Budhwani v. Gonzales ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT January 5, 2006
Charles R. Fulbruge III
Clerk
No. 05-60087
Summary Calendar
JAHANGIR NAZARALI BUDHWANI,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
(A78 141 763)
Before BARKSDALE, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Jahangir Nazarali Budhwani seeks review of the Board of
Immigration Appeals’ (BIA) affirmance of the denial by an
Immigration Judge (IJ) of his petition for withholding of removal
under 8 U.S.C. § 1231(b)(3)(A) and withholding under Article 3 of
the United Nations Convention Against Torture (CAT). Budhwani also
contests the IJ’s denial of his requests for a continuance in the
light of his pending labor certification application.
*
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this opinion should not be published and is not precedent except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.
On 16 October 2003, the IJ denied Budhwani’s petition for
withholding; the BIA affirmed, essentially without additional
analysis, on 24 January 2005. Previously, on 6 May and 16 October
2003, the IJ had orally denied two motions for continuance to allow
Budhwani’s pending labor certificate application to proceed.
Budhwani was born in India on 18 February 1964; he arrived in
the United States, illegally, on or about 22 July 1996. Budhwani
is married with one child; his daughter is a United States citizen;
his wife is a native and citizen of Pakistan who also entered the
United States illegally.
Budhwani’s entire family is Shi’a Muslim. While in the United
States, Budhwani converted to the Sunni faction of Islam. He
claims that, if he returns to India: (1) his family will shun him
because of his new faith; (2) Hindus will persecute him because he
is Sunni; and (3) the Sunni community will not trust him because he
is a convert, and will therefore not be willing/able to protect
him.
Budhwani also claims: the Shi’a community in India has no
problems because they follow Hindu customs and blend in with their
Hindu neighbors, but the same does not apply to Sunnis. He says
that, as a Sunni, his faith will not allow him to do certain things
he would need to do to survive in India. For example, Budhwani
would no longer be able to bribe officials, which he claims is a
customary Shi’a practice; and, his wife would not be willing to
change her dress. Budhwani also says he will be persecuted because
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he is married to a Pakastani woman. He claims his wife will not be
able to live with him in India because she would be identified as
Pakistani and seen as a traitor, and that his religion does not
allow him to live apart from her. Budhwani states that, in India,
his daughter will be persecuted because she is a Shi’a convert and
the daughter of a Pakastani.
Budhwani has Muslim friends who have been beaten or detained
by the police on account of their religion. In addition, the State
Department Country Reports on Human Rights Practices in India for
the Year 2002 states that violence by Hindu extremists against
Muslims and other religious minorities is not uncommon, and that it
often goes unpunished by the state and local governments charged
with maintaining law and order. That report also states the
central government generally respects religious freedom. Although
Budhwani had two interactions with the police in India, neither was
related to his religion, and neither resulted in detention or
persecution of any kind.
Budhwani claims: (1) the evidence compels reversal of the
decision denying him withholding of removal and withholding under
the CAT; and (2) we should reverse denials of his motions for a
continuance. Ordinarily, we review only BIA decisions; we consider
the IJ decision only if it impacted the BIA decision. Efe v.
Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002). Here, we review the
IJ’s findings because the BIA affirmed, essentially without
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additional analysis, the IJ decision. We must uphold the IJ
decision unless the evidence compels the opposite outcome. See
Jukic v. I.N.S., 40 F.3d 747, 749 (5th Cir. 1994).
An applicant is eligible for withholding of removal if he
shows a clear probability of persecution. Rojas v. I.N.S., 937 F.2d
186, 189 (5th Cir. 1991). Persecution is defined as harm or
suffering inflicted to punish a person for holding a certain belief
or characteristic. Faddoul v. I.N.S., 37 F.3d 185, 188 (5th Cir.
1994). An applicant for withholding of removal must present
specific, detailed facts, showing he was singled out for
persecution, as well as a particularized connection between the
applicant’s race, religion, nationality, or other listed
characteristic. Ganjour v. I.N.S., 796 F.2d 832, 837 (5th Cir.
1986). The Attorney General must grant withholding of removal if
an applicant shows a clear probability of persecution. Id.For withholding under the CAT, the applicant must show it is
more likely than not that he will be tortured if sent back to his
home country. Ontunez-Torsios v. Ashcroft, 303 F.3d 341, 354 (5th
Cir. 2002). “Torture is an extreme form of cruel and inhuman
treatment.” 8 C.F.R. § 208.18(a)(2). It need not be based on a
particular view or characteristic. Amanfi v. Ashcroft, 328 F.3d
719, 725 (3d Cir. 2003). Acts are not considered torture under the
CAT unless they are done by, or with the approval of, the
government. 8 C.F.R. § 208.18(a)(1).
