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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 18-11910
                         Non-Argument Calendar
                       ________________________

                        Agency No. A209-908-615



WASIQ ULLAH,

                                                                       Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                       ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                        ________________________

                            (January 31, 2019)

Before BRANCH, HULL and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Wasiq Ullah, a native and citizen of Afghanistan, petitions for review of the

Board of Immigration Appeals’s (“BIA”) final order affirming the Immigration

Judge’s (“IJ”) denial of his claims for asylum, withholding of removal, and relief

under the United Nations Convention Against Torture (“CAT”). After review, we

deny the petition for review.

                           I. BACKGROUND FACTS

A.    Interpreter Work with U.S. Forces in Afghanistan

      Between 2008 and 2011, Ullah’s brother Amdadullah worked as a linguist at

the U.S. Army Base Fenty in Afghanistan. As a result of his brother’s

employment, Ullah’s family received warnings announced over a loudspeaker at

their hometown mosque that they were in danger from the Taliban. In 2010,

Ullah’s family relocated to Jalalabad.

      Between January 2011 and January 2014, Ullah worked as a linguist for the

U.S. Army at Camp Leatherneck in Afghanistan. Camp Leatherneck was a

trucking terminal that received and distributed supplies to security forces and

Afghan citizens. Ullah worked as an interpreter for the camp’s logistical units,

speaking with local truck drivers and other Afghans.

      In August 2011, after a security screening, Ullah’s brother Amdadullah was

terminated from his linguist position because of his involvement with Taliban

sympathizers and his enabling of racism among the linguists on the base. As a


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result, Ullah was designated a “tier 6” risk, which did not preclude his employment

at Camp Leatherneck, but meant that Ullah was watched more closely. After his

termination, Ullah’s brother Amdadullah worked as a consultant for the Nangarhar

Provincial Council. Ullah has two other brothers who are Afghan police officers.

None of Ullah’s brothers have ever been harmed in Afghanistan.

       While working at Camp Leatherneck, Ullah received four certificates of

appreciation. In 2012, Ullah began the process of applying for a special immigrant

visa under § 602(b) of the Afghan Allies Protection Act of 2009, Pub. L. No. 111-8

(March 11, 2009), based on his service as an interpreter at Camp Leatherneck.1 In

August 2013, Ullah received a Chief of Mission letter that confirmed his eligibility

to apply for a special immigrant visa, one of the required steps in the process.

B.     Termination and Tier Four Security Risk Designation

       On January 22, 2014, Ullah was terminated from his job at Camp

Leatherneck because he failed a routine screening conducted by a

counterintelligence officer. As part of the screening, Ullah underwent a polygraph

test and received a negative result for his answers to two questions—whether he

was a member of an anti-coalition group and whether he had ever participated in

an attack against coalition forces.


       1
         The special immigrant visa program is available to Afghan nationals who worked for or
on behalf of U.S. forces and meet certain other requirements, including experiencing a serious
threat as a consequence of their employment.
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      As a result, Ullah was barred from Camp Leatherneck and other U.S.

installations in Afghanistan and from receiving U.S. training. In addition, the 2013

Chief of Mission letter confirming Ullah’s eligibility to apply for a special

immigrant status was revoked. In April 2014, Ullah was interviewed at the U.S.

Embassy in Kabul in connection with his application for a special immigrant visa.

Ultimately, Ullah was unable to complete the special immigrant visa process,

however, because he no longer met the requirements for the requested

classification once his Chief of Mission letter was revoked.

      A counterintelligence officer subsequently prepared a memorandum

indicating that after Ullah was terminated, he was placed on “tier four” of the

Biometrics Enabled Watch List. Ullah’s tier four designation meant he was

considered a “moderate threat or risk to U.S. or coalition personnel” because he

could provide information that could lead to action against U.S. forces. The

memorandum stated that Ullah was suspected of affiliating with a foreign

intelligence security service, such as the Taliban, which meant Ullah had some

communications with a suspected foreign intelligence officer. The memorandum

indicated Ullah could pose a “force protection threat,” which meant he could have

provided information that could be used to harm U.S. forces. While the

memorandum itself was declassified so that it could be presented as evidence in

Ullah’s immigration proceedings, the information underlying the memorandum


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was not. The classified derogatory information about Ullah was based on more

than Ullah’s failed polygraph test and his termination at Camp Leatherneck.

C.    Subsequent Years in Afghanistan

      From June 2014 until September 2016, Ullah studied political science at Al

Falah University in Jalalabad, commuting to the university by biking, walking, or

riding in car. While Ullah attended the university, some people around the

university or in his neighborhood were kidnapped or killed by opposition groups.

According to Ullah, opposition forces such as the Taliban tried to kill people who

cooperated with the Afghan government or who worked with U.S forces, including

as interpreters. To protect himself, Ullah kept secret his former work as an

interpreter, remained mostly in his home, and did not attend social events or travel

outside the city. Ullah also received warnings from the Nangarhar Provincial

Council that he was in danger because of his past work with U.S. forces. However,

neither Ullah nor his brother Amdadullah, who also had worked as a linguist for

U.S. forces, was ever harmed in Afghanistan.

      Before leaving Afghanistan, Ullah met with his brother Amdadullah in

Kabul. Amdadullah took a farewell photo of Ullah standing in a public park

wearing western attire. Amdadullah posted the photo on Facebook along with

other photos of his family.




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D.     Entry into the United States and Removal Proceedings

       In late September 2016, Ullah left Afghanistan and paid $16,000 to be

smuggled through several countries and into Mexico. After reaching Brownsville,

Texas, Ullah applied for admission to the United States without a valid entry

document. In a credible fear interview, Ullah stated that he feared persecution in

Afghanistan because of his past interpreter work for the U.S. Army.

       In removal proceedings, Ullah admitted that he was an immigrant applying

for admission to the United States who did not possess a valid passport or other

entry document and conceded his removability under Immigration and Nationality

Act (“INA”) § 212(a)(7)(A)(i)(1), 8 U.S.C. § 1182(a)(7)(A)(i)(1). Ullah applied

for asylum, withholding of removal, and CAT relief, contending that he feared

persecution by the Taliban and other insurgent groups based on his political

opinion and membership in a particular social group.2 Ullah submitted 2012 and

2013 letters from his supervisors at Camp Leatherneck recommending Ullah for a

special immigrant visa and copies of the undated letters purportedly from

government officials in Nangarhar stating that opponents of the Afghan

government had threatened Ullah’s life and the life of his family members. 3


       2
         Ullah also moved to terminate the removal proceedings based on his purported eligibility
for a special immigrant visa. Ullah’s petition for review does not challenge the denial of this
motion, and we do not discuss it further.
       3
        The only translations of these three letters in the record were prepared by Ullah and do
not contain dates.
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      Ullah also filed country background exhibits, including the U.S State

Department’s 2015 Report on Human Rights Practices in Afghanistan (“country

report”), which noted that insurgent groups made indiscriminate attacks on

civilians and killed persons affiliated with the government. One 2017 New York

Times article reported that a suicide bomber, who had worked at Bagram Air Base

and had links to the Taliban, killed Afghan security guards working for a U.S

military contractor on the base. Also, the military had reduced the number of

Afghan workers at the base in part due to force protection concerns. Other 2017

New York Times articles noted Taliban attacks on Afghan police and security

forces and reported Taliban or ISIS control of parts of Afghanistan. A 2013

Washington Post article about the State Department’s administration of the special

immigrant visa program included a report of a former Afghan interpreter for the

U.S. Marines who was kidnapped and killed outside Kabul days after he had

completed his visa interview. Additional articles described various political

developments regarding the U.S. special immigrant visa program over the past

several years, violence in Afghanistan, including fighting between pro- and anti-

government forces and attacks on civilians, U.S. foreign policy and the bombing of

ISIS militants, and government corruption in Afghanistan.

      The government moved to pretermit the asylum and withholding of removal

portions of Ullah’s application based on statutory national security bars to these


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forms of relief. Under these statutes, an applicant is barred from relief if there are

“reasonable grounds” to believe the applicant is a danger to the security of the

United States. See INA § 208(b)(2)(A)(iv), 8 U.S.C. § 1158(b)(2)(A)(iv)

(asylum); INA § 241(b)(3)(B)(iv), 8 U.S.C. § 1231(b)(3)(B)(iv) (withholding of

removal).

      At Ullah’s merits hearings, the government presented expert testimony from

U.S. Army Colonel Paul Sarat, Jr. in support of its claim that the national security

bars applied. Colonel Sarat explained the special immigrant visas application

process and the termination process for Afghan interpreters working with the

military. Colonel Sarat also testified about the military’s documentation relating to

Ullah’s termination and tier-four risk designation. Ullah testified in support of his

claims for relief and stated that people in Afghanistan knew that he had worked for

the U.S. Army and that he believed his life was in danger there.

F.    IJ’s Decision

      The IJ issued a written decision denying Ullah all requested relief. The IJ

made the following relevant findings of fact: (1) Ullah was not a combat linguist

during his employment as a contract interpreter for the U.S. military from 2011 to

2014; (2) Ullah was never threatened or harmed while working as an interpreter at

Camp Leatherneck or when he left the base on leave; (3) Ullah was terminated

after a routine periodic security screening at Camp Leatherneck and was suspected


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of being affiliated with a foreign intelligence security service; (4) Ullah was barred

from entering U.S. installations and receiving U.S. training provided to Afghan

police or military forces; (5) Ullah applied for a special immigrant visa and

received a Chief of Mission approval letter, but the approval was revoked after the

nature of his termination was ascertained; (6) for two and a half years after his

termination, Ullah attended a university that did not have security guards; (7)

during that time, Ullah was not harmed or threatened; and (8) before Ullah left

Afghanistan, Ullah’s brother posted a picture on Facebook of Ullah in a public

place wearing western garb.

      In addition, the IJ found that the unauthenticated letters submitted by Ullah

purportedly from the Nangarhar Provincial Council were fabricated based on

inconsistencies and typos in the letters. The IJ also made an express finding that

Ullah was not credible, finding Ullah’s testimony was weak and uncorroborated by

reliable evidence, Ullah’s claim that he received threats over a loudspeaker was

unbelievable, and Ullah was evasive and non-responsive during cross-examination.

      The IJ concluded, inter alia, that the government had met its initial burden to

show that the national security bars applied and that Ullah had not met his burden

to show that they did not. See 8 C.F.R. § 1240.8(d) (providing that “[i]f the

evidence indicates that one or more of the grounds for mandatory denial of the




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application for relief may apply, the alien shall have the burden of proving by a

preponderance of the evidence that such grounds do not apply”).

       Alternatively, the IJ considered Ullah’s claims on the merits. As to Ullah’s

asylum claim, the IJ acknowledged that Ullah must show “either that he would be

singled out for persecution . . . or that, within that country, there is a pattern or

practice of persecution, on account of a protected ground, of those similarly-

situated to him and that he identifies with the group such that his fear is

reasonable.” The IJ concluded that Ullah had not established a well-founded fear

of future persecution because “the record does not suggest that he has a well-

founded fear of future persecution.” The IJ pointed out that: (1) Ullah relied on

fabricated documents; (2) his family members continued to live open lives as

current Afghan government employees and had not been harmed; (3) Ullah

attended university for two years and suffered no harm or threats of harm; and

(4) Ullah never personally received any threats from anyone, let alone the Taliban.4

The IJ also concluded that, because Ullah had not met the lower burden to show

eligibility for asylum, he also had not met his burden to show eligibility for

withholding of removal.




       4
        The IJ elaborated upon its reasons for discrediting Ullah, but we do not include them
because the BIA ultimately did not adopt the IJ’s credibility finding.
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      The IJ determined that Ullah also was ineligible for CAT relief because he

had lived for two years in Afghanistan without being harmed, as had his brother

Amdadullah, who also had worked as a linguist. The IJ acknowledged Ullah’s

evidence of “unrest in Afghanistan . . . at the hands of government opposition

forces, including ISIS and the Taliban.” But the IJ concluded that Ullah’s

references to “vague statements in country reports,” along with his unreliable

testimony, were insufficient to show Ullah faced “a foreseeable, real, and personal

danger of being subjected to torture by the Taliban or other government opposition

forces.”


