Case: 21-60665 Document: 00516430125 Page: 1 Date Filed: 08/12/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 12, 2022
No. 21-60665 Lyle W. Cayce
Summary Calendar Clerk
Carlos Lema Nogales,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A092 961 344
Before Smith, Dennis, and Southwick, Circuit Judges.
Per Curiam:*
Carlos Lema Nogales, a native and citizen of Ecuador, petitions for
review of a decision of the Board of Immigration Appeals (BIA) dismissing
his appeal from a decision of an Immigration Judge (IJ) denying his
application for relief under the Convention Against Torture (CAT). Because
*
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opinion should not be published and is not precedent except under the limited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. 21-60665
Lema Nogales’s claim concerning his legal mail was not presented to the
BIA, it is unexhausted, and we lack jurisdiction to consider it. See Roy v.
Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004); see also Martinez-Guevara v.
Garland, 27 F.4th 353, 360 (5th Cir. 2022); 8 U.S.C. § 1252(d)(1). He also
raises a claim concerning an alleged breach of confidentiality by the
Government for submitting immigration related documents to a former
prosecutor or investigator. The BIA found that this claim was not exhausted
because it was not raised before the IJ. Though he now argues he could not
have raised the issue to the IJ, Lema Nogales did not file a motion to
reconsider before the BIA raising the exhaustion issue; thus, this court lacks
jurisdiction to consider it. See Martinez-Guevara, 27 F.4th at 360. His
motion for appointed counsel is denied because he has not shown that his
case presents extraordinary circumstances. See Ulmer v. Chancellor, 691 F.2d
209, 212 (5th Cir. 1982).
The BIA’s adverse credibility determination is supported by “specific
and cogent reasons derived from the record,” see Zhang v. Gonzales, 432 F.3d
339, 344 (5th Cir. 2005), and consideration of the record as a whole does not
show that “no reasonable fact-finder” could make such a determination, see
Singh v. Sessions, 880 F.3d 220, 225 (5th Cir. 2018) (internal quotation marks
and citation omitted); see also id. at 224. In light of the adverse credibility
determination, there is no evidence to support Lema Nogales’s core
assertion that he will be tortured if returned to Ecuador. Additionally, he
cites “no independent, non-testimonial evidence,” see Arulnanthy v.
Garland, 17 F.4th 586, 598 (5th Cir. 2021), showing it is more likely than not
that he will be tortured with governmental acquiescence if repatriated, see
Ramirez-Mejia v. Lynch, 794 F.3d 485, 493 (5th Cir. 2015).
His claim of judicial bias fails because he has not shown that the IJ held
such a bias against him that impartiality was impossible. See Wang v. Holder,
569 F.3d 531, 540-41 (5th Cir. 2009). His claims challenging the admission
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No. 21-60665
of certain evidence fails because the disputed documents were probative and
because their admission was not fundamentally unfair. See Bouchiki v. Holder,
676 F.3d 173, 179 (5th Cir. 2012). Insofar as he contends that the IJ failed to
assign the proper weight to the testimony of one witness, we decline this
invitation to reweigh the evidence. See Mirza v. Garland, 996 F.3d 747, 753
(5th Cir. 2021). The petition for review is DENIED in part and
DISMISSED in part. The motion for appointment of counsel is
DENIED.
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