Unreported / Non-Citable
Background
Gilbert Ayuk Agbor, a native and citizen of Cameroon, sought asylum, withholding of removal, and protection under the Convention Against Torture. He had left Cameroon in 2007 and lived in South Africa for 17 years.
An immigration judge denied relief, and the Board of Immigration Appeals upheld that decision. Agbor petitioned the Fifth Circuit for review, challenging the withholding determination, the application of the Circumvention of Lawful Pathways rule to his asylum claim, the denial of asylum on the merits, and the denial of CAT protection.
The Court’s Holding
The Fifth Circuit denied the petition. On withholding of removal, the court held that Agbor had not shown that the evidence compelled a finding of eligibility or defeated the agency’s conclusion that the government rebutted the presumption of future persecution. The court could not consider evidence introduced for the first time on appeal, and Agbor’s argument that internal relocation would be unreasonable was not properly before it.
The court held that Agbor failed to exhaust his challenge to the Circumvention of Lawful Pathways rule because he had not raised it before the immigration judge or the BIA and the government invoked exhaustion. Although the rule had been vacated by the time of the BIA’s decision, Agbor forfeited any argument that the BIA erred by relying on it or should have addressed asylum eligibility on the merits. The court also held that the evidence did not compel a conclusion that he qualified for CAT relief.
Key Takeaways
- A petitioner seeking withholding of removal must show that the record compels a conclusion contrary to the agency’s decision.
- A challenge not presented to the immigration judge or BIA is unexhausted when the government properly raises exhaustion.
- Arguments concerning the BIA’s reliance on a vacated asylum rule may be forfeited if they are not presented to the reviewing court.
Why It Matters
The decision illustrates how exhaustion, forfeiture, and the deferential substantial-evidence standard can independently prevent judicial relief in immigration cases. Even though the asylum rule applied by the immigration judge had been vacated before the BIA ruled, the Fifth Circuit did not reach a developed challenge to that issue because Agbor had not preserved the relevant arguments.
The opinion also reinforces that appellate review is confined to the administrative record and that a petitioner must do more than identify evidence supporting relief: the evidence must compel rejection of the agency’s findings.