United States Court of Appeals

for the Fifth Circuit

No. 18-60459

Edgar Tibakweitira, 

Petitioner,

versus

Robert M. Wilkinson, Acting U.S. Attorney General,

Respondent.

Petitions for Review of Orders of the

Board of Immigration Appeals

BIA No. A206 755 696

Before Haynes, Duncan, and Engelhardt, Circuit Judges.

Per Curiam:*

Edgar Tibakweitira, a native and citizen of Tanzania, petitions for 

review of an order issued by the Board of Immigration Appeals (“BIA”)

dismissing his appeal from the Immigration Judge’s (“IJ”) decision denying 

his application for withholding of removal and protection under the 

Convention Against Torture (“CAT”). He separately petitions for review 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opinion should not be published and is not precedent except under the limited 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.

United States Court of Appeals

Fifth Circuit

FILED

February 1, 2021

Lyle W. Cayce

Clerk

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the BIA’s order denying his motion to reconsider and reopen and denying his 

request for review of that motion by a three-member panel. We DISMISS 

IN PART and DENY IN PART the petitions for review.

I.

Tibakweitira contends that after serving one year in the Tanzanian 

military, he was recruited to the Tanzania Intelligence and Security Service 

(“TISS”), where he allegedly received training to suppress political 

opponents of the Tanzanian government through violent means. 

Tibakweitira reportedly abandoned his TISS position and fled to the United 

States on a tourist visa on June 26, 1992. He overstayed his visa and remained 

in the United States, attending college and business school, settling in 

Washington, D.C., and establishing a real estate businessthat catered heavily 

to the local Tanzanian community. On June 10, 2013, he was indicted in the 

United States District Court of Maryland based on his participation in a 

mortgage fraud scheme. On March 31, 2015, he pleaded guilty to conspiracy 

to commit wire fraud and aggravated identity theft. He was sentenced to 57 

months of imprisonment and ordered to pay nearly $2.5 million in restitution.

On June 30, 2017, the Department of Homeland Security issued 

Tibakweitira a removal order, finding that he was removable based on his 

commission of an aggravated felony (conspiracy to commit wire fraud) under 

8 U.S.C. § 1227(a)(2)(A)(iii). Tibakweitira subsequently applied for

withholding of removal and CAT protection. After a hearing, the IJ issued a 

written decision on December 22, 2017, denying his application and ordering 

his removal to Tanzania. Tibakweitira appealed to the BIA, which affirmed 

the IJ’s decision and dismissed the appeal on June 7, 2018. Tibakweitira filed 

a motion with the BIA requesting reconsideration of the dismissal of his 

appeal, reopening of his removal proceedings, and review of his motion by a 

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three-member panel. A single BIA member denied the motion on September 

6, 2018.

Tibakweitira timely petitioned for review of the BIA’s dismissal of his 

appeal and its denial of his motion. He argues that (1) the IJ and BIA erred in 

finding that his conspiracy to commit wire fraud offense was a “particularly 

serious crime” rendering him statutorily ineligible for withholding of 

removal; (2) the IJ and BIA erred in denying CAT relief; (3) the BIA erred in 

denying his motion to reopen; (4) his due process rights and the Convention 

Against Transnational Organized Crime were violated by the IJ and/or 

through his removal order; (5) the BIA erred in denying review of his motion 

to reconsider and reopen by a three-member panel.

The Government counters that we lack jurisdiction to consider the 

“particularly serious crime” finding under 8 U.S.C. § 1252(a)(2)(C), 

substantial evidence supports the denial of CAT relief, and we lack 

jurisdiction to consider the due process and Convention Against 

Transnational Organized Crime claims because they are unexhausted.

II.

We generally review only decisions of the BIA. Zhu v. Gonzales, 493 

F.3d 588, 593 (5th Cir. 2007). However, when the IJ’s ruling affects the 

BIA’s decision, as it does here, we review the decisions of both the BIA and 

the IJ. Id. Factual findings are reviewed for substantial evidence, and 

constitutional claims and questions of law are reviewed de novo. Fuentes-Pena 

v. Barr, 917 F.3d 827, 829 (5th Cir. 2019). We review the BIA’s denial of a 

motion to reopen under a highly deferential abuse-of-discretion standard. 

Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). Finally, we 

review de novo questions relating to our jurisdiction to consider challenges 

to a final order of the BIA. Solorzano-Moreno v. Mukasey, 296 F. App’x 391, 

393 (5th Cir. 2008).

