United States Court of Appeals

for the Fifth Circuit

No. 20-60743

Summary Calendar

Yannick Alpha Ndelela, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A203 593 666

Before Smith, Stewart, and Graves, Circuit Judges.

Per Curiam:*

Yannick Alpha Ndelela, a native and citizen of the Democratic 

Republic of the Congo (DRC), has petitioned for review of a decision of the 

Board of Immigration Appeals (BIA) dismissing his appeal from a decision of 

the immigration judge (IJ) concluding that he was ineligible for asylum, 

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opinion should not be published and is not precedent except under the limited 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

May 27, 2022

Lyle W. Cayce

Clerk

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withholding of removal, and relief under the Convention Against Torture 

(CAT). For the reasons set forth below, Ndelela’s petition for review is 

DENIED IN PART and DISMISSED IN PART for lack of jurisdiction.

To the extent that Ndelela argues that the BIA erred procedurally by 

ignoring evidence, his claim is unexhausted. See Martinez-Guevara 

v. Garland, 27 F. 4th 353, 360-61 & n.9 (5th Cir. 2022). His contention that 

that the IJ and the BIA erred by failing to address a claim that he had 

established a well-founded fear of future persecution based on a pattern or 

practice of persecution of a group of persons similarly situated to him is also 

unexhausted; he did not fairly present such a claim to the BIA. See Omari 

v. Holder, 562 F.3d 314, 318-19 (5th Cir. 2009). We lack jurisdiction to 

consider these issues. See id. 

Ndelela argues that the evidence shows that his political opinion was 

at least one central reason for his persecution. An asylum applicant has the 

burden to, inter alia, establish a nexus between the alleged persecution and 

one of the five statutory grounds for asylum. Tamara-Gomez v. Gonzales, 447 

F.3d 343, 349 (5th Cir. 2006). 

As we have held, conduct driven by purely personal or criminal 

motives does not constitute persecution on account of a protected ground. 

Thuri v. Ashcroft, 380 F.3d 788, 792-93 (5th Cir. 2004). Although Ndelela 

argues strenuously that the death threat he received and the actions taken 

against him and his family members were related to his participation, as an 

attorney, in a land dispute involving two well-connected generals, he has not 

demonstrated that a reasonable factfinder would be compelled to conclude 

his political opinion was one central reason for his persecution. See 

Changsheng Du v. Barr, 975 F.3d 444, 448 (5th Cir. 2020); Sharma v. Holder, 

729 F.3d 407, 413; Thuri, 380 F.3d at 792-93. His related contention that the 

agency erred by failing to conduct a mixed-motives analysis fails; although a 

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persecutor’s mixed motive might support a claim that an individual was 

persecuted on account of a protected ground, here substantial evidence 

supports the agency’s determination that Ndelela “failed to establish 

persecution to any extent on account of or motivated by” his political 

opinion. Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 350 (5th Cir. 2002).

Ndelela has also failed to establish the requisite nexus with respect to 

his claim of a well-founded fear of future persecution. See Pena Oseguera 

v. Barr, 936 F.3d 249, 250 (5th Cir. 2019), as revised (Oct. 15, 2019). Because 

Ndelela fails to show that he is entitled to relief in the form of asylum, he 

cannot establish entitlement to withholding of removal, which requires a 

higher burden of proof. See Dayo v. Holder, 687 F.3d 653, 658-59 (5th Cir. 

2012). It is unnecessary to consider Ndelela’s remaining arguments as to the 

denial of these claims. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976).

Finally, Ndelela challenges the denial of his claim for protection under 

the CAT. To obtain relief under the CAT, an applicant must show “that it 

is more likely than not that he or she would be tortured if removed to the 

proposed country of removal.” Efe v. Ashcroft, 293 F.3d 899, 907 (5th Cir. 

2002) (internal quotation marks and citation omitted). 

As the IJ determined, there is no evidence that Ndelela has been the 

victim of past torture, and the willingness of the police to take Ndelela’s 

report following the attempted kidnaping incident lends support to the 

determination that public officials would not acquiesce in his torture. See 

Martinez-Lopez v. Barr, 943 F.3d 766, 772 (5th Cir. 2019); Gonzales-Veliz 

v. Barr, 938 F.3d 219, 225 (5th Cir. 2019). Because substantial evidence 

supports the denial of the CAT claim, we will not disturb the agency’s 

decision. See Martinez-Lopez, 943 F.3d at 772. 

PETITION FOR REVIEW DENIED IN PART AND 

DISMISSED IN PART.

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