G.    Appeal to the BIA

      Ullah appealed to the BIA, raising numerous issues, most of which are not

reasserted in his petition for review filed in this Court. Relevant here, Ullah

challenged: (1) the IJ’s determination that his asylum and withholding of removal

claims were subject to national security bars; and (2) the IJ’s alternative finding

that Ullah had not shown a well-founded fear of future persecution. As to the

second issue, Ullah argued that he had demonstrated “his inclusion in a group of

similarly situated persons who have worked as linguists for the U.S. military, who

have experienced a pattern and practice of persecution on account of membership

in that particular social group.”



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      The BIA dismissed Ullah’s appeal. The BIA concluded that the IJ had

properly applied the national security bars.

      The BIA also affirmed the IJ’s alternative determination that Ullah did not

demonstrate a well-founded fear of future persecution in Afghanistan due to his

work as an interpreter. The BIA stressed that Ullah had never personally been

threatened. The BIA noted that Ullah’s family had been threatened over a

loudspeaker at a mosque, but that this threat had occurred before Ullah’s

employment at Camp Leatherneck, and after his termination, Ullah had lived safely

in Afghanistan for two years while attending university. The BIA noted that

Ullah’s family, all of whom were government supporters and some of whom were

government employees, had never been harmed by the Taliban or other terrorist

groups, including his brother who also worked as an interpreter for the U.S.

military and now worked for a local government. In addition, Ullah’s brother had

posted pictures of himself and his family on Facebook, which indicated Ullah’s

brother did not fear that the Taliban would target him. The BIA stated that it

“discern[ed] no clear error in the Immigration Judge’s finding that the respondent

did not have a well-founded fear of being targeted upon return to Afghanistan

because of his past employment as an interpreter.”

      The BIA rejected Ullah’s argument that the IJ “did not sufficiently consider

the letters” from Nangahar provincial officials, noting that they were


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unauthenticated and “insufficient to establish that [Ullah] has a well-founded fear

of persecution in Afghanistan.” The BIA determined that “[t]o the extent [Ullah]

argues on appeal that the Immigration Judge did not consider his claim of pattern

or practice of persecution, he does not point to any specific evidence that would

satisfy his burden of proof.” The BIA also explained that Ullah’s country

conditions evidence described generally “the fighting between U.S. forces and

insurgent groups” and provided “some evidence that Afghans who work with the

U.S. military are harmed” but did not “demonstrate, however, that persecution is

sufficiently systemic or widespread” to establish “a pattern or practice of

persecution against former interpreters for the U.S. military.”

      The BIA agreed with the IJ that, on the record before it, Ullah had not met

his burden of establishing eligibility for asylum or the more stringent standard for

withholding of removal. The BIA also agreed that Ullah had not shown it was

more likely than not that Ullah would be tortured by terrorist groups or that the

Afghan government would acquiesce to such torture.

                                 II. DISCUSSION

      Ullah’s petition for review challenges only the denial of his claims for

asylum and withholding of removal based on his fear of future persecution on

account of his membership in the particular social group of former U.S. military




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interpreters. 5 In addition, Ullah’s petition for review explicitly waives his asylum

and withholding of removal claims based on an individualized fear of persecution.

Thus, Ullah’s asylum and withholding of removal claims now rely solely on a

pattern-or-practice theory of future persecution.

       As to those future persecution claims, Ullah argues that: (1) the IJ and the

BIA applied the incorrect legal standards and burden of proof with respect to the

statutory national security bars; and (2) the BIA engaged in impermissible fact

finding in addressing Ullah’s pattern-or-practice argument. For reasons that will

follow, we conclude Ullah has not shown legal error in the BIA’s review of his

pattern-or-practice future persecution claims. Because in this Court Ullah does not

contest whether the record evidence shows a pattern or practice of persecution

against former interpreters for U.S. forces in Afghanistan, this ground for denying

Ullah’s applications for asylum and withholding of removal stands. We therefore

decline to address the agency’s alternative ruling that Ullah’s asylum and

withholding of removal claims are precluded by national security bars.