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III.

A. No Jurisdiction over Factual Challenges to Removal Order

Tibakweitira challenges his final order of removal, contending that the 

IJ and BIA erred in finding that his conspiracy to commit wire fraud offense

was a “particularly serious crime” rendering him statutorily ineligible for 

withholding of removal under 8 U.S.C. § 1158(b)(2)(A)(ii). Specifically, he 

argues that undue weight was given to the length of his sentence and the 

restitution amount, and insufficient weight was given to his extreme remorse, 

acceptance of responsibility, cooperation with the Government, the 

nonviolence of his offense, and his joint and several liability with 

codefendants for the restitution amount.

If an alien commits any crime specified in 8 U.S.C. § 1252(a)(2)(C), 

he may obtain judicial review of constitutional and legal challenges to the final 

order of removal, but not of factual challenges to the final order of removal. 

Nasrallah v. Barr, 140 S. Ct. 1683, 1687–88, 1691 & n.4 (2020) (citing 8 

U.S.C. § 1252(a)(2)(C)–(D)). “Aggravated felonies” under 8 U.S.C. § 

1227(a)(2)(A)(iii) are among the offenses specified in § 1252(a)(2)(C).

Tibakweitira’s conspiracy to commit wire fraud offense, for which he was 

ordered to pay nearly $2.5 million in restitution, is an aggravated felony 

because it was a “conspiracy to commit an offense” that “involve[d] fraud . 

. . in which the loss to the victim or victims exceed[ed] $10,000.” 8 U.S.C. § 

1101(a)(43)(M)(i) & (U).

Tibakweitira does not argue that the IJ and BIA employed an incorrect 

legal standard or violated his constitutional rights in finding his crime to be 

particularly serious. Instead, he contends that the IJ and BIA erred by giving

weight to certain facts related to his crime and declining to give weight to 

other facts. His argument essentially asks usto reweigh the facts and find that 

his crime was not particularly serious, which we are without jurisdiction to 

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do. Solorzano-Moreno, 296 F. App’x at 394. Accordingly, Tibakweitira’s 

petition for review of the “particularly serious crime” findings of the IJ and 

BIA is dismissed for lack of jurisdiction.

B. CAT Relief

Tibakweitira contends that the IJ and BIA erred in finding that he did 

not meet his burden of proof for CAT relief based on his alleged TISS 

abandonment, testimony against codefendants during his criminal 

proceedings, and membership in Chadema, an opposition group to the 

Tanzanian government. Tibakweitira challenges the IJ’s adverse credibility 

determination, affirmed by the BIA, asserting that his testimony was truthful 

and shows that he faces a probability of torture upon his return to Tanzania.

He argues that the IJ failed to consider evidence in support of his CAT claim, 

including a photograph of himself in a military uniform, a letter from his sister 

regarding a visit she received from a Tanzanian law enforcement official, and 

a report of mass human rights violations in Tanzania.

“A CAT order is distinct from a final order of removal and does not 

affect the validity of a final order of removal.” Nasrallah, 140 S. Ct. at 1694. 

Thus, § 1252(a)(2)(C)’s bar on judicial review of factual challenges to final 

removal orders does not prohibit our review of factual challenges to CAT 

orders. Id. at 1692. To obtain CAT relief, the petitioner bears the burden of 

showing that (1) it is more likely not that he will be tortured upon return to 

his homeland; and (2) sufficient state action will be involved in that torture. 

Tamara-Gomez v. Gonzales, 447 F.3d 343, 350–51 (5th Cir. 2006). “Torture”

is defined as “any act by which severe pain or suffering, whether physical or 

mental, is intentionally inflicted on a person . . . by or at the instigation of or 

with the consent or acquiescence of a public official or other person acting in 

an official capacity.” 8 C.F.R. § 1208.18(a)(1).

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In assessing the first step, consideration must be given to: (1) whether 

the petitioner has been tortured in the past; (2) whether the petitioner could 

relocate to another part of the country where torture would not be likely; (3) 

whether there are “gross, flagrant or mass violations of human rights within 

the country of removal;” and (4) “other relevant information regarding 

conditions in the country of removal.” 8 C.F.R. § 1208.16(c)(3). Under the 

second step, a petitioner “may satisfy his burden of proving acquiescence by 

demonstrating a government’s willful blindness of torturous activity.” 

Iruegas-Valdez v. Yates, 846 F.3d 806, 812 (5th Cir. 2017) (citation omitted).

