Rajnikant Patel v. Eric Holder, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed.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

Rajnikant Patel v. Eric Holder, Jr.

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Case: 10-1651

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Date Filed: 03/04/2011

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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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(unpublished).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.

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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

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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.

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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.").

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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

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