       5
         By failing to raise them in his petition for review, Ullah has abandoned his persecution
claims based on imputed political opinion, his claim for CAT relief, and any evidentiary issues
as to the unauthenticated letters purportedly from Nangarhar officials. See Sepulveda v. U.S.
Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
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A.     Exhaustion of Administrative Remedies

       As a threshold matter, we must address the government’s argument that we

lack jurisdiction to address Ullah’s argument about his pattern-or-practice claim

because he did not exhaust it before the BIA. 6

       We “may review a final order or removal only if . . . the alien has exhausted

all administrative remedies available to the alien as of right.” INA § 242(d)(1), 8

U.S.C. § 1252(d)(1). The exhaustion requirement is jurisdictional and ordinarily

precludes review of a claim the petitioner did not present in his appeal to the BIA.

Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).

       This Court has held, however, that it has jurisdiction to address a petitioner’s

newly raised argument that is “about [an error] displayed in [the BIA’s] decision

not yet in existence.” Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1299 (11th Cir.

2015). In Indrawati, the petitioner argued that the BIA’s decision reflected a lack

of reasoned consideration. Id. at 1289. This Court rejected as “facially

nonsensical” the government’s contention that the petitioner had failed to exhaust

her claim given that the BIA’s decision did not yet exist when she made her

arguments to the BIA. Id. at 1295-96, 1299. As such, the Court concluded that it




       6
        We review our subject matter jurisdiction de novo. Gonzalez-Oropeza v. U.S. Att’y
Gen., 321 F.3d 1331, 1332 (11th Cir. 2003).
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had jurisdiction to address the petitioner’s reasoned-consideration issue. Id. at

1299.

        Like the petitioner in Indrawati, Ullah could not have raised his improper

fact-finding claim before the BIA issued its final decision. Thus, under Indrawati,

Ullah was not required to raise his claim in order to administratively exhaust that

issue. 7

B.      Pattern-or-Practice Claim

        To establish a well-founded fear of future persecution, an asylum applicant

must show that there is a reasonable possibility he will suffer persecution on

account of a protected ground—here membership in a particular social group—if

he returns to his country. Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1200 (11th

Cir. 2009). Generally, an asylum applicant must present “specific, detailed facts

showing a good reason to fear that he or she will be singled out for persecution.”

Al Najjar v. Ashcroft, 257 F.3d 1262, 1287 (11th Cir. 2001) (quotation marks

omitted). However, an applicant need not establish a reasonable possibility that he

will be singled out for persecution “if the applicant instead proves that he is a


        7
         The government cites as persuasive authority other circuits that have concluded that a
petitioner’s improper fact-finding claim must be raised in a motion for reconsideration to be
administratively exhausted. We, however, are bound by Indrawati’s explicit jurisdictional
holding. See Horowitch v. Diamond Aircraft Indus., Inc., 645 F.3d 1254, 1258 (11th Cir. 2011)
(“Under the prior panel precedent rule, we are bound by earlier panel holdings unless and until
they are overruled en banc or by the Supreme Court.”); see also In re Bradford, 830 F.3d 1273,
1278 (11th Cir. 2016) (explaining that we are bound by a prior panel’s explicit jurisdictional
holding).
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member of, or is identified with, a group that is subjected to a ‘pattern or practice’

of persecution in his country of nationality.” Kazemzadeh v. U.S. Att’y Gen., 577

F.3d 1341, 1352 (11th Cir. 2009); see also 8 C.F.R. §§ 208.13(b)(2)(iii),

208.16(b)(2).

       The BIA has stated that persecution of a particular social group must be

“systemic or pervasive” to amount to a “pattern or practice.” See In re A-M-, 23 I.

& N. Dec. 737, 741 (BIA 2005) (quotation marks omitted).8 As the Seventh

Circuit has explained, this “standard is high because once the court finds that a

group was subject to a pattern or practice of persecution, every member of the

group is eligible for [immigration relief].” Ahmed v. Gonzales, 467 F.3d 669, 675

(7th Cir. 2006).