Despite Tibakweitira’s reliance on the military photograph, he points 

to no evidence corroborating his allegations that TISS recruited him from the 

military or intended to harm him for abandoning his position. His sister’s 

letter merely demonstrates that a Tanzanian law enforcement official asked 

her about his whereabouts. Tibakweitira testified that he was never physically 

harmed in Tanzania or the United States. He further testified to holding a

prominent job as a Washington, D.C. realtor to the Tanzanian community, 

despite allegedly receiving threats from TISS members during this period—

brazen public behavior that is inconsistent with someone seeking escape and

who fears return to Tanzania. Although he testified that he was threatened 

by TISS members multiple times while living in the United States, he stated 

that no one from TISS contacted him after 2007, even though TISS was 

aware of his location. He argues that his former codefendants have ties to the 

Tanzanian government, however, he failed to present evidence that any of 

these individuals exert influence supporting a likelihood of torture by or with 

the acquiescence of public officials upon his return. He faults the IJ and BIA 

for failing to consider a 2016 State Department report, which he asserts 

proves widespread human rights abuse against Chadema members in 

Tanzania. However, this report does not indicate that any such abuses 

occurred.

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For the foregoing reasons, substantial evidence supports the 

conclusion of the IJ and BIA that Tibakweitira failed to meet his burden of 

proof for CAT relief. Tamara-Gomez, 447 F.3d at 350–51. Tibakweitira’s 

petition for review of the denial of CAT relief is therefore denied.

C. Motion to Reopen

Tibakweitira argues that the BIA erred in denying his motion to 

reopen his removal proceedings for consideration of new evidence to 

corroborate his claim for CAT relief. Specifically, he contends that the BIA 

ignored a letter from his criminal defense attorney dated July 16, 2018, stating 

that Tibakweitira received threatening letters in prison regarding his 

cooperation with the Government during his criminal proceedings. He also 

argues that the BIA ignored a letter from a prison mail custodian dated 

February 2, 2018, explaining why a previously submitted copy of a 

threatening letter Tibakweitira received in prison—dismissed as not credible 

by the IJ for lack of an official prison stamp—was not logged as official prison 

mail. Finally, he cites an article published on August 1, 2017, which provides 

an overview of recent harassment and imprisonment of Tanzanian citizens 

for exercising free speech rights.

A motion to reopen must be based on “newly discovered evidence or 

a change in circumstances since the hearing.” Dada v. Mukasey, 554 U.S. 1, 

12 (2008) (citation omitted). The motion must be based on facts that are 

“material” and “could not have been discovered or presented at the former 

hearing.” 8 C.F.R. § 1003.2(c)(1).

The BIA denied Tibakweitira’s motion to reopen based on his failure 

to submit new evidence that was unavailable or undiscoverable at the time of 

his hearing. Tibakweitira does not explain why letters from his attorney and 

the prison mail custodian could not have been submitted at the time of his 

hearing. Even if this evidence had previously been undiscoverable, it would 

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not be material to his CAT claim because it fails to demonstrate likelihood of 

torture or that the senders of the alleged threatening letters had any influence 

over Tanzanian public officials. Similarly, the article is not material because 

it focuses on repression of free speech in Tanzania and provides no

corroboration for his fear of torture by Tanzanian public officials.

For the foregoing reasons, the BIA did not abuse its discretion in 

finding that Tibakweitira did not present newly discovered evidence to 

corroborate his claim for CAT relief. Gomez-Palacios, 560 F.3d at 358; Dada, 

554 U.S. at 12. Accordingly, his petition for review of the denial of his motion 

to reopen is denied.

D. Failure to Exhaust

Tibakweitira argues that the IJ violated his due process rights by 

limiting his attorney’s questioning during his hearing and mischaracterizing 

his evidence. He further asserts that his removal order constitutes a 

substantive due process violation because it amounts to a state-created 

danger, subjecting him to likelihood of harm upon his return to Tanzania 

despite the Government’s promise to protect him in exchange for his 

cooperation against his codefendants. Finally, he contends that his removal 

order violates the Convention Against Transnational Organized Crime. He

did not present any of these arguments to the BIA. He concedes that he failed 

to exhaust his claim under the Convention Against Transnational Organized 

Crime but urges that exhaustion would have been futile.

