Abushagif v. Garland, No. 19-60807 (5th Cir. 2022)

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Justia Opinion Summary

In a previous opinion dated September 21, 2021, the Fifth Circuit issued an opinion in this immigration case agreeing with Petitioner that the Board of Immigration Appeals ("BIA") "abused its discretion by entirely failing to address his CAT claim." In that opinion the court noted that a claim seeking CAT relief "is separate from . . . claims for asylum and withholding of removal and should receive separate analytical attention.” Thus, the court remanded the case to the BIA to address Petitioner's claim for relief under the Convention Against Torture ("CAT").

On remand, the BIA determined that Petitioner failed to meet his burden to establish a prima facie case for CAT relief because Petitioner did not provide sufficient evidence to corroborate his alleged conversion to Christianity or his bisexuality, which bears on whether Petitioner has a clear probability of being tortured if he returns to Libya.

Finding no error, the Fifth Circuit affirmed the denial of Petitioner's petition for review.

This opinion or order relates to an opinion or order originally issued on September 24, 2021.

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Case: 19-60807 Document: 00516366493 Page: 1 Date Filed: 06/22/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit No. 19-60807 FILED June 22, 2022 Lyle W. Cayce Clerk Muntaser B. Abubaker Abushagif, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals No. A 200 910 227 Before Smith, Higginson, and Engelhardt, Circuit Judges. Per Curiam: In our previous opinion, Abushagif v. Garland, 15 F.4th 323 (5th Cir. 2021), we decided every issue but one. We agreed with Abushagif that the BIA had abused its discretion by entirely failing to address his CAT claim. On that point, he is correct. A CAT “claim is separate from . . . claims for asylum and withholding of removal and should receive separate analytical attention.” Efe v. Ashcroft, 293 F.3d 899, 906–07 (5th Cir. 2002). Moreover, the BIA must not leave asserted CAT claims unaddressed. See Eduard v. Ashcroft, 379 F.3d 182, 196 (5th Cir. 2004). Id. at 335. We therefore “remand[ed] for the limited purpose of the Board’s addressing Abushagif’s CAT claim.” Id. Case: 19-60807 Document: 00516366493 Page: 2 Date Filed: 06/22/2022 No. 19-60807 The BIA did as directed. On March 4, 2022, it announced dismissal of the appeal of the immigration judge’s order. The Board reasoned that the “motion to reopen to seek protection under the CAT fails for the same reasons that his motion to reopen for asylum and withholding of removal failed. He did not meet his burden to establish his prima facie eligibility for relief.” More specifically, the BIA noted, inter alia, that Abushagif had not provided sufficient evidence to corroborate his alleged conversion to Christianity or his bisexuality. The Board also concluded that the motion to reopen “lacks veracity” shown by “documentary inconsistencies,” which “are detrimental because they bear on whether the respondent has a clear probability of being tortured if he returns to Libya.” Because there is no error, the petition for review is DENIED. 2
Primary Holding

The Fifth Circuit denied Petitioner's petition for review pertaining to the Board of Immigration Appeals' decision not to reopen his case to determine if he was eligible for relief under the Convention Against Torture.


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