United States Court of Appeals

for the Fifth Circuit

No. 19-60315

Summary Calendar

Eugene Udoka Udensi, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A215 768 451

Before Davis, Stewart, and Ho, Circuit Judges.

Per Curiam:*

Eugene Udoka Udensi, a native of Cameroon and dual citizen of 

Cameroon and Nigeria, applied for asylum, withholding of removal, and 

relief under the Convention Against Torture (CAT), based on fear of future 

persecution if he returned to those countries based on imputed political 

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opinion should not be published and is not precedent except under the limited 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

March 12, 2021

Lyle W. Cayce

Clerk

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opinion due to his father’s involvement with the Movement for the 

Actualization of the Sovereign State of Biafra (MASSOB), a political group 

in Nigeria, and his mother’s involvement with the Ambazonia political group 

in Cameroon. His applications for asylum, withholding, and CAT protection

were denied based on the immigration judge’s (IJ) finding of a lack of 

corroborative evidence, which was upheld by the Board of Immigration 

Appeals (BIA). The BIA also denied Udensi’s motions to reconsider and to 

reopen to consider new evidence.

Udensi, through counsel, argues that the IJ deprived him of a fair 

hearing and his right to due process by finding that he was partially credible, 

by finding that he failed to provide corroborating evidence of his claims, and 

by denying his application for relief. He contends that corroborating 

evidence was not reasonably available given the short amount of time he was 

given to produce such evidence.

We review an immigration court’s findings of fact for substantial 

evidence. Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). We may not 

reverse an immigration court’s factual findings unless “the evidence was so 

compelling that no reasonable factfinder could conclude against it.” Id. at 

537. In order to carry his burden of proof, a petitioner must sometimes 

present reasonably available corroborative evidence of his claims, and the 

failure to do so may be dispositive of the petitioner’s application for relief 

without regard to the credibility of his testimony. Rui Yang v. Holder, 664 

F.3d 580, 585-87 (5th Cir. 2011). In reviewing challenges to determinations 

regarding the availability of corroborating evidence, we consider whether the 

IJ was “compelled to conclude that such corroborating evidence is 

unavailable.” Id. at 587 (quoting 8 U.S.C. § 1252(b)(4)).

Udensi’s statement that he did not think to ask his cousin Iweka 

Udensi for an affidavit which could corroborate his testimony did not compel 

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the conclusion that this corroborating evidence was unavailable. See Yang, 

664 F.3d at 587. Udensi’s assertion that he could not obtain an affidavit from 

his wife’s aunt, Agnes Tanyi, on time does not mean such evidence was 

unavailable. Udensi himself suggested that he could get the evidence he 

needed in one week, and if he needed more time, the IJ told him he could 

request it. When the IJ pressed him for evidence supporting his claim that 

he would be targeted as a family member, Udensi did not request a 

continuance from the IJ in order to obtain a letter from his wife’s aunt or any 

other evidence that could have corroborated his claim. The fact that Udensi 

proceeded pro se and was detained did not excuse him from the requirement 

to provide reasonably available corroborative evidence. See Yang, 664 F.3d 

at 587-88.

Prior to disposing of an alien’s claim, the IJ is not required to provide 

“advance notice of the specific corroborating evidence necessary to meet the 

applicant’s burden of proof and an automatic continuance for the applicant 

to obtain such evidence.” Avelar-Oliva v. Barr, 954 F.3d 757, 771 (5th Cir. 

2020). The IJ was not required to continue the proceedings on its own when 

Udensi failed to provide corroborating evidence. See id. When the IJ noted 

the deficiencies in Udensi’s evidence and asked Udensi why he did not 

provide such evidence, it was up to Udensi to request a continuance to obtain 

the evidence.

Substantial evidence supports the IJ’s and BIA’s determination that 

Udensi failed to present sufficient corroborative evidence, that such evidence 

was reasonably available, and that the IJ and BIA were not “compelled to 

conclude that such corroborating evidence [was] unavailable.” See Yang, 664 

F.3d at 587-88. Udensi has not shown a violation of due process. See Anwar 

v. INS, 116 F.3d 140, 144 (5th Cir. 1997). Lastly, the BIA’s determination 

that the evidence was insufficient to establish that the Nigerian or Cameroon 

governments were interested in persecuting Udensi on account of an 

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imputed political opinion or his family relationship to his parents is supported 

by substantial evidence. See Wang, 569 F.3d at 536. 1

Udensi has failed to brief his claims for withholding of removal and 

CAT protection apart from asylum. By failing to brief any issues related to 

his claims for withholding of removal or CAT relief, Udensi has waived or 

abandoned them. See Thuri v. Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004).

