                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0111n.06
                                                                                           FILED
                                             No. 10-4477
                                                                                        Jan 31, 2012
                             UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT


JEAN WYCLIF NDAYISABA,                                     )
                                                           )
       Petitioner,                                         )        ON PETITION FOR REVIEW
                                                           )        OF A FINAL ORDER OF THE
                 v.                                        )        BOARD OF IMMIGRATION
                                                           )        APPEALS
ERIC H. HOLDER, JR., Attorney General,                     )
                                                           )
       Respondent.                                         )
                                                           )


BEFORE: MOORE, GRIFFIN, and WHITE, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Petitioner Jean Wyclif Ndayisaba, a native and citizen of Rwanda, applied for asylum,

withholding of removal, and relief under Article III of the Convention Against Torture (“CAT”),

claiming he would be persecuted at the hands of the Rwandan government on account of his status

as a member of the Hutu tribe and Seventh Day Adventist (“SDA”) Church. Ndayisaba testified

before the International Criminal Tribunal for Rwanda (“ICTR”)1 on behalf of a fellow Hutu and

       1
           The Fifth Circuit explained the historical origins of the ICTR as follows:

       Rwanda has been the source of ongoing ethnic conflict between members of the
       majority Hutu and minority Tutsi tribes. In April 1994, President Juvenal
       Habyarimana of Rwanda, a Hutu, was killed when his aircraft crashed due to an
       artillery attack. The crash triggered a wave of violence by the Hutus against the
       Tutsis, which resulted in the deaths of between 500,000 and one-million persons.
       Tutsi rebels triumphed over the Hutus, and the Tutsi-dominated government then
       requested the U.N. to create an international war crimes tribunal. An investigation
       by the U.N. established that the mass exterminations of the Tutsis – motivated by
No. 10-4477
Ndayisaba v. Holder


SDA member accused of genocide. An Immigration Judge (“IJ”) determined that Ndayisaba failed

to establish his eligibility for relief. The Board of Immigration Appeals (“BIA”) dismissed his

appeal, and Ndayisaba petitioned us for review. Because the administrative record does not compel

a conclusion contrary to the one reached by the IJ and BIA, we deny the petition.

                                                  I.

       Petitioner Ndayisaba entered the United States on a non-immigrant visitor visa. He remained

past his authorized period of stay and later filed an application for asylum, withholding of removal,

and relief under CAT, all based upon his fear of being prosecuted, tortured, or killed because he

testified before the ICTR on behalf of a fellow Hutu and SDA member on trial for genocide.

       The Department of Homeland Security subsequently served Ndayisaba with a Notice to

Appear (“NTA”), charging him with removability for remaining in the United States longer than

permitted. His application for relief was referred to the Detroit Immigration Court. At his first court

appearance, Ndayisaba admitted the factual allegations in the NTA, conceded removability, and

renewed his requests for asylum, withholding of removal, and relief under CAT.

       At a merits hearing, Ndayisaba offered his testimony and the testimony of former U.S.

Attorney General Ramsey Clark. Clark served as counsel for Elizaphan Ntakirutimana, on whose



       ethnic hatred – had been planned for months. The Security Council adopted
       Resolution 955, which created the ICTR to prosecute and to punish the individuals
       responsible for the violations in Rwanda and its neighboring states between January 1
       and December 31, 1994.

Ntakirutimana v. Reno, 184 F.3d 419, 421-22 (5th Cir. 1999).

                                                 -2-
No. 10-4477
Ndayisaba v. Holder


behalf Ndayisaba testified before the ICTR. The IJ summarized the testimony and made findings

as follows:

       The respondent is a Rwandan Hutu and a pastor for the Seventh Day Adventist
       (“SDA”) Church. He was born in Kibuye, Rwanda on September 5, 1961. The
       respondent fears returning to his home country based on his belief that he will be
       subjected to torture or death because of his status as a Hutu religious leader who
       testified before the ICTR in support of another Hutu accused of genocide. After
       surviving the 1994 Rwandan genocide he fled with his wife and daughter to the
       neighboring Democratic Republic of Congo (“DRC”). After leaving Rwanda, the
       respondent spent time living and working in DRC, Nigeria, Togo, Burkina Faso,
       Benin, and Ghana. The respondent’s wife and daughter are currently living in Ghana.

       At the end of the 1994 Rwandan genocide, instigated by Hutu rebels, many Hutus
       fled Rwanda fearing retaliation by Tutsis. The respondent began to fear for his and
       his family’s safety upon learning that a group of Catholic Church bishops were killed
       in May of 1994. Additionally, he heard reports that Tutsi rebels planned to kill any
       Hutus they came across and radio broadcasts called for Hutus to surrender or flee.
       The respondent fled the country to DRC with his family on July 17, 1994.

       While in DRC, the respondent worked for an unaccompanied minors camp being run
       by the Adventist Development and Relief Agency. In August of 1994, upon hearing
       that the Rwanda Patriotic Front (“RPF”), the Tutsi led army, had soldiers in the
       refugee camps, the respondent decided to leave DRC for Nigeria out of fear of what
       would happen to him if the RPF learned of his presence at the camp. This fear was
       based on the belief that he would be in danger because he was a high-profile preacher
       in Rwanda and was well known to the government.

       The respondent and his family resided in Nigeria from October 1995 until December
       1996. During this time he was living at the Adventist Seminary of West Africa,
       Ilishan-Remo, but was unable to acquire humanitarian assistance and was forced to
       leave when the seminary realized he was not sponsored by the Rwanda Union
       Mission. The next country the respondent traveled to was Togo, where he lived with
       his family until June 1997. During this time the respondent was able to volunteer and
       work. He also obtained some limited financial assistance (US $50) from the United
       Nations High Commissioner for Refugees (“UNHCR”). The respondent began to
       fear [for] his safety in Togo after several church members criticized his presence in
       Togo, and accused him of participating in the 1994 killings. In June of 1997, the
       respondent left Togo for Burkina Faso.

                                               -3-
No. 10-4477
Ndayisaba v. Holder


       The respondent lived in Burkina Faso until 2002. While there, the respondent
       applied for asylum through UNHCR and received provisional refugee status pending
       [a] determination by the National Commission for Refugees. Also while living in
       Burkina Faso, the respondent was contacted by Ramsey Clark (“Clark”), defense
       counsel for an individual charged with genocide by the ICTR. Clark was looking for
       people who could testify on behalf of his client and asked the respondent if he would
       be willing to help. Although he was scared of the possible consequences of testifying
       before the ICTR, he eventually agreed and made arrangements to leave Burkina Faso
       for Tanzania. When the respondent and his family received their refugee passports
       they were mistakenly under the impression that they had received asylum status in
       Burkina Faso.

       Both the respondent and his wife were called to testify as defense witnesses for
       defendants before the ICTR.[2] In order to protect their identities so they would not
       be in danger as a result of their testimonies both were given witness numbers: the
       respondent was Witness # 5 and his wife was Witness # 22. During his testimony,
       however, the prosecutor, in a surprise move, asserted that the respondent had
       participated in genocide and was guilty of raping three women. This, coupled with
       information about his background that was revealed during his testimony, led to news
       reports in Africa that a “young Adventist preacher” and star of the church had been
       accused of genocide by the ICTR prosecutor. After he gave his testimony the
       respondent was fearful of what would happen to him because he knew of many SDA
       preachers who had been accused of genocide and jailed in Rwanda. The respondent
       and his family hoped to stay in a safe house in Tanzania until they could be assured
       further protection by the ICTR, but shortly after they gave their testimony they were
       forced to leave. Because the respondent refused to leave the safe house without
       assurances that he would be protected, he was handcuffed and driven to the airport.
       The chief of the Witness and Victims Support Section for the ICTR treated the
       respondent and his family in a hostile manner, did not allow them to take their
       possessions with them when they left the safe house, and threatened to send them
       back to Rwanda, calling them interahamwe, a military group known for participating
       in the genocide. They were flown back to Burkina Faso, but once they returned they
       no longer had the travel documents issued to them before leaving for Tanzania. Out
       of fear that they would be sent back to Rwanda by the government of Burkina Faso,
       they fled to Benin.



