Rajnikant Patel v. Eric Holder, Jr.


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A72-001-418 Copies to all parties and the district court/agency. [998537894] [10-1651]

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Rajnikant Patel v. Eric Holder, Jr. Doc. 0 Case: 10-1651 Document: 30 Date Filed: 03/04/2011 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1651 RAJNIKANT PATEL, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: January 28, 2011 Decided: March 4, 2011 Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges. Petition denied by unpublished per curiam opinion. James Feroli, IMMIGRATION AND REFUGEE APPELLATE CENTER, Alexandria, Virginia, for Petitioner. Tony West, Assistant Attorney General, Emily Anne Radford, Assistant Director, Kohsei Ugumori, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. Dockets.Justia.com Case: 10-1651 Document: 30 Date Filed: 03/04/2011 Page: 2 PER CURIAM: Rajnikant Patel, a native of India and a citizen of Kenya, was first ordered removed in December 2004, following a merits asylum, hearing in immigration of court and on his application under for the withholding removal, protection Convention Against Torture ("CAT"). The Board of Immigration Appeals ("Board") affirmed the order of removal and dismissed Patel's appeal. in part, and This court granted Patel's petition for review remanded the case to the Board for further consideration of Patel's claim under the CAT. Gonzales, 221 F. App'x 244 (2007) See Patel v. More (unpublished). particularly, this court remanded the case for consideration of whether the Kenyan government would acquiesce in Patel's torture by a private actor, a human trafficker and smuggler identified as "Raju" and, as a necessary predicate, whether the harm Patel feared rose to the level of torture. Id. at 245-46 & n.2. The Board in turn remanded to the immigration court for further proceedings. The Immigration Judge ("IJ") held another hearing and accepted additional evidence and argument, after which the IJ rejected Patel's CAT claim and entered another order of removal. affirmed the IJ's decision Patel appealed to the Board, which and dismissed his appeal. This petition for review timely followed. 2 Case: 10-1651 Document: 30 Date Filed: 03/04/2011 Page: 3 To qualify for protection under the CAT, a petitioner must demonstrate that "it is more likely than not that he or she would be tortured if removed to the proposed country of removal." 8 C.F.R. 1208.16(c)(2) (2010). Specifically, a petitioner must show that he will be subject to "severe pain or suffering, whether physical or mental . . . by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." 8 C.F.R. 1208.18(a)(1) (2010); see Saintha v. Mukasey, 516 F.3d 243, 246 & n.2 (4th Cir. 2008). The applicant need not prove that he would be tortured on account of a protected ground. Camara v. Ashcroft, 378 F.3d 361, 371 (4th Cir. 2004). Under the "acquiescence" theory, it is sufficient for the applicant to show "that the public official, prior of to such the activity and to constituting thereafter torture, breach[es] [has] his awareness or her activity legal responsibility intervene to prevent such activity." (2010). 8 C.F.R. 1208.18(a)(7) This court reviews for substantial evidence the denial of relief under the Convention Against Torture. Lizama v. Holder, __ F.3d __, 2011 WL 149874, at *7 (4th Cir. Jan. 19, 2011); Dankam v. Gonzales, 495 F.3d 113, 124 (4th Cir. 2007). In conducting substantial evidence review, this court treats the Board's findings of fact "as conclusive 3 unless the evidence Case: 10-1651 Document: 30 Date Filed: 03/04/2011 Page: 4 before the BIA was such that any reasonable adjudicator would have been compelled to conclude to the contrary." Gonzales, 472 F.3d 227, 231 (4th Cir. 2007). Haoua v. Because both the IJ and the Board issued opinions in this case, we will review both decisions on appeal. 239-40 (4th Cir. 2009). We dispositive hold legal that substantial reached evidence by the supports IJ, which the were Kourouma v. Holder, 588 F.3d 234, conclusions affirmed by the Board. First, Patel's evidence does not compel the conclusion that it is more likely than not that he would be subject to conduct rising to the level of torture if returned to Kenya. 445 The IJ properly relied on Gandziami-Mickhou v. Gonzales, 351, 358-59 to (4th the Cir. 2006), to decline letters to afford by F.3d substantial weight affidavits and written Patel's family members and friends to support this contention. Moreover, between the IJ accurately identified material further discrepancies called into these supporting documents that question the veracity of that evidence. Substantial evidence also supports the IJ's finding, affirmed by the Board, that Patel failed to establish that the alleged torture would be performed with the Kenyan government's acquiescence. We have reviewed the record evidence and conclude that it simply does not compel a contrary conclusion. 4 Case: 10-1651 Document: 30 Date Filed: 03/04/2011 Page: 5 Finally, Patel had waived the his Board claim Crime was correct the in concluding that under by Convention to raise it Against at his Transnational Organized failing administrative hearing. See In re R-S-H-, 23 I. & N. Dec. 629, 638 (B.I.A. 2003) (explaining Board would not consider on appeal claim of error that was not raised at administrative hearing); In re Edwards, 20 I. & N. Dec. 191, 196-97 n.4 (B.I.A. 1990) (same). Consideration of this claim was also precluded by the mandate rule, as it was not presented to this court in Patel's first petition for review. See Doe v. Chao, 511 F.3d 461, 465 (4th Cir. 2007) (explaining that the mandate rule dictates that "any issue that could have been but was not raised on appeal is waived and thus not remanded" (internal quotation marks omitted)). This argument was available to Patel at the time of his first petition for review, as it does not rely on a change in the law, present newly discovered evidence, or purport to correct a blatant error to prevent a serious injustice. at 467. See id. Thus, it was not properly before the Board when raised See for the first time in Patel's second administrative appeal. Volvo Trademark Holding Aktiebolaget v. Clark Mach. Co., 510 F.3d 474, 481 (4th Cir. 2007) ("[U]nder the mandate rule a remand proceeding is not the occasion for raising new arguments or legal theories."). 5 Case: 10-1651 Document: 30 Date Filed: 03/04/2011 Page: 6 Accordingly, dispense with oral we deny the petition the for facts review. and We legal argument because contentions are adequately presented in the materials before the court and argument would not aid the decisional process. PETITION DENIED 6

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