     Case: 18-60745       Document: 00515181943         Page: 1     Date Filed: 10/31/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                     No. 18-60745                            FILED
                                   Summary Calendar                   October 31, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
ANUJAN THIRULOGACHANDRAN,

                                                  Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A216 208 780


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Anujan Thirulogachandran, a native and citizen of Sri Lanka and an
ethnic Tamil, petitions for review of the Board of Immigration Appeals’ (BIA)
order dismissing his appeal of the Immigration Judge’s (IJ) decision denying
his claims for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). He claims: the IJ erred by failing to
consider his asylum claim under the “pattern or practice” regulations, 8 C.F.R.
§ 208.13(b)(2)(iii) (2019) (applicant not required to provide evidence of

       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                     No. 18-60745

reasonable probability of his being singled out for persecution if applicant
establishes both pattern or practice of persecution of group based on specified
traits and his inclusion and identification with that group); substantial
evidence does not support the IJ’s adverse credibility determination; and the
BIA legally and factually erred in denying relief under the CAT.
       In considering the BIA’s decision (and the IJ’s decision, to the extent it
influenced the BIA’s decision), our court reviews legal conclusions de novo;
factual findings, for substantial evidence. Orellana-Monson v. Holder, 685
F.3d 511, 517–18 (5th Cir. 2012) (citations omitted). On substantial-evidence
review, a factual finding will not be disturbed unless petitioner demonstrates
“that the evidence is so compelling that no reasonable fact-finder could reach
a contrary conclusion”. Id. at 518 (citation omitted).
       Although Thirulogachandran claims the IJ erred by failing, sua sponte,
to consider a pattern-or-practice claim, our review is constrained to the BIA’s
decision because it rejected this claim without being influenced by any IJ
findings. See id. at 517 (citation omitted). With respect to that decision, he
claims only that the BIA’s rejection was impermissible fact-finding.
       Our court, however, lacks jurisdiction to consider this claim. For our
court to have jurisdiction, petitioner must first exhaust his administrative
remedies with respect to a claim or issue. 8 U.S.C. § 1252(d)(1); Roy v. Ashcroft,
389    F.3d   132,     137   (5th   Cir.   2004)   (citations   omitted).     Because
Thirulogachandran could have administratively exhausted his claim of
impermissible BIA fact-finding by filing a motion to reconsider with the BIA,
his failure to do so deprives our court of jurisdiction to review the issue. Omari
v. Holder, 562 F.3d 314, 320–21 (5th Cir. 2009).
       Regarding Thirulogachandran’s claim that substantial evidence does not
support the adverse credibility determination on which asylum and
withholding of removal were denied, the fact-finder may rely on “any

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                                    No. 18-60745

inconsistency or omission”, supported by the “totality of the circumstances”, in
so determining. See Singh v. Sessions, 880 F.3d 220, 225 (5th Cir. 2018)
(citation omitted). His testimony contradicted the police report and supporting
letter he provided. Although he claims translation errors and his lack of
understanding of the questions asked him explain these inconsistencies, he has
offered no evidence “so compelling that no reasonable fact-finder could have
made an adverse credibility ruling”. See id. at 226.
      Regarding      his   CAT     claims       based    on       his   being   a   Tamil,
Thirulogachandran’s failure to raise, in a motion to reconsider, his claim that
the BIA engaged in impermissible fact-finding regarding mental torture
similarly bars appellate jurisdiction. Omari, 562 F.3d at 320–21. He next
disagrees with the BIA’s factual determinations (concerning his ability to
relocate within Sri Lanka and improvements in relations between the Sri
Lankan government and Tamil citizens) but fails to show any evidence
“compelling” reversal.      See Orellana-Monson, 685 F.3d at 518 (citation
omitted). He also claims the BIA legally erred by failing to apply the factors
relevant to an asylum internal-relocation analysis, see Matter of M-Z-M-R, 26
I & N. Dec. 28 (BIA 2012), but he fails to explain how the factors show he could
not have relocated, see 8 C.F.R. § 1208.16(c)(3)(ii) (2019) (requiring
consideration of evidence applicant could have relocated within country of
removal). In any event, the BIA considered his siblings’ having avoided harm
by relocating within the same town as evidence he could similarly relocate and
had, accordingly, not carried his burden to show “it is more likely than not that
he . . . would be tortured . . .”. Id. § 1208.16(c)(2).
      DISMISSED IN PART; DENIED IN PART.




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