* Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 3, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-60741

Summary Calendar

AIMAN NAZIH DARWICH,

Petitioner,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

Respondent.

--------------------

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A78 310 118

--------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Aiman Nazih Darwich petitions for review of the final order

of the Board of Immigration Appeals (BIA) that affirmed the

denial of his applications for asylum, withholding of removal,

and relief under the Convention Against Torture (CAT), and for

voluntary departure. Darwich’s second motion to stay his

deportation is denied.

Darwich argues that the BIA erred in upholding the

immigration judge’s (IJ) decision finding him not credible and

denying his application for asylum. Darwich makes no argument
No. 05-60741

-2-

challenging the IJ’s determination that even assuming he was

credible, he was not entitled to asylum as a matter of

discretion. Judicial review of a final removal order is

available only if the applicant has exhausted all administrative

remedies as of right. 8 U.S.C. § 1252(d)(1). Failure to exhaust

administrative remedies creates a jurisdictional bar to this

court’s consideration of the issue. Wang v. Ashcroft, 260 F.3d

448, 452 (5th Cir. 2001). “An alien fails to exhaust his

administrative remedies with respect to an issue when the issue

is not raised in the first instance before the BIA-either on

direct appeal or in a motion to reopen.” Id. at 452-53. The

exhaustion requirement is statutorily mandated, jurisdictional,

and nonwaivable. Goonsuwan v. Ashcroft, 252 F.3d 383, 387 (5th

Cir. 2001).

To prevail in this appeal, Darwich must show that the BIA

erred in affirming 1) the IJ’s determination regarding statutory

eligibility for asylum and 2) the determination that he was not

entitled to asylum as a matter of discretion. See Faddoul v.

I.N.S., 37 F.3d 185, 188 (5th Cir. 1994); Morado-Bassil v.

Ashcroft, 119 F. App’x 682, 684 (5th Cir. 2005). Because Darwich

did not challenge the discretionary denial of asylum in his

appeal to the BIA, he has not exhausted this issue, and this

court lacks jurisdiction to consider the denial of asylum as a

matter of discretion. See Morado-Bassil, 119 F. App’x at 684. 
No. 05-60741

-3-

Consequently, Darwich’s argument concerning his credibility as it

relates to his statutory eligibility for asylum is moot. Id.

Darwich argues that he has shown that if he returned to

Lebanon, there is a clear probability that he would face

persecution as a result of his resistance to becoming a member of

Hezbollah. Congress has proscribed the deportation of an alien

whose life or freedom would be threatened on account of race,

religion, nationality, or membership in a social group. 8 U.S.C. 

§ 1231(b)(3)(A); Jukic v. I.N.S., 40 F.3d 747, 749-50 (5th Cir.

1994). A petitioner "must demonstrate a clear probability of

persecution on one of the enumerated grounds." Jukic, 40 F.3d at

749-50.

In rejecting Darwich’s claim for asylum, the IJ found that,

even without an adverse credibility finding, Darwich’s claim

would still fail because he had failed to present evidence that

the alleged persecution was on account of one of the statutory

bases, in particular, political opinion. Such a finding is fatal

to Darwich’s claim for withholding as well. Darwich does not

challenge this finding on appeal. By failing to brief this

issue, Darwich has waived or abandoned it. See Soadjede v.

Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003); Calderon-Ontiveros

v. I.N.S., 809 F.2d 1050, 1052 (5th Cir. 1986).

Darwich also failed to raise and brief the issue of CAT

relief in his appeal to the BIA. Darwich has not exhausted this
No. 05-60741

-4-

issue, and this court therefore lacks jurisdiction to review it. 

See Wang, 260 F.3d at 452-53.

Darwich argues that the IJ abused his discretion in denying

his application for voluntary departure. This court lacks

jurisdiction to review a claim that the BIA erred in denying a

request for the discretionary relief of voluntary departure. 

8 U.S.C. § 1252(a)(2)(B); Eyoum v. I.N.S., 125 F.3d 889, 891 (5th

Cir. 1997).

PETITION FOR REVIEW DENIED; MOTION TO STAY DENIED.