United States Court of Appeals

for the Fifth Circuit

No. 19-60055

Summary Calendar

Ilyas Muradi, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A079 856 821

Before Davis, Jones, and Elrod, Circuit Judges.

Per Curiam:*

Ilyas Muradi, a native and citizen of Afghanistan, has filed two 

petitions for review; his initial petition challenges a decision by the Board of 

Immigration Appeals (BIA) dismissing his appeal of the denial by the 

immigration judge (IJ) of his application for deferral of removal under the 

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opinion should not be published and is not precedent except under the limited 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

October 5, 2021

Lyle W. Cayce

Clerk

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Convention Against Torture (CAT), and his supplemental petition 

challenges the BIA’s denial of his motion to reopen his removal proceedings

as untimely, or alternatively, on the merits. Our jurisdiction to review final 

orders of removal “encompasses review of decisions refusing to reopen or 

reconsider such orders,” whether based on untimeliness or other grounds. 

Mata v. Lynch, 576 U.S. 143, 147-48 (quote at 147) (2015); see 8 U.S.C. 

§ 1252(b)(6) (mandating consolidation of the review of a motion to reopen or 

reconsider with the review of the underlying removal order).

In his first petition for review, Muradi challenges the BIA’s denial of 

his request for deferral of removal under the CAT, which allows relief to an 

alien who demonstrates a likelihood of torture in his home country by or with 

the “acquiescence of[] a public official [or other person] acting in an official 

capacity.” 8 C.F.R. § 1208.18(a)(1). Specifically, Muradi argues that: (1) the 

IJ and the BIA employed the wrong legal standard for determining whether 

there was acquiescence to the torture; (2) the BIA reviewed the legal 

conclusion regarding acquiescence under the wrong legal standard; and 

(3) the IJ and the BIA failed to properly assess the threat of torture and similar 

harm because they did not aggregate the threats from different entities.1

We lack jurisdiction to review Muradi’s second and third issues 

because they were not exhausted before the BIA either on direct appeal or in 

a motion to reopen or to reconsider. See Avelar-Oliva v. Barr, 954 F.3d 757, 

1 After briefing was completed in this case, the then-government of Afghanistan fell 

to the Taliban. Because the new developments in Afghanistan were not presented before 

the BIA, we cannot consider them in the present petitions for review. See 8 U.S.C. 

§ 1252(b)(4)(A); Hernandez-Ortez v. Holder, 741 F.3d 644, 647 (5th Cir. 2014). However, 

because motions to reopen based on changed country conditions are not subject to the 

normal time and numerical limitations for motions to reopen, Muradi can raise any claims 

he has based on recent developments in a new motion to reopen. See 8 C.F.R. 

§ 1003.23(b)(4)(1). We offer no opinion as to the proper disposition of such a motion.

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766 (5th Cir. 2020); Claudio v. Holder, 601 F.3d 316, 318 (5th Cir. 2010); 

Omari v. Holder, 562 F.3d 314, 318-19 (5th Cir. 2009). There is no merit to 

Muradi’s apparent contention that exhaustion is not required to the extent 

that these issues allege due process violations. See Roy v. Ashcroft, 389 F.3d 

132, 137 (5th Cir. 2004)(holding that even due process claims must have been

exhausted if the procedural errors were correctable by the BIA).

With respect to his exhausted first issue, Muradi is correct that the 

governmental-action element of a torture finding under the CAT does not 

require that the entire national government acquiesces in the torture, but 

rather that a public official or other person acting in an official capacity does 

so. See Garcia v. Holder, 756 F.3d 885, 891-92 (5th Cir. 2014). Although the 

IJ and the BIA determined that the Afghan government would not acquiesce 

to any torture by outside groups, it appears that this language was simply a 

broadly-stated version of the proper acquiescence standard. In TamaraGomez v. Gonzales, 447 F.3d 343, 351 (5th Cir. 2006), on which the BIA relied 

in denying relief, we explained that the CAT “requires ‘a public official’ or 

‘person acting in a public capacity’ to . . . ‘acquiesce’ . . . to ‘the torture,’” 

before denying relief because the “[t]he Government of Columbia” had not 

acquiesced to the allegedly torturous conduct. Given the language used in 

Tamara-Gomez, 447 F.3d at 351, Muradi has failed to show that the BIA 

applied an incorrect standard here.

In his second petition for review, Muradi asserts certain arguments 

relating to his first petition. Even assuming that these arguments are properly 

before us, they fail. While Muradi is correct that the Supreme Court recently 

ruled that we may review a criminal alien’s factual challenge to a CAT order, 

that ruling in Nasrallah v. Barr, 140 S. Ct. 1683, 1694 (2020), does not 

support Muradi’s request to remand his case to the BIA so that he can raise 

new factual challenges. And, given the exhaustion discussion above, we lack 

jurisdiction to review Muradi’s additional argument in support of his 

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unexhausted third issue from his first petition for review. See Claudio, 

601 F.3d at 318-19.

Finally, Muradi complains that the BIA should have granted his 

motion to reopen his removal proceeding because his counsel from his appeal 

to the BIA rendered ineffective assistance. However, Muradi fails to assert, 

and has thereby abandoned, any challenge to the BIA’s conclusion that his 

motion to reopen was untimely and that the filing period had not been 

equitably tolled. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).

In light of the foregoing, Muradi’s initial and supplemental petitions 

for review are DENIED.

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