Case: 20-60431 Document: 00515912549 Page: 1 Date Filed: 06/24/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED June 24, 2021 No. 20-60431 Lyle W. Cayce Summary Calendar Clerk Patrice Musoko Tshidibi, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A201 698 359 Before Clement, Higginson, and Engelhardt, Circuit Judges. Per Curiam:* Patrice Musoko Tshidibi is a native and citizen of the Democratic Republic of Congo. He seeks review of a decision of the Board of Immigration Appeals (BIA) dismissing his appeal from an order of the * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 20-60431 Document: 00515912549 Page: 2 Date Filed: 06/24/2021 No. 20-60431 Immigration Judge (IJ) denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). This court reviews the final decision of the BIA and will review the IJ’s ruling only insofar as it affected the BIA’s decision. Sealed Petitioner v. Sealed Respondent, 829 F.3d 379, 383 (5th Cir. 2016); Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002). Legal conclusions are reviewed de novo, and factual findings are reviewed for substantial evidence. Orellana-Monson v. Holder, 685 F.3d 511, 517–18 (5th Cir. 2012). Under the substantial evidence standard, this court may not reverse an immigration court’s factual findings unless the evidence “compels” such a reversal—i.e., the evidence must be “so compelling that no reasonable factfinder could conclude against it.” Wang v. Holder, 569 F.3d 531, 536–37 (5th Cir. 2009); see also Garland v. Dai, No. 19–1155, 2021 WL 2194837, at *9 (U.S. June 1, 2021) (reaffirming the same standard) An alien must exhaust all administrative remedies available to him as of right before this court may review a final order. 8 U.S.C. § 1252(a)(1), (d)(1); Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009). When “the BIA’s decision itself results in a new issue and the BIA has an available and adequate means for addressing that issue, a party must first bring it to the BIA’s attention through a motion for reconsideration.” Id. at 320–21; see also Dale v. Holder, 610 F.3d 294, 298–99 (5th Cir. 2010). Musoko Tshidibi’s assertions that the BIA failed to fully consider his appellate arguments, that the BIA failed to fully and fairly consider his appeal as required by due process and Fifth Circuit precedent, and that the BIA failed to apply any standard of review are all issues that arise out of the BIA’s decision and that should have been addressed in a motion for reconsideration. See Avelar-Oliva v. Barr, 954 F.3d 757, 766 (5th Cir. 2020). Accordingly, 2 Case: 20-60431 Document: 00515912549 Page: 3 Date Filed: 06/24/2021 No. 20-60431 this court lacks jurisdiction, and the claims are dismissed. See Roy v. Ashcroft, 389 …
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