Udensi argues that in denying his motion to reopen, the BIA refused 

to consider a piece of critical corroborative evidence, the arrest warrant, 

because of a factual finding that was clearly erroneous. He contends that the 

date on the arrest warrant, May 22, 2018, was the date on which he allegedly 

failed to appear, not the date of the issuance of the arrest warrant, and that 

the arrest warrant was not available to him to be presented at his hearing on 

October 25, 2018. Udensi also argues that the BIA’s refusal to consider the 

affidavits he submitted with his motion to reopen is not based on substantial 

evidence and deprived him of due process.

A “motion to reopen is a form of procedural relief that asks the [BIA] 

to change its decision in light of newly discovered evidence or a change in 

circumstances since the hearing.” Lugo-Resendez v. Lynch, 831 F.3d 337, 339 

(5th Cir. 2016) (internal quotations and citation omitted). In order to warrant 

reopening, the evidence offered must be “material” and “not available and 

could not have been discovered or presented at the former hearing.” 8 CFR 

§ 1003.2(c)(1).

Motions to reopen removal proceedings are disfavored, and the 

moving party bears a heavy burden. Altamirano-Lopez v. Gonzales, 435 F.3d 

547, 549 (5th Cir. 2006). “In reviewing the denial of a motion to reopen, this 

1 Because the BIA did not address the IJ’s findings on credibility, we do not 

consider the IJ’s credibility determination. See Yang, 664 F.3d at 587.

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court applies a highly deferential abuse-of-discretion standard, regardless of 

the basis of the alien’s request for relief.” Gonzalez-Cantu v. Sessions, 866 

F.3d 302, 304 (5th Cir. 2017) (internal quotations and citation omitted). We

“must affirm the BIA’s decision as long as it is not capricious, without 

foundation in the evidence, or otherwise so irrational that it is arbitrary rather 

than the result of any perceptible rational approach.” Id. at 304-05 (internal 

quotations and citation omitted).

In denying Udensi’s motion to reopen, the BIA determined that the 

affidavits of his family members “clearly could have been presented at his 

October 25, 2018, merits hearing,” and that the arrest warrant was issued on 

May 22, 2018, predating his merits hearing by five months. Udensi does not 

explain in his brief what efforts he made to obtain the arrest warrant or the 

affidavits. Two months after he filed his motion to reopen, Udensi submitted 

the affidavit of his wife, who stated that she had attempted to get affidavits 

from people back home to corroborate Udensi’s claims butshe could only get 

one. She explained that the political situation in Cameroon made it

impossible to obtain affidavits or evidence to corroborate Udensi’s claims. 

She attested that most of the people she contacted were unable to provide 

affidavits due to the conditions in the countries and because the people were 

scared, and they could not find a law firm or a court to notarize affidavits. 

Notably, Udensi’s wife did not include any of this information about her 

difficulties obtaining corroborating evidence in her letter submitted with the 

original application for asylum. Udensi does not explain how the conditions 

in the countries changed between October 25, 2018, the date of his hearing,

and November 26, 2018, November 27, 2018, or December 7, 2018, the dates 

of the affidavits he submitted, such that he was able to get the affidavits in 

such a short time immediately following his hearing. In one of those 

affidavits, the witness stated that he was the person who informed Udensi 

that the military was coming after him with a warrant for his arrest, which 

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warning he gave so that Udensi could leave for his safety, confirming that the 

arrest warrant was issued before Udensi left Cameroon in June 2018.

Udensi has not shown that the BIA abused its discretion in denying 

his motion to reopen. See Gonzalez-Cantu, 866 F.3d at 304-05. Udensi did 

not have a protected liberty interest in his motion to reopen, and his dueprocess claim fails. See Altamirano–Lopez, 435 F.3d at 550. Udensi makes no 

arguments challenging the BIA’s determination that his motion to reconsider

was untimely or challenging the BIA’s denial of his request for sua sponte 

reconsideration and equitable tolling, and so Udensi has waived review of 

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

The petitions for review are DENIED.

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