Balvir Singh-Malhi v. Eric Holder, Jr. ( 2012 )

FILED
NOT FOR PUBLICATION JUL 09 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BALVIR SINGH-MALHI, No. 09-73608
Petitioner, Agency No. A029-700-348
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 26, 2012 **
Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges.
Balvir Singh-Malhi, a native and citizen of India, petitions for review of the
Board of Immigration Appeals’ (“BIA”) orders denying his motion to remand and
dismissing his appeal from an immigration judge’s (“IJ”) decision denying his
application for withholding of removal and protection under the Convention
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We
review de novo questions of law and for substantial evidence factual findings.
Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We review for abuse of
discretion the BIA’s denial of a motion to remand. Guzman v. INS, 318 F.3d 911,
912 n.1 (9th Cir. 2003) (per curiam). We deny the petition for review.
The BIA found that, even assuming Singh-Malhi suffered past persecution,
the presumption of future persecution was rebutted. Substantial evidence supports
this finding and the agency’s conclusion that the record does not reflect a
likelihood of persecution. See 8 C.F.R. § 1208.16(b)(1)(i). We reject Singh-
Malhi’s contentions that the BIA purported to rely on a different basis than the IJ
and conducted ultra vires factfinding. We also reject Singh-Malhi’s contention
that he was deprived of the opportunity to challenge the finding that the
presumption of future persecution was rebutted. See Lata v. INS, 204 F.3d 1241,
1246 (9th Cir. 2000) (requiring error and substantial prejudice to prevail on a due
process challenge to proceedings and characterizing a showing of prejudice as “a
demonstration that the alleged violation affected the outcome of the proceedings”).
In addition, Singh-Malhi’s contention that the agency required corroