United States Court of Appeals 

for the Fifth Circuit 

No. 21-60552 

Summary Calendar 

Elibariki S. Gau, 

Petitioner, 

versus

Merrick Garland, U.S. Attorney General, 

Respondent. 

Petition for Review of an Order of the 

Board of Immigration Appeals 

Agency No. A079 012 012 

Before Davis, Duncan, and Engelhardt, Circuit Judges.

Per Curiam:*

Elibariki S. Gau, a native and citizen of Tanzania, has filed a petition 

for review of a decision of the Board of Immigration Appeals (BIA) denying 

his motion to remand. Gau argues that the BIA erred in refusing to remand 

his case to the immigration judge (IJ) to consider evidence of his son Ethan’s 

*

 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opinion should not be published and is not precedent except under the limited 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. 

United States Court of Appeals 

Fifth Circuit 

FILED 

September 30, 2022 

Lyle W. Cayce 

Clerk 

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No. 21-60552 

2 

autism diagnosis. He argues that, contrary to the BIA’s decision, evidence 

of Ethan’s autism diagnosis was new and previously unavailable evidence 

relevant to his eligibility for cancellation of removal. 

A motion that asks the BIA to remand a case to the IJ based on newly 

discovered evidence is subject to the same substantive requirements as a 

motion to reopen. See Wang v. Ashcroft, 260 F.3d 448, 452 & n.2 (5th Cir. 

2001). When evaluating a denial of a motion to reopen, this court reviews 

the BIA’s order but will also consider the IJ’s underlying decision to the 

extent that it influenced the BIA’s opinion. Nunez v. Sessions, 882 F.3d 499, 

505 (5th Cir. 2018). A denial of a motion to reopen is reviewed under “a 

highly deferential abuse-of-discretion standard.” Id. 

Gau disagrees with the BIA’s determination that the evidence of 

Ethan’s autism was not new evidence that was previously unavailable. He 

points out that at the time of the IJ’s decision, Ethan had only been diagnosed 

with Attention Deficit Hyperactivity Disorder (ADHD), not autism. While 

it is true that the results of Ethan’s second evaluation with a psychologist and 

official autism diagnosis were not before the IJ when he issued his decision, 

Gau has not shown that the IJ was unaware of facts relevant to his hardship 

claim. 

At the hearing before the IJ, Gau testified that a doctor had diagnosed 

Ethan with ADHD and “possibly” autism. The IJ also considered the report 

from the Spring Branch Community Health Center, indicating that Ethan 

demonstrated “some features of autism.” Though Ethan’s second 

evaluation did not exist at the time of the hearing before the IJ, Gau cannot 

show that the IJ was unaware of Ethan’s suspected autism. 

Furthermore, other than stating that the second evaluation did not 

exist at the time of the IJ’s decision, Gau does not show that the diagnosis 

was unavailable. As the BIA observed, Gau had been notified that Ethan 

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3 

exhibited signs of autism as early as 2017, and Gau had not explained why the 

second evaluation could not have been completed prior to the hearing before 

the IJ. Gau has therefore failed to show that the BIA abused its discretion in 

denying his motion to remand based on his failure to present new, previously 

unavailable evidence in support. See Nunez, 882 F.3d at 505. 

Gau has likewise failed to show that the BIA abused its discretion in 

denying the motion to remand because Gau had failed to show that the 

evidence of Ethan’s official autism diagnosis was likely to change the 

outcome of the case. As the Government points out, Gau references this 

basis for denying his motion in a single sentence, but he does not otherwise 

dispute the BIA’s conclusion. He has therefore abandoned any such 

challenge. See United States v. McRae, 795 F.3d 471, 479 (5th Cir. 2015). 

The petition for review is DENIED. 

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