Patel v. Holder ( 2011 )

UNPUBLISHED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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rajnikant Patel, a native of India and a citizen of
Kenya, was first ordered removed in December 2004, following a
merits hearing in immigration court on his application for
asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). The Board of Immigration
Appeals (“Board”) affirmed the order of removal and dismissed
Patel’s appeal. This court granted Patel’s petition for review
in part, and remanded the case to the Board for further
consideration of Patel’s claim under the CAT. See Patel v.
Gonzales, 221 F. App’x 244 (2007) (unpublished). More
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. Patel appealed to the Board, which
affirmed the IJ’s decision 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 to the activity
constituting torture, [has] awareness of such activity and
thereafter breach[es] his or her legal responsibility to
intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7)
(2010).
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 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.” Haoua v.
Gonzales, 472 F.3d 227, 231 (4th Cir. 2007). Because both the
IJ and the Board issued opinions in this case, we will review
both decisions on appeal. Kourouma v. Holder, 588 F.3d 234,
239-40 (4th Cir. 2009).
We hold that substantial evidence supports the
dispositive legal conclusions reached by the IJ, which were
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. The IJ properly relied on Gandziami-Mickhou v. Gonzales,
445 F.3d 351, 358-59 (4th Cir. 2006), to decline to afford
substantial weight to the affidavits and letters written by
Patel’s family members and friends to support this contention.
Moreover, the IJ accurately identified material discrepancies
between these supporting documents that further called into
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, the Board was correct in concluding that
Patel had waived his claim under the Convention Against
Transnational Organized Crime by failing to raise it at his
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. See id.
at 467. Thus, it was not properly before the Board when raised
for the first time in Patel’s second administrative appeal. See
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, we deny the petition for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
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