Case: 20-60743 Document: 00516335907 Page: 1 Date Filed: 05/27/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 20-60743 May 27, 2022
Summary Calendar
Lyle W. Cayce
Clerk
Yannick Alpha Ndelela,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A203 593 666
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Yannick Alpha Ndelela, a native and citizen of the Democratic
Republic of the Congo (DRC), has petitioned for review of a decision of the
Board of Immigration Appeals (BIA) dismissing his appeal from a decision of
the immigration judge (IJ) concluding that he was ineligible for asylum,
*
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opinion should not be published and is not precedent except under the limited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. 20-60743
withholding of removal, and relief under the Convention Against Torture
(CAT). For the reasons set forth below, Ndelela’s petition for review is
DENIED IN PART and DISMISSED IN PART for lack of jurisdiction.
To the extent that Ndelela argues that the BIA erred procedurally by
ignoring evidence, his claim is unexhausted. See Martinez-Guevara
v. Garland, 27 F. 4th 353, 360-61 & n.9 (5th Cir. 2022). His contention that
that the IJ and the BIA erred by failing to address a claim that he had
established a well-founded fear of future persecution based on a pattern or
practice of persecution of a group of persons similarly situated to him is also
unexhausted; he did not fairly present such a claim to the BIA. See Omari
v. Holder, 562 F.3d 314, 318-19 (5th Cir. 2009). We lack jurisdiction to
consider these issues. See id.
Ndelela argues that the evidence shows that his political opinion was
at least one central reason for his persecution. An asylum applicant has the
burden to, inter alia, establish a nexus between the alleged persecution and
one of the five statutory grounds for asylum. Tamara-Gomez v. Gonzales, 447
F.3d 343, 349 (5th Cir. 2006).
As we have held, conduct driven by purely personal or criminal
motives does not constitute persecution on account of a protected ground.
Thuri v. Ashcroft, 380 F.3d 788, 792-93 (5th Cir. 2004). Although Ndelela
argues strenuously that the death threat he received and the actions taken
against him and his family members were related to his participation, as an
attorney, in a land dispute involving two well-connected generals, he has not
demonstrated that a reasonable factfinder would be compelled to conclude
his political opinion was one central reason for his persecution. See
Changsheng Du v. Barr, 975 F.3d 444, 448 (5th Cir. 2020); Sharma v. Holder,
729 F.3d 407, 413; Thuri, 380 F.3d at 792-93. His related contention that the
agency erred by failing to conduct a mixed-motives analysis fails; although a
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No. 20-60743
persecutor’s mixed motive might support a claim that an individual was
persecuted on account of a protected ground, here substantial evidence
supports the agency’s determination that Ndelela “failed to establish
persecution to any extent on account of or motivated by” his political
opinion. Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 350 (5th Cir. 2002).
Ndelela has also failed to establish the requisite nexus with respect to
his claim of a well-founded fear of future persecution. See Pena Oseguera
v. Barr, 936 F.3d 249, 250 (5th Cir. 2019), as revised (Oct. 15, 2019). Because
Ndelela fails to show that he is entitled to relief in the form of asylum, he
cannot establish entitlement to withholding of removal, which requires a
higher burden of proof. See Dayo v. Holder, 687 F.3d 653, 658-59 (5th Cir.
2012). It is unnecessary to consider Ndelela’s remaining arguments as to the
denial of these claims. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976).
Finally, Ndelela challenges the denial of his claim for protection under
the CAT. To obtain relief under the CAT, an applicant must show “that it
is more likely than not that he or she would be tortured if removed to the
proposed country of removal.” Efe v. Ashcroft, 293 F.3d 899, 907 (5th Cir.
2002) (internal quotation marks and citation omitted).
As the IJ determined, there is no evidence that Ndelela has been the
victim of past torture, and the willingness of the police to take Ndelela’s
report following the attempted kidnaping incident lends support to the
determination that public officials would not acquiesce in his torture. See
Martinez-Lopez v. Barr, 943 F.3d 766, 772 (5th Cir. 2019); Gonzales-Veliz
v. Barr, 938 F.3d 219, 225 (5th Cir. 2019). Because substantial evidence
supports the denial of the CAT claim, we will not disturb the agency’s
decision. See Martinez-Lopez, 943 F.3d at 772.
PETITION FOR REVIEW DENIED IN PART AND
DISMISSED IN PART.
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