Ouedraogo v. Garland
21-60028
| 5th Cir. | Jul 15, 2022Background
- Petitioner Seni Ouedraogo, a native and citizen of Burkina Faso, sought asylum, withholding of removal, and CAT relief based on violence and fear of persecution for being gay.
- An IJ denied relief, finding Ouedraogo failed to show the Burkinabe government condoned or was helpless to prevent violence against gay men; the BIA dismissed his appeal and denied his motion to remand.
- The record included mixed country‑condition evidence: no law criminalizing same‑sex conduct, the government rejected a 2015 proposal to criminalize homosexual acts and gay marriage, and limited reports of government or societal violence against LGBTI persons.
- Ouedraogo testified he did not report attacks to authorities because he believed reporting would be futile; he inconsistently described his reasons for not reporting.
- He raised some arguments and evidence for the first time to the BIA (including alleged de facto government awareness of his torture); the court found some arguments unexhausted or abandoned.
- The Fifth Circuit dismissed parts of the petition for lack of exhaustion/abandonment and denied the remainder on the merits under the substantial‑evidence standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exhaustion of challenges to BIA's standard-of-review and sufficiency of reasons | Ouedraogo argued those issues on appeal | Respondent argued they were not exhausted because no motion to reconsider was filed | Not considered by the court—claims unexhausted and dismissed |
| Whether govt condones/is helpless re violence against gay men (asylum/withholding) | Ouedraogo argued evidence showed government condoned or was helpless to prevent violence | Government pointed to contrary evidence (no criminalization, rejection of 2015 proposal, few reports of violence) and Ouedraogo’s failure to report | Denied: substantial evidence supports BIA/IJ finding against Ouedraogo |
| Whether IJ/BIA improperly failed to address or misweighed evidence (including failure to report attacks) | Ouedraogo said IJ ignored or gave insufficient weight to relevant evidence and should have credited failure-to-report reasons | Government argued IJ/BIA were not required to discuss every item and could discount inconsistent testimony | Denied: court declined to reweigh evidence; inconsistent testimony undercut failure-to-report explanations |
| CAT claim and BIA’s consideration of newly presented evidence | Ouedraogo argued BIA failed to consider evidence that a de facto government knew of his torture | Government noted the evidence was first raised to the BIA and the BIA considered and found it inadequate in denying remand | Denied: petitioner failed to show BIA erred in its consideration or in denying remand |
Key Cases Cited
- Martinez‑Guevara v. Garland, 27 F.4th 353 (5th Cir. 2022) (motion to reconsider required to preserve certain BIA challenges)
- Wang v. Holder, 569 F.3d 531 (5th Cir. 2009) (standard for showing government condones or is helpless regarding private persecution)
- Sanchez‑Amador v. Garland, 30 F.4th 529 (5th Cir. 2022) (evidentiary issues in LGBT‑based asylum claims and failure to report evidence)
- Mirza v. Garland, 996 F.3d 747 (5th Cir. 2021) (appellate courts may not reweigh evidence)
- Nasrallah v. Barr, 140 S. Ct. 1683 (U.S. 2020) (describing the highly deferential substantial‑evidence standard)
- Ramirez‑Mejia v. Lynch, 794 F.3d 485 (5th Cir. 2015) (conflicting evidence does not compel reversal)
- Revencu v. Sessions, 895 F.3d 396 (5th Cir. 2018) (upholding BIA credibility and mixed‑evidence determinations)
- Kane v. Holder, 581 F.3d 231 (5th Cir. 2009) (substantial‑evidence review in immigration cases)
- Rui Yang v. Holder, 664 F.3d 580 (5th Cir. 2011) (issues abandoned when not adequately briefed on appeal)