Judicial review of a final removal order is available only where the 

petitioner has exhausted all administrative remedies available as of right. 8 

U.S.C. § 1252(d)(1). Because exhaustion in this context is statutorily 

mandated, a petitioner’s failure to exhaust an issue before the BIA is a 

jurisdictional bar to our consideration of the issue. Wang v. Ashcroft, 260 F.3d 

448, 452 (5th Cir. 2001). “A remedy is available as of right if (1) the petitioner 

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could have argued the claim before the BIA, and (2) the BIA has adequate 

mechanisms to address and remedy such a claim.” Omari v. Holder, 562 F.3d 

314, 318–19 (5th Cir. 2009). To exhaust administrative remedies, an issue 

must be raised in the first instance before the BIA, either on direct appeal, in 

a motion to reopen, or in a motion for reconsideration. Id. at 319–20; Roy v. 

Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004). An exception to the exhaustion 

requirement exists for claims of due process violations, “except for 

procedural errors that are correctable by the BIA.” Roy, 389 F.3d at 137. 

However, the petitioner may not escape the exhaustion requirement by 

couching the procedural error in terms of a due process violation. Goonsuwan 

v. Ashcroft, 252 F.3d 383, 389–90 (5th Cir. 2001); Roy, 389 F.3d at 137. 

Tibakweitira’s argument that exhaustion was not required for his 

claim under the Convention Against Transnational Crime because 

exhaustion would be futile is meritless. A claim must be explicitly raised 

before the BIA, and there is no valid futility argument where the petitioner

had the opportunity to raise his claim and simply failed to do so. See Omari, 

562 F.3d at 320–21. Similarly, his due process claims present issues 

correctable by the BIA and could have been raised either on direct appeal or 

in his motion to reopen and reconsider. Id. at 318–19; Roy, 389 F.3d at 137. 

Tibakweitira makes no argument to the contrary. See Soadjede v. Ashcroft, 324 

F.3d 830, 833 (5th Cir. 2003) (issues not argued by petitioner seeking review 

of a BIA decision are deemed abandoned); Yohey v. Collins, 985 F.2d 222, 

224–25 (5th Cir. 1993) (arguments not adequately briefed are waived).

Tibakweitira’s failure to present these arguments to the BIA means 

that they are unexhausted, and we lack jurisdiction to consider them. Wang, 

260 F.3d at 452. Accordingly, his petition for review of unexhausted claims

is dismissed.

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E. Denial of Review by Three-Member Panel

The BIA denied Tibakweitira’s request for three-member panel 

review of his motion to reopen and reconsider. Generally, all cases must be 

assigned to a single BIA member for review. 8 C.F.R. § 1003.1(e). 

“Cases may only be assigned for review by a three-member panel” under 

certain circumstances. 8 C.F.R. § 1003.1(e)(6)(i)–(vii) (emphasis added). 

Tibakweitira argues that his case merits three-member review because there 

is a “need to review a clearly erroneous factual determination by an 

immigration judge.” 8 C.F.R. § 1003.1(e)(6)(v).

Under 8 C.F.R. § 1003.1(e)(5), the BIA member to whom a case is 

assigned “has the discretion to decide whether the case merits review by a 

three-member panel. Assignment to a three-member [panel] is not 

mandatory even if it meets the criteria under 8 C.F.R. § 1003.1(e)(6).”

Cantu-Delgadillo v. Holder, 584 F.3d 682, 690–91 (5th Cir. 2009). “Because 

the decision to designate the case to be heard by a three-member panel is 

discretionary, this court lacks jurisdiction to review the BIA’s decision.” Id. 

at 691. Even if we had jurisdiction to review the BIA’s decision, we find that 

there are no clearly erroneous factual determinations in the IJ’s written 

decision to merit three-member review.

For these reasons, we dismiss for lack of jurisdiction Tibakweitira’s 

petition for review of the BIA’s non-referral of his motion to a three-member 

panel.

IV.

For the foregoing reasons, Tibakweitira’s petitions for review are 

DISMISSED for lack of jurisdiction as to his claims that (1) the IJ and BIA

erred in finding that his conspiracy to commit wire fraud offense was a 

“particularly serious crime” rendering him ineligible for withholding of 

removal; (2) his due process rights and the Convention Against 

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Transnational Organized Crime were violated by the IJ and/or through his

removal order; and (3) the BIA erred in denying three-member review of his 

motion to reconsider and reopen.

His petitions for review are DENIED as to his claims that (1) the IJ 

and BIA erred in denying CAT relief; and (2) the BIA erred in denying his 

motion to reopen.

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