      2
        The defendants were Ntakirutimana and his son. Both were found guilty of aiding and
abetting genocide, and Ntakirutimana was later sentenced to ten years in prison.

                                               -4-
No. 10-4477
Ndayisaba v. Holder


       Once in Benin, the respondent again sought asylum status through the UNHCR. The
       UNHCR advised him that he would have to return to Burkina Faso because it was the
       first place that he received a provisional UNHCR refugee document. The respondent
       continued to fear what might happen to him if he were forced to return to Rwanda.
       On the advice of Clark, who suggested he would be safe in Ghana, the respondent
       took his family there.

       The respondent and his family arrived in Ghana in July of 2002. The respondent
       remained there until entering the United States on December 8, 2007. In Ghana, the
       respondent found work at an SDA church and served as the Accra Tertiary
       Institutions Chaplain in charge of SDA students at several Ghanaian educational
       facilities. While he was living in Ghana, some members of the respondent’s church
       were critical of allowing an SDA pastor “accused of genocide” to live and work
       among them. The respondent and his family continued to live in fear despite having
       secured steady employment and having lived in Ghana without incident for 5 years.
       After his aunt died in 2007, the respondent decided to travel to the United States to
       visit his aunt’s husband and children. He was able to obtain a non-immigrant visa
       to enter the United States and upon arriving here was issued an 1-94 set to expire on
       June 7, 2008. After arriving in the United States, the respondent traveled to
       Michigan in search of a refugee shelter willing to help him obtain asylum. He
       reached the Freedom House on December 16, 2007. The respondent applied for
       asylum on June 27, 2008.

       The respondent’s wife and daughter are currently living in Ghana under expired
       passports. The respondent fears worsening conditions for his family because he has
       since lost his job as a pastor for the SDA in Ghana and the church has asked his wife
       to leave the house she is currently living in. Additionally, according to a letter from
       a colleague, his wife has received several threatening phone calls from unknown
       persons.

       The IJ denied Ndayisaba’s requests for relief after concluding that he had failed to establish

eligibility. The IJ recognized that criminal prosecution may serve as a pretext for persecution where

it is motivated by a protected ground and the punishment is sufficiently serious. Although Ndayisaba

offered evidence that those who testified in support of persons accused of genocide had been arrested

and charged with genocide themselves, the IJ found “no evidence tending to show a nexus between


                                                -5-
No. 10-4477
Ndayisaba v. Holder


testimony as a witness and being arrested.” She explained that “[i]t is equally plausible that the

Rwandan government had evidence supporting the commission of crimes of genocide by the

individuals who were arrested.” She noted also that Ndayisaba had not been charged with any crime,

and that, aside from the baseless allegations made by the ICTR prosecutor during cross-examination,

“there is no suggestion that the Rwandan government suspects him of wrong-doing or plans to bring

charges against him.” Finally, the IJ declined to adopt the view that “prosecuting crimes of genocide

is merely a pretext for persecution based on [a protected ground,]” reasoning that “[e]very country

has a legitimate interest in investigating and prosecuting serious violent crimes perpetrated on its soil

and against its people.” She denied Ndayisaba’s requests for withholding of removal and relief

under CAT for the same reasons.

        The BIA affirmed. It agreed with the IJ that there was no showing that those arrested after

testifying were arrested because they testified. And it found nothing in the record, except for the

ICTR prosecutor’s allegations, showing that the Rwandan government suspects Ndayisaba of any

wrongdoing or intends to charge him with a crime. It added that the ICTR prosecutor was

reprimanded for making the baseless allegations; that Ndayisaba was permitted to depart Tanzania

– where the ICTR convenes – without incident and never experienced problems with any

government official, Rwandan or otherwise; that his wife also testified in support of the defense, and,

apart from receiving vague, threatening phone calls from unidentified individuals in Ghana, where

she resides, had suffered no harm; and that no attempt had been made to extradite his wife to

Rwanda.


