NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MUSSIE GEBREWELDI, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 20-71009 

Agency No. A215-816-451 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted April 12, 2021

Seattle, Washington

Before: HAWKINS and CALLAHAN, Circuit Judges, and FITZWATER,**

District Judge.

Mussie Gebreweldi, a native and citizen of Eritrea, petitions for review of the 

decision of the Board of Immigration Appeals (“BIA”) dismissing an appeal of an 

immigration judge’s denial of Gebreweldi’s motion to reopen his removal 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Sidney A. Fitzwater, United States District Judge for 

the Northern District of Texas, sitting by designation.

FILED

MAY 4 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 20-71009 

proceedings. We have jurisdiction under 8 U.S.C. § 1252, and we dismiss in part 

and deny in part the petition for review.

Gebreweldi contends for the first time that, as an alien seeking entry into the 

United States for the purpose of applying for asylum, he is not inadmissible under 8 

U.S.C. § 1182(a)(7)(A)(i)(I) as charged. Generally, we lack jurisdiction over legal 

claims not presented in the administrative proceedings below. Alvarado v. Holder, 

759 F.3d 1121, 1127 (9th Cir. 2014). Although he concedes that he failed to raise 

this challenge before the IJ or BIA either in his original removal proceedings or in 

his motion to reopen, Gebreweldi argues that he is exempt from the normal 

exhaustion requirement because exhaustion would have been futile. See id. at 1129 

(explaining that exhaustion is not required “if the BIA—bound by our prior 

precedent—would be precluded from granting relief”). Contrary to Gebreweldi’s 

contention, our decision in Minto v. Sessions, 854 F.3d 619 (9th Cir. 2017), 

overruled by Torres v. Barr, 976 F.3d 918 (9th Cir. 2020) (en banc), did not address 

the specific issue he now raises or “entirely foreclose[] [the issue] such that the 

agency [could not] give it unencumbered consideration.” Alvarado, 759 F.3d at 

1128. Accordingly, we lack jurisdiction to consider Gebreweldi’s challenge to his 

inadmissibility charge. See id. at 1127. 

Gebreweldi next contends that the BIA erred in its conclusion that he failed 

to demonstrate changed country conditions to support his motion to reopen. The 
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BIA did not abuse its discretion. See Toufighi v. Mukasey, 538 F.3d 988, 992 (9th 

Cir. 2008). The BIA reasonably concluded that the evidence submitted in support 

of Gebreweldi’s motion indicated that the conditions in Eritrea were largely 

unchanged and that Gebreweldi failed to demonstrate that he was similarly situated 

to the individuals discussed in the reports and articles. See Najmabadi v. Holder, 

597 F.3d 983, 989–90 (9th Cir. 2010).

The BIA also did not err by declining to address Gebreweldi’s challenge to 

the adverse credibility determination that the IJ rendered in connection with 

Gebreweldi’s applications for relief from removal. Gebreweldi did not challenge 

the adverse credibility determination by way of a direct appeal of the IJ’s denial of 

his applications for relief from removal, nor did he challenge it in his motion to 

reopen. Instead, he raised this challenge for the first time in his appeal of the IJ’s 

denial of his motion to reopen, and the BIA acted within its discretion by declining 

to address the merits of the argument. See Honcharov v. Barr, 924 F.3d 1293, 1296–

97 (9th Cir. 2019).

Gebreweldi’s corrected motion to stay removal [Docket Entry #15] is denied 

as moot.

PETITION DISMISSED, in part; DENIED, in part.