# United States Court of Appeals

f or the Fifth Circuit

No. 22

- 60031 Summary Calendar

Haider Ali,

Petitioner ,

versus

Merrick Garland, U.S. Attorney General , Respondent

.

Petition for Review of an Order of the Board of Immigration Appeals Agency No. A216 711 653

Before Smith, Dennis, and Southwick, Circuit Judges

. Per Curiam : *
Haider Ali, a native and citizen of Pakistan, petitions for review of a decision of the Board of Immigration Appels (BIA) denying his motion to reopen removal proceedings on the basis of changed country conditions in
Pakistan . Ali argues that the BIA erred in denying his motion to reopen based

* Pursuant to 5th Cir cuit R ule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir cuit R ule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED November 22, 2022
Lyle W. Cayce Clerk Case: 22-60031 Document: 00516554456 Page: 1 Date Filed: 11/22/2022No. 22

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2 on the finding that he had failed to show , for his asylum and withholding of removal claims, that the Pakistani government was unable and unwilling to control the Taliban. Additionally, he argues that the BIA engaged in impermissible factfinding in violation of 8 C.F.R. § 1003.1(d)(3)(iv)(A) when
it found he had failed to show that it would be unreasonable for him to
relocate within Pakistan to avoid the Taliban.
This court reviews the denial of a motion to reopen under “ a highly
deferential abuse

- of

- discretion standard, regardless of the basis of the alien’s request for relief.” Gomez

- Palacios v. Holder , 560 F.3d 354, 358 (5th Cir. 2009). The BIA “abuses its discretion when it issues a decision that is capricious, irratio nal, utterly without foundation in the evidence, based on legally erroneous interpretations of statutes or regulations, or based on unexplained departures from regulations or established policies.” Barrios

Cantarero v. Holder , 772 F.3d 1019, 1021 (5th Cir . 2014).
The BIA’s factual findings are reviewed for substantial evidence ; its rulings of law are reviewed de novo

. Gomez

- Palacios , 560 F.3d at 358 . Under the substantial evidence standard, “this court may not overturn the BIA’s factual findings unless t he evidence compels a contrary conclusion.” Id

. To qualify for asylum or withholding of removal, an applicant must show persecution “by the government or forces that a government is unable or unwilling to control.” Tesfamichael v. Gonzales , 469 F.3d 109, 113 (5th Cir. 2006); see Majd v. Gonzales , 446 F.3d 590, 595 (5th Cir. 2006). Ali argues that the BIA’s finding that he failed to show that the Pakistani government was unable or unwilling to protect him from the Taliban is not supported by
substantial e vidence. He relies on the affidavit of Dr. Charles H. Kennedy, which he attached to his motion to reopen. According to Dr. Kennedy, who purports to be an expert on country conditions in Pakistan , “Pakistani institutions seem to be unwilling or unable to protect Haider Ali from the Taliban or related groups.” Even Dr. Kennedy acknowledges, however, that Case: 22-60031 Document: 00516554456 Page: 2 Date Filed: 11/22/2022No. 22

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3 policies instituted by the Pakistani government have “slowed the rate of terrorist violence,” even though some areas remain “quite dangerous.”

A li also su ggests the police response to his brother’s shooting shows that the Pakistani government is unable or unwilling to control the Taliban.
As the BIA sta ted, though , the police sought out Ali’s brother at the hospital, made an official report, and referred t he case for investigation.
Ultimately, Ali has failed to demonstrate a “complete helplessness” by the Pakistani government to protect citizens targeted by the Taliban.
Shehu v. Gonzalez , 443 F.3d 435, 437 (5th Cir. 2006) (internal quotation marks and citation omitted). As Ali’s own expert acknowledges, the Pakistani government has taken steps to combat terrorist violence, which is
on the decline. Accordingly, there is substantial evidence supporting the BIA’s finding th at Ali failed to establish that the Pakistani government was unable or unwilling to control the Taliban because the record evidence does not compel a contrary conclusion. See Gomez

- Palacios , 560 F.3d at 358.
Finally, Ali argues the BIA engaged in impermis sible factfinding in
violation of Section 1003.1(d)(3)(iv)(A) when it found he failed to show it
would be unreasonable for him to relocate within Pakistan to avoid the
Taliban. A claim that the BIA “engaged in impermissible factfinding” must
be raised in a motion to reconsider , else it presents a “wholly new ground for relief that arises only as a consequence of” the BIA’s error. Martinez

Guevara v. Garland , 27 F.4th 353, 360 (5th Cir. 2022) (internal quotation marks, citation s , and emphasis omitted). Be cause Ali failed to raise his claim of impermissible factfinding in a motion to reconsider, it is unexhausted, and this court lacks jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1) ; Roy v. Ashcroft , 389 F.3d 132, 137 (5th Cir. 2004)

.
T he petition fo r review is DENIED in part and DISMISSED in
part. Case: 22-60031 Document: 00516554456 Page: 3 Date Filed: 11/22/2022