       The BIA must consider all relevant evidence but must “not engage in

factfinding in the course of deciding appeals.” 8 C.F.R. § 1003.1(d)(3)(iv). The

BIA is limited to clear error review of the facts determined by the IJ and cannot

review the evidence de novo. Id. § 1003.1(d)(3)(i). The BIA, however, “may

review questions of law, discretion, and judgment and all other issues in appeals

from decisions of immigration judges de novo.” Id. § 1003.1(d)(3)(ii). A future




       8
        Because Congress had not defined what constitutes a pattern or practice of persecution,
we defer to the BIA’s reasonable definition of this term. See Castillo-Arias v. U.S. Att’y Gen.,
446 F.3d 1190, 1196 (11th Cir. 2006) (applying Chevron deference to the BIA’s definition of
what constitutes a “particular social group”).
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persecution claim presents a mixed question of law and fact, with the fact question

being what harm is likely to happen if the applicant is returned to his country and

the legal question being whether that predicted harm “meet[s] the legal standard

for a well-founded fear of persecution.” Zhu v. U.S. Att’y Gen., 703 F.3d 1303,

1312 (11th Cir. 2013). The BIA may not find the facts pertaining to the well-

founded fear determination or review de novo those facts found by the IJ. Id. at

1311-14. The BIA can reweigh evidence before the IJ but only if it is “through the

prism of clear error.” Id. at 1315.

      Here, the BIA did not engage in impermissible factfinding in reviewing

Ullah’s pattern-or-practice argument. The BIA’s final decision correctly stated

that the standard of review for the IJ’s fact findings was clear error and later

explicitly stated that it found “no clear error” as to the IJ’s fact finding that Ullah

did not have a well-founded fear of future persecution based on his status as a

former interpreter. The BIA addressed Ullah’s argument that the IJ “did not

consider his claim of pattern or practice of persecution” and explained that Ullah

had not pointed to any specific evidence that would meet the demanding

“sufficiently systemic and widespread” standard for a pattern-or-practice claim.

See Kazemzadeh, 577 F.3d at 1351 (stating that the agency is not required to

address every argument or piece of evidence proffered by the petitioner). In

support, the BIA noted that Ullah’s country conditions evidence (which the IJ


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referenced in his decision) showed only general fighting between U.S. forces and

insurgent groups and provided only “some evidence” that Afghans who work for

U.S. forces were harmed and did not provide sufficient evidence of harm to former

interpreters to suggest a viable pattern-or-practice claim.

      Moreover, the BIA did not reject any of the IJ’s fact findings, did not find

any facts in the first instance, and did not reference any evidence upon which the IJ

did not also rely in making the ultimate determination that Ullah did not

demonstrate a well-founded fear of persecution in Afghanistan. For instance, the

IJ noted that Ullah introduced evidence that Afghanistan was in a state of unrest

“at the hands of” the Taliban and other insurgent groups but that the country

reports were vague as to the danger to Ullah as a government supporter and former

linguist. In other words, the facts on which the BIA relied were already in the

record and were mentioned by the IJ in his decision. Having accepted the IJ’s

assessment of the evidence under the proper clear-error standard, the BIA merely

elaborated upon why Ullah’s country conditions evidence was not sufficient to

meet the demanding standard for a pattern-or-practice persecution claim.

      Ullah’s reliance on Zhu is misplaced. In Zhu, the BIA explicitly stated that

its review was de novo and reversed the IJ’s finding that there was a likelihood that

the applicant would be sterilized upon her return to China. See Zhu, 703 F.3d at

1314-16. Here, in contrast, the BIA said it was applying a clear-error standard to


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review the IJ’s finding that Ullah did not have a well-founded fear of persecution,

and the BIA cited facts from the record to affirm the IJ’s decision not to address

explicitly Ullah’s pattern-or-practice claim. In other words, the BIA’s review of

the pattern-or-practice evidence was not de novo, but rather “through the prism of

clear error.” See id. at 1315 (emphasis omitted).

                               III. CONCLUSION

      The BIA did not err in reviewing Ullah’s pattern-or-practice future

persecution claims. As we already have noted, Ullah does not argue that the record

compels a conclusion that there was a pattern or practice in Afghanistan of

persecuting former U.S. military translators. Accordingly, we have no occasion to

disturb the denial of Ullah’s applications for asylum and withholding of removal

on that ground.

      PETITION DENIED.




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