestimonial evidence he introduced. 1 But Leke has not ex-
hausted that claim, so we lack jurisdiction to review it. Ibrahim v. Garland, 19
1
See 8 C.F.R. § 1208.16(c)(3); see also Arulnanthy v. Garland, 17 F.4th 586, 597–98
(5th Cir. 2021) (explaining that the BIA violates § 1208.16(c)(3) when it “treat[s] [an]
adverse credibility determination as dispositive of [an alien’s] CAT claim” and fails to con-
sider “independent, non-testimonial evidence . . . that could independently establish [an
alien’s] entitlement to CAT relief”).
2
Case: 21-60330 Document: 00516369698 Page: 3 Date Filed: 06/24/2022
No. 21-60330
F.4th 819, 825 (5th Cir. 2021).
The exhaustion requirement demands that an alien present his claim
to the BIA before he brings it to this court so that the BIA has a chance to
correct the error. Martinez-Guevara v. Garland, 27 F.4th 353, 360 (5th Cir.
2022). This means that the alien’s briefing “must ʻraise,’ ʻpresent,’ or ʻmen-
tion’ an issue to the BIA to satisfy exhaustion.” Omari v. Holder, 562 F.3d
314, 321 (5th Cir. 2009). For example, if the petitioner’s briefs to the BIA
and then to this court make the same legal argument on an issue, and the pe-
titioner also argues here that the BIA misapplied that law, no motion for re-
consideration is needed. Martinez-Guevara, 27 F.4th at 360. In contrast,
when the BIA’s decision in an appeal “itself results in a new issue,” the alien
must exhaust the claim by filing a motion to reconsider or a motion to reopen
with the BIA. Id. (quotation and citation omitted). New issues are ones that
the BIA “never had a chance to consider” and that “arise[] only as a conse-
quence of [its own] error.” Id. (quotation omitted).
Under the distinctions we just set out, Leke’s claim is a new, unex-
hausted issue. The I.J. considered and rejected the nontestimonial evidence
he introduced. Then, Leke’s brief to the BIA did not set out caselaw or make
a factual argument that the BIA had to consider both his testimony and his
other evidence in evaluating his CAT claim. The strongest allusion in Leke’s
briefing to the BIA regarding this issue is a statement that “his past torture
on two occasions within the last three years, combined with the objective ev-
idence of ongoing human rights conditions in the record, establishes a clear
probability of future torture in Cameroon.” That is not enough. Leke cannot
“reasonably tie” his claim on appeal—that the BIA erred in relying on the
adverse-credibility determination without considering the additional, nontes-
timonial evidence he introduced—to this statement alone. See Martinez-Gue-
vara, 27 F.4th at 361. The BIA’s failure to consider the record evidence in
addition to Leke’s credibility was thus a new error that “came into existence
3
Case: 21-60330 Document: 00516369698 Page: 4 Date Filed: 06/24/2022
No. 21-60330
only as a result of [its] decision.” Dale v. Holder, 610 F.3d 294, 299 (5th Cir.
2010). Indeed, at least one other panel has already recognized as much in like
circumstances (albeit in an unpublished opinion). See Rodriguez-Perdomo v.
Barr, 784 F. App’x 258, 260–61 (5th Cir. 2019) (per curiam). So Leke’s fail-
ure to move the BIA to reconsider its decision means that this issue has not
been exhausted and that, as a result, we do not have jurisdiction to consider it.
The petition for review is DISMISSED for want of jurisdiction.
4