                                                  -6-
No. 10-4477
Ndayisaba v. Holder


        Ndayisaba timely petitioned for review.

                                                    II.

        “Because the BIA adopted and supplemented the IJ’s decision, we review the opinion of the

IJ in conjunction with the BIA’s additional comments and discussion.” Cruz-Samayoa v. Holder,

607 F.3d 1145, 1149 (6th Cir. 2010). We review issues of law de novo and consider the factual

findings of the BIA using the substantial-evidence standard. Khalili v. Holder, 557 F.3d 429, 435

(6th Cir. 2009). The ultimate determination whether an alien has established past persecution or a

well-founded fear of future persecution is reviewed under the substantial-evidence standard.

Japarkulova v. Holder, 615 F.3d 696, 702 (6th Cir. 2010). Under this deferential standard of review,

agency findings “are conclusive unless any reasonable adjudicator would be compelled to conclude

to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see Khalili, 557 F.3d at 435; see also Yu v. Ashcroft, 364

F.3d 700, 702 (6th Cir. 2004) (noting that 8 U.S.C. § 1252(b)(4)(B) “basically codifies the Supreme

Court’s substantial evidence standard”). We may not reverse simply because we would have decided

the matter differently. Khalili, 557 F.3d at 435.

        “The disposition of an application for asylum involves a two-step inquiry: (1) whether the

applicant qualifies as a refugee as defined in 8 U.S.C. § 1101(a)(42)(A), and (2) whether the

applicant merits a favorable exercise of discretion by the Attorney General.” Cruz-Samayoa, 607

F.3d at 1150 (citation and internal quotation marks omitted). “To qualify as a refugee, the applicant

must establish that he or she has suffered past persecution on the basis of race, religion, nationality,

social group, or political opinion; or show that he or she has a well-founded fear of [future]


                                                 -7-
No. 10-4477
Ndayisaba v. Holder


persecution on one of those same bases.” Id. (citation, internal quotation marks, and alterations

omitted); see also 8 C.F.R. § 1208.13(b).

       To demonstrate a well-founded fear of future persecution, the alien must show that

“‘persecution is a reasonable possibility’” should he be sent back to his home country. Perkovic v.

INS, 33 F.3d 615, 620 (6th Cir. 1994) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987)).

The concept of well-founded fear “has both a subjective and an objective component: an alien must

actually fear that he will be persecuted upon return to his country, and he must present evidence

establishing an ‘objective situation’ under which his fear can be deemed reasonable.” Id. at 620-21.

An alien need not show that he “probably will be persecuted if he is deported; ‘[o]ne can certainly

have a well-founded fear of an event happening when there is less than a 50% chance of the

occurrence taking place.’” Id. (quoting Cardoza-Fonseca, 480 U.S. at 431). A well-founded fear

of future persecution can be based on either a likelihood of harm specifically targeted at the alien or

a “pattern or practice” of persecution of others similarly situated. 8 C.F.R. § 208.13(b)(2)(iii); see

Akhtar v. Gonzales, 406 F.3d 399, 404 (6th Cir. 2005).

       We have recognized that criminal prosecution can amount to persecution.                     See

Cruz-Samayoa, 607 F.3d at 1151. “A petitioner may . . . establish that prosecution reaches the level

of persecution if the individual can demonstrate that the prosecution or criminal investigation ‘was

actually pretext for persecution’ on account of one of the INA’s enumerated grounds.” Id. (quoting

Lakaj v. Gonzales, 158 F. App’x 678, 683 (6th Cir. 2005)). We consider the “substance and context”

of the law an alien’s native country is attempting to enforce to determine whether the government


                                                 -8-
No. 10-4477
Ndayisaba v. Holder


is legitimately attempting to prosecute criminal activity, or is instead seeking only to persecute

persons on account of a protected ground. Id. Prosecution under a general law can constitute

persecution if the punishment is disproportionately severe to the offense. Id. at 1152.

