United States Court of Appeals

for the Fifth Circuit

No. 21-60665

Summary Calendar

Carlos Lema Nogales, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

Agency No. A092 961 344

Before Smith, Dennis, and Southwick, Circuit Judges.

Per Curiam:*

Carlos Lema Nogales, a native and citizen of Ecuador, petitions for 

review of a decision of the Board of Immigration Appeals (BIA) dismissing 

his appeal from a decision of an Immigration Judge (IJ) denying his 

application for relief under the Convention Against Torture (CAT). Because 

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opinion should not be published and is not precedent except under the limited 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

August 12, 2022

Lyle W. Cayce

Clerk

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Lema Nogales’s claim concerning his legal mail was not presented to the 

BIA, it is unexhausted, and we lack jurisdiction to consider it. See Roy v. 

Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004); see also Martinez-Guevara v. 

Garland, 27 F.4th 353, 360 (5th Cir. 2022); 8 U.S.C. § 1252(d)(1). He also 

raises a claim concerning an alleged breach of confidentiality by the 

Government for submitting immigration related documents to a former 

prosecutor or investigator. The BIA found that this claim was not exhausted 

because it was not raised before the IJ. Though he now argues he could not 

have raised the issue to the IJ, Lema Nogales did not file a motion to 

reconsider before the BIA raising the exhaustion issue; thus, this court lacks 

jurisdiction to consider it. See Martinez-Guevara, 27 F.4th at 360. His 

motion for appointed counsel is denied because he has not shown that his 

case presents extraordinary circumstances. See Ulmer v. Chancellor, 691 F.2d 

209, 212 (5th Cir. 1982).

The BIA’s adverse credibility determination is supported by “specific 

and cogent reasons derived from the record,” see Zhang v. Gonzales, 432 F.3d 

339, 344 (5th Cir. 2005), and consideration of the record as a whole does not 

show that “no reasonable fact-finder” could make such a determination, see 

Singh v. Sessions, 880 F.3d 220, 225 (5th Cir. 2018) (internal quotation marks 

and citation omitted); see also id. at 224. In light of the adverse credibility 

determination, there is no evidence to support Lema Nogales’s core 

assertion that he will be tortured if returned to Ecuador. Additionally, he

cites “no independent, non-testimonial evidence,” see Arulnanthy v. 

Garland, 17 F.4th 586, 598 (5th Cir. 2021), showing it is more likely than not 

that he will be tortured with governmental acquiescence if repatriated, see 

Ramirez-Mejia v. Lynch, 794 F.3d 485, 493 (5th Cir. 2015).

His claim of judicial bias fails because he has not shown that the IJ held 

such a bias against him that impartiality was impossible. See Wang v. Holder, 

569 F.3d 531, 540-41 (5th Cir. 2009). His claims challenging the admission 

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of certain evidence fails because the disputed documents were probative and 

because their admission was not fundamentally unfair. See Bouchiki v. Holder, 

676 F.3d 173, 179 (5th Cir. 2012). Insofar as he contends that the IJ failed to 

assign the proper weight to the testimony of one witness, we decline this 

invitation to reweigh the evidence. See Mirza v. Garland, 996 F.3d 747, 753 

(5th Cir. 2021). The petition for review is DENIED in part and 

DISMISSED in part. The motion for appointment of counsel is 

DENIED.

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