Case: 21-60458 Document: 00516342672 Page: 1 Date Filed: 06/03/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED June 3, 2022 No. 21-60458 Lyle W. Cayce Clerk Kamaljeet Singh Masi, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A203 602 089 Before Jolly, Willett, and Engelhardt, Circuit Judges. Per Curiam:* Kamaljeet Singh Masi, a native and citizen of India, petitions for review of a decision of the Board of Immigration Appeals. The BIA upheld the Immigration Judge’s denial of Singh Masi’s application for asylum, withholding of removal, and relief under the Convention Against Torture. Singh Masi advances four arguments on appeal. * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-60458 Document: 00516342672 Page: 2 Date Filed: 06/03/2022 No. 21-60458 First, Singh Masi argues that the Immigration Judge improperly relied on the “Third Country Transit Bar.” 8 C.F.R. § 1208.13(c)(4). When the IJ denied Singh Masi’s claim, the rule was still in effect. The rule was vacated shortly after the IJ denied his claim but before the BIA considered his appeal. See Cap. Area Immigrants’ Rts. Coal. v. Trump, 471 F. Supp. 3d 25, 59 (D.D.C. 2020), appeal dismissed as moot sub nom. I.A. v. Garland, No. 20-5271, 2022 WL 696459 (D.C. Cir. Feb. 24, 2022). The BIA did not base its decision on the Third Country Transit Bar, presumably because it realized the rule was no longer in effect. In fact, it did not even mention the rule. “Our review considers the IJ’s reasoning only insofar as the BIA’s decision incorporated it.” Tabora Gutierrez v. Garland, 12 F.4th 496, 501 (5th Cir. 2021). While the IJ relied on the Third Country Transit Bar, the BIA did not, so the rule is irrelevant to this appeal. Second, Singh Masi argues that the BIA should have granted him “past-persecution only asylum,” or “humanitarian asylum.” He argues that even if the BIA were right that he failed to show a well-founded fear of future persecution, his past persecution was severe enough to entitle him to asylum. See, e.g., Matter of Chen, 20 I. & N. Dec. 16, 19 (B.I.A. 1989); Lal v. INS, 255 F.3d 998, 1003, amended on reh’g, 268 F.3d 1148 (9th Cir. 2001) (finding applicants were eligible for asylum based on the severity of their past persecution). But because this claim was not presented to the BIA, we lack jurisdiction to consider it. See Omari v. Holder, 562 F.3d 314, 318-19 (5th Cir. 2009) (reviewing courts lack jurisdiction to review claims not raised before the BIA); see also 8 U.S.C. § 1252(d). Third, Singh Masi argues that the BIA’s adverse credibility determination was in error. “[I]t is the factfinder’s duty to make determinations based on the credibility of the witnesses.” Avelar-Oliva …
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