        We note first that Ndayisaba has abandoned any claim of past persecution by failing to raise

the issue in his appellate brief. See Terry v. Tyson Farms, Inc., 604 F.3d 272, 280 n.5 (6th Cir.

2010). Thus, with respect to asylum, we need only consider whether the record compels a finding

that Ndayisaba established a reasonable, well-founded fear of future persecution. We find that

substantial evidence supports the determination that his fear is not well-founded.3

        Ndayisaba allegedly fears being arrested and charged with genocide upon arrival in Rwanda

because he testified before the ICTR on behalf of a defendant charged with genocide. Although his

application for relief indicates that he seeks relief based on all five protected grounds, his appellate

brief argues persecution only on account of his “ethnicity and testimony before the ICTR in support

of a Hutu Seventh Day Adventist Pastor accused of genocide.” Counsel further clarified at oral

argument that Ndayisaba fears persecution solely on account of his membership in a particular social

group, which we assume consists of members of the Hutu tribe who testified on behalf of those

accused of genocide. Neither the IJ nor the BIA conducted any analysis of whether this asserted

group qualifies as a “particular social group,” and the parties do not address the issue in their



       3
        The IJ found Ndayisaba credible, which means he established the subjective component of
his burden. See Akhtar, 406 F.3d at 404 (“The subjective fear component turns largely upon the
applicant’s own testimony and credibility.” (quoting Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th
Cir. 2004))). The BIA did not disturb this finding.

                                                 -9-
No. 10-4477
Ndayisaba v. Holder


appellate briefs. We assume, without deciding, that Ndayisaba’s asserted social group is sufficiently

particularized to warrant recognition as a “particular social group” for purposes of asylum and

withholding of removal. See generally Kante v. Holder, 634 F.3d 321, 327 (6th Cir. 2011); In re A-

M-E & J-G-U, 24 I. & N. Dec. 69, 74 (BIA 2007).

       Ndayisaba asserts that any criminal prosecution would be a mere pretext for persecution on

account of his past testimony before the ICTR. The IJ rejected this claim. She found no evidence

to support the view that prosecuting the crime of genocide in Rwanda serves as a pretext for

persecuting defense witnesses for their prior testimony. To be sure, Ndayisaba did offer evidence

showing that those who testified were themselves arrested and prosecuted, but the IJ found no

evidence of a connection between testifying and being arrested and prosecuted. She found it equally

plausible that authorities had legitimate reason to believe that those arrested and charged after

testifying had themselves participated in genocide.

       Contrary to the IJ’s conclusion, however, there is record evidence demonstrating that some

persons who testified for the defense were later arrested, despite a lack of evidence to support the

arrest and detention. This suggests that they were arrested merely as a pretext for persecution on

account of their testimony.

       Additionally, Ndayisaba offered an amicus brief filed by the Human Rights Watch (“HRW”)

in an unrelated ICTR prosecution arguing against the ICTR prosecutor’s request to have the matter

transferred to a Rwandan court. The HRW argued that the accused would not get a fair trial in

Rwanda in part because potential defense witnesses would be deterred from testifying out of fear of


                                               - 10 -
No. 10-4477
Ndayisaba v. Holder


being prosecuted by the Rwandan government for harboring “genocidal ideology.” The brief

indicates that witnesses who appeared for the defense in proceedings before the ICTR were arrested

and detained shortly after they returned to Rwanda:

       In several cases documented by HRW, witnesses who have appeared for the defence
       at the ICTR were arrested after their return to Rwanda. In one case, the witness was
       detained without charge for two years and then released. In another case, in 2005,
       where a witness was himself falsely accused of genocide, the prosecutor general
       acknowledged in writing that there was no proof, although as of this writing [on
       January 3, 2008,] the person is still detained. Although these witnesses and others
       had testified as protected witnesses, many in their communities knew of their
       testimony and attributed their arrests to that testimony.