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Budhwani testified: if returned to India, he will be
turned away by his family and no longer protected from the Shi’a
community; he would be targeted by that community as a traitor.
When asked what the Shi’a community would do to target him,
Budhwani testified that, if there were Hindu-Muslim riots, he would
be turned over by Shi’a leaders to the police as a scapegoat. He
testified that he would also be persecuted by Hindus because he is
a Muslim. Although the IJ did not make an adverse credibility
determination, he did hold that Budhwani failed to demonstrate a
clear probability of persecution if he returns to India.
The State Department report on India demonstrates some level
of religious persecution of Muslims. Budhwani, however, has never
been persecuted. Although he claims he will no longer be welcomed
by his family or protected from the Shi’a leaders, the record does
not compel a determination that Budhwani has established a clear
probability of persecution.
In addition, Budhwani contends the IJ improperly failed to
consider India’s country conditions when denying withholding of
removal. The IJ must consider country conditions, particularly
when addressing eligibility for relief under the CAT. Efe, 293
F.3d at 903.
The IJ did not fail to consider conditions inside India. The
IJ’s opinion discusses: (1) that state and local governments in
India only partially respect religious freedoms; (2) that Budhwani
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testified that Shi’a leaders have good relationships with the
authorities that Sunnis do not have; and (3) that Muslims are a
minority in India. The IJ weighed those factors against: (1)
India’s central government generally respecting religious freedoms;
and (2) Budhwani having previously lived in India without any
problems. The IJ concluded Budhwani failed to establish he was
likely to be persecuted or tortured in India. Again, the record
does not compel the opposite conclusion.
Budhwani sought continuances from the IJ in order to petition
to adjust his status to that of legal resident alien, pursuant to
8 U.S.C. § 1255(i). That section provides: an illegal alien may
apply for adjustment of status if he filed a petition for “labor
certification ... pursuant to the regulations of the Secretary of
Labor on or before [30 April 2001]”. 8 U.S.C. § 1255(i)(1)(B)(ii).
The Attorney General may grant adjustment of status if the alien is
eligible to receive a visa and is admissible for permanent
residency; and if a visa is immediately available when the
application was filed. Id. § 1255(i)(2).
Budhwani claims the IJ abused his discretion in denying his
continuance motions in the light of his pending labor
certification. The Government claims: we lack jurisdiction to
review the IJ’s decision because that decision is left to the IJ’s
sound discretion; and, even if we have jurisdiction, the IJ did not
abuse his discretion.
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INA § 242(a)(2)(B), codified at 8 U.S.C. § 1252(a)(2)(B)(ii),
precludes judicial review of certain decisions left to the Attorney
General’s discretion. The Government incorrectly claims that
statute bars review of all decisions left to the Attorney General’s
discretion. Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir.
2005)(holding 8 U.S.C. § 1252(a)(2)(B)(ii) bars review only of
decisions made pursuant to “discretionary authority specified in
the statute”)(emphasis in original). Because the discretion to
grant or deny continuance motions is authorized by regulation, we
retain jurisdiction to review such decisions. Manzano-Garcia v.
Gonzales, 413 F.3d 462, 467 (5th Cir. 2005).
Budhwani claims he is eligible to apply to adjust his status
to legal permanent resident because: (1) he benefits from a labor
certificate filed before 20 April 2001; (2) but for the Department
of Labor’s delay in processing the labor certificate, he would
immediately apply for residency; and (3) employment visas are
immediately available.
Budhawni filed a written motion for continuance on 16 October
2003, which also claimed visas were immediately available. The
attorney who filed that motion did not represent Budhwani in the
proceedings before the IJ. On two occasions, including once on 16
October 2003, two attorneys for Budhwani orally informed the IJ
that no visas were currently available; the Government made a
similar representation. The record is unclear on whether the IJ
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ever saw the 16 October 2003 continuance motion, although it
appears he might have. Even if the IJ did see that motion, in the
light of what was at best conflicting evidence regarding the
availability of visas and thus Budhwani’s eligibility to apply for
adjustment of status, it was not an abuse of discretion for the IJ
to hold Budhwani did not show the good cause required for a
continuance. See 8 C.F.R. § 1003.29.
Finally, Budhwani claims the denial of his continuance motions
raises “serious equal protection and due process issues” because it
treats him differently from others who are eligible for immediately
available visas and whose motions for continuance are granted. It
is questionable, however, whether Budhwani was ever eligible for an
immediately available visa when he moved for a continuance.
Budhwani claims: “Any distinction between immediately available
pending visa adjudications ... under 8 U.S.C. § 1255(i) would be
irrational”. That, however, is exactly what the statute permits
when it gives the Attorney General discretion to grant or deny
adjustment of status to § 1255(i) applicants. This exercise of
discretion is certainly not a constitutional violation.
DENIED
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