United States Court of Appeals

for the Fifth Circuit

No. 21-60893

Summary Calendar

Nanifatu Osman; Saratu Kadir, 

Petitioners,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

Agency No. A216 856 619

Agency No. A216 856 620

Before Jolly, Jones, and Ho, Circuit Judges.

Per Curiam:*

Nanifatu Osman and Saratu Kadri,1 a lesbian couple who are natives 

and citizens of Ghana, petition for review of the dismissal by the Board of 

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opinion should not be published and is not precedent except under the limited 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

1 Although the case caption identifies the co-petitioner’s surname as “Kadir,” the 

proper spelling of her name is used herein.

United States Court of Appeals

Fifth Circuit

FILED

December 1, 2022

Lyle W. Cayce

Clerk

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Immigration Appeals (BIA) of their appeal from the denial of their joint 

applications for asylum, withholding of removal (WOR), and protection 

under the Convention Against Torture (CAT). The petitioners have also 

moved for a stay of removal, and the parties have filed a joint motion to 

remand the case to the BIA.

In their joint motion, the parties request a remand of the asylum and 

WOR claims on the ground that the BIA procedurally erred by failing to give 

meaningful consideration to the evidence supporting the petitioners’ claims. 

See Cabrera v. Sessions, 890 F.3d 153, 162 (5th Cir. 2018) (stating that “[t]he 

BIA’s decision must reflect a meaningful consideration of all the relevant 

evidence supporting an asylum seeker’s claims”). To the extent that the 

parties raise new procedural errors arising solely out of the BIA’s decision, 

their arguments are unexhausted because they were not raised in a motion for 

reconsideration. See Martinez-Guevara v. Garland, 27 F.4th 353, 360 (5th 

Cir. 2022). On the other hand, to the extent that the parties assert that the

immigration judge (IJ) also made the same procedural errors, the parties 

failed to exhaust the issues by raising them in their appeal to the BIA. See id.

Accordingly, we lack jurisdiction to review the claims raised in the joint 

remand motion. See Avelar-Oliva v. Barr, 954 F.3d 757, 766 (5th Cir. 2020). 

With respect to their substantive challenges to the denial of asylum 

and WOR, the petitioners first assert that the agency erred in finding that 

they failed to show past persecution in Ghana. See Zhang v. Gonzales, 432 

F.3d 339, 344 (5th Cir. 2005); Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 

2002). For the first time in this review proceeding, the petitioners challenge 

the IJ’s no-persecution finding on four specific grounds based primarily on 

extra-circuit jurisprudence. Because these four particular arguments were 

not fairly presented in the petitioners’ counseled appeal to the BIA, see Omari 

v. Holder, 562 F.3d 314, 321 (5th Cir. 2009), the issues are not exhausted, and 

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this court lacks jurisdiction to consider them. See Martinez-Guevara, 27 

F.4th at 360; Avelar-Oliva, 954 F.3d at 766. 

The petitioners’ sole exhausted argument challenging the agency’s 

past-persecution ruling is their generalized contention they suffered 

persecution based on the record evidence that Kadri was detained in 2017 for 

a week without food by her father, who threatened and injured her with a 

knife; Osman was threatened with death by her father; and the petitioners 

were sought outside a hotel in 2019 by an armed group that included their 

fathers. However, the petitioners have failed to prove that the evidence 

regarding their treatment in Ghana not only supports a past-persecution 

finding but compels one. See Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 

2006); see, e.g., Gjetani v. Barr, 968 F.3d 393, 395-96, 399 (5th Cir. 2020) 

(upholding an agency decision that an alien had not been persecuted where 

he was threatened with death three times within two weeks and was once 

assaulted with a belt and a sharp metal object, resulting in knee and toe 

injuries requiring stitches). 

Next, the petitioners challenge the agency’s determination that they 

do not have a well-founded fear of persecution in Ghana. See Zhang, 432 F.3d 

at 344; Efe, 293 F.3d at 906. With respect to the agency’s underlying factual 

findings, including that Ghana’s criminal law against same-sex conduct is 

rarely enforced and does not apply to female-only relationships and that 

Ghanaian police have resources for domestic violence victims and same-sex 

couples, the petitioners have failed to show that the record evidence compels 

their rejection.

2 See Chen, 470 F.3d at 1134. The petitioners have likewise 

2 The petitioners’ challenge to the reliability of a Ghana Police Service letter

included in the country conditions evidence is raised for the first time in this review 

proceeding; accordingly, that argumentis unexhausted, and we lack jurisdiction to consider 

it. See Martinez-Guevara, 27 F.4th at 360; Avelar-Oliva, 954 F.3d at 766. 

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failed to establish that the BIA legally erred in concluding that their fear of

persecution is not objectively reasonable. See Eduard v. Ashcroft, 379 F.3d 

182, 191 (5th Cir. 2004); see also Matter of Z-Z-O-, 26 I. & N. Dec. 586, 590–

91 (BIA 2015). Ultimately, then, the agency’s denial of the petitioners’

claims for asylum and WOR is supported by substantial evidence. See Chen, 

470 F.3d at 1134. 

Finally, while the petitioners assert that they are eligible for protection 

under the CAT, they have wholly failed to address the BIA’s determination 

that they waived any challenge to the IJ’s denial of their CAT claim by 

neglecting to assert it in their appeal to the BIA. By failing to address the 

basis for the BIA’s decision, the petitioners have effectively abandoned any 

challenge to the BIA’s dismissal of their appeal from the denial of their CAT 

claim. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003); see also 

Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 

1987).

In light of the foregoing, the petitioners’ motion to stay removal is 

DENIED, the parties’ joint motion to remand is DENIED, and the 

petition for review is DISMISSED IN PART and DENIED IN PART. 

 

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