United States Court of Appeals

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opinion should not be published and is not precedent except under the limited 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

November 22, 2022

Lyle W. Cayce

Clerk

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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, irrational, 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.” BarriosCantarero 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 the 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 evidence. 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 

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policies instituted by the Pakistani government have “slowed the rate of 

terrorist violence,” even though some areas remain “quite dangerous.”

Ali also suggests the police response to his brother’s shooting shows 

that the Pakistani government is unable or unwilling to control the Taliban. 

As the BIA stated, though, the police sought out Ali’s brother at the hospital, 

made an official report, and referred the 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 that 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 impermissible 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. MartinezGuevara v. Garland, 27 F.4th 353, 360 (5th Cir. 2022) (internal quotation 

marks, citations, and emphasis omitted). Because 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).

The petition for review is DENIED in part and DISMISSED in 

part.

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