Case: 19-60055 Document: 00516042822 Page: 1 Date Filed: 10/05/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 5, 2021 No. 19-60055 Lyle W. Cayce Summary Calendar Clerk 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deferral of removal under the * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 19-60055 Document: 00516042822 Page: 2 Date Filed: 10/05/2021 No. 19-60055 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 …
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