There is also evidence that the fear harbored by potential defense witnesses is so strong that many

forego testifying on behalf of those they know to be innocent. The HRW brief illustrates one

example:

       In the last two months alone, HRW has documented four cases of persons who
       refused, out of fear, to testify in defence of persons whom they knew to be innocent
       of the charges against them. In a recent case, a man who was too frightened to testify
       in defence of a person who had saved his life and that of more than ten family
       members broke down in tears while describing his shame to a HRW researcher.

Ramsey Clark testified regarding the difficulty in locating persons who could testify on behalf of his

clients because many feared that testifying would subject them to arrest, detention, torture, and

possible death at the hands of the Rwandan government simply for testifying.

       Despite this evidence of some nexus between testifying and criminal prosecution, however,

it is equally plausible, as the IJ concluded, that many, if not most, arrests and detentions of ICTR

defense witnesses are legitimate. Indeed, as the government emphasizes on appeal, the HRW amicus

brief expressly “makes no judgments on the merits of the arrests or indictments” of ICTR defense

                                                - 11 -
No. 10-4477
Ndayisaba v. Holder


witnesses who returned to Rwanda. And the fact that many witnesses were arrested shortly after they

testified might suggest that their testimony provided the necessary evidence to support their arrest

and prosecution (though it might also suggest that the witnesses were arrested and charged simply

because they testified). Given this evidence and the different inferences one may permissibly draw

from it, the IJ was permitted to conclude that Ndayisaba had failed to demonstrate that Rwanda uses

baseless arrest, detention, and prosecution as a method of persecuting defense witnesses in genocide

cases.

         The IJ also determined that Ndayisaba’s fear was not well-founded because, apart from his

own fear, there was no other evidence that he, specifically, would be arrested and prosecuted if he

returned to Rwanda. She noted a lack of evidence demonstrating that the Rwandan government

suspects him of any wrongdoing or plans to bring charges against him. She noted also that he has

not been indicted for any crime by the Rwandan government. The BIA added that Ndayisaba’s wife,

who also testified on behalf of Ntakirutimana, has not been arrested or charged with a crime and

“continues to live in Africa with her daughter.”

         But this reasoning is faulty. The fact that Ndayisaba has not been indicted does not foreclose

a reasonable probability that he will be once he returns to Rwanda. Nor does it necessarily make it

less likely that he will be indicted upon return.4 Also, the fact that his wife continues to live safely

in Ghana, thousands of miles from Rwanda, does not demonstrate that he will not be prosecuted if



         4
        However, Ndayisaba’s counsel admitted at oral argument that Rwanda has indicted persons
in absentia, making it less likely that Rwanda intends to indict him if he returns.

                                                 - 12 -
No. 10-4477
Ndayisaba v. Holder


he returns to Rwanda. Cf. Lim v. INS, 224 F.3d 929, 935 (9th Cir. 2000) (holding that the ongoing

safety of family members in an alien’s country of origin mitigates a well-founded fear when family

members are “similarly situated to the applicant and thus presumably subject to similar risk”);

accord Yang Lin v. Holder, 320 F. App’x 428, 435 n.5 (6th Cir. 2009) (per curiam).

       Nevertheless, the record does not compel the conclusion that Ndayisaba’s fear of being

baselessly arrested, detained, and prosecuted when he returns to Rwanda is well-founded. In

addition to the fact that he has not been charged with genocide, there is further support in the record

for the IJ’s conclusion. One of Ndayisaba’s co-directors at the SDA complex in Mugonero, over

which Ntakirutimana presided, has not been arrested, detained, or charged with genocide, despite

his close affiliation with Ntakirutimana during the 1994 genocide. Rather, he is working as President

of the SDA East Rwanda Association in Rwanda’s capital city. And although another co-director

has been arrested and is soon to be tried for genocide (as of Ndayisaba’s immigration merits

hearing), there is no indication that the co-director testified before the ICTR on behalf of

Ntakirutimana, or, if he did, that his testimony was the motivation behind the arrest and prosecution.

       But even if the record compelled the conclusion that Ndayisaba would be arrested and

charged with genocide were he to return to Rwanda, it does not also compel concluding that a

prosecution would be a mere pretext for persecuting him on account of his testimony before the

ICTR and his protected social group status. Ndayisaba potentially implicated himself when he

testified on behalf of Ntakirutimana, whom the ICTR later determined was guilty of aiding and

abetting genocide. And “neither the BIA nor the federal court of appeals has the jurisdiction to


                                                - 13 -
No. 10-4477
Ndayisaba v. Holder


determine whether [Ndayisaba] is, in fact, guilty of the [potential] charges levied, and the mere fact

that he proclaims innocence is an insufficient basis upon which to determine that the charges are

pretextual.” Cruz-Samayoa, 607 F.3d at 1152.

        Despite record support for a contrary view, the record does not compel the conclusion that

Ndayisaba has a reasonable, well-founded fear of being baselessly prosecuted on account of his

earlier testimony on behalf of one accused of genocide.5

                                                 III.

        Ndayisaba offers for our consideration additional information that he contends supports his

requests for relief but was apparently unavailable at his merits hearing. He has not made clear

exactly what he wants us to do with this information, suggesting at times that we should consider

it directly in these proceedings and at other times that we should remand the matter so the BIA can

consider it.

        We cannot consider this newly offered information in the first instance. The statutory

provision establishing the scope of judicial review of a final order of removal provides that “the

court of appeals shall decide the petition only on the administrative record on which the order of

removal is based.” 8 U.S.C. § 1252(b)(4)(A) (emphasis added); see Bejjani v. United States, 271

F.3d 670, 676 (6th Cir. 2001) (“[T]his Court is prohibited [in immigration cases] from considering


        5
        Because Ndayisaba cannot carry his burden with respect to asylum, he necessarily cannot
do so with respect to withholding of removal. Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005).
As for Ndayisaba’s CAT claim, we find that substantial evidence supports the BIA’s determination
that Ndayisaba failed to demonstrate that it is more likely than not that he will be tortured if he is
removed to Rwanda. See 8 C.F.R. § 1208.16(c)(2).

                                                - 14 -
No. 10-4477
Ndayisaba v. Holder


facts not in the administrative record . . . .”), abrogated on other grounds by Fernandez-Vargas v.

Gonzales, 548 U.S. 30 (2006); see also 28 U.S.C. § 2347(a) (“Unless determined on a motion to

dismiss, petitions to review orders reviewable under this chapter are heard in the court of appeals on

the record of the pleadings, evidence adduced, and proceedings before the agency, when the agency

has held a hearing whether or not required to do so by law.”). Therefore, we cannot consider the new

facts, and we have not done so.

        Nor can we remand the matter to the BIA so it can consider the new information. The INA’s

review provisions specifically forbid it: “Judicial review of a final order of removal . . . is governed

only by chapter 158 of Title 28 [28 U.S.C. §§ 2341-2351], except as provided in subsection (b) of

this section and except that the court may not order the taking of additional evidence under section

2347(c) of such title.” 8 U.S.C. § 1252(a)(1) (emphasis added); see Fang Huang v. Mukasey, 523

F.3d 640, 656 (6th Cir. 2008) (“[W]e lack a statutory basis for remanding her case or for

supplementing the record.”).

        Ndayisaba is not foreclosed from presenting the new information in support of his application

for relief; it is just that we cannot consider it or order the BIA to do so. He must follow the proper

procedure for presenting the evidence, which involves filing a motion to reopen his proceedings

before the BIA. See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c); Japarkulova, 615 F.3d at 702.

There are no time limitations for moving to reopen based on changed circumstances in the alien’s

home country so long as the evidence is material and could not have been discovered or presented

previously. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).


                                                 - 15 -
No. 10-4477
Ndayisaba v. Holder


                                              IV.

      For these reasons, we deny the petition for review.




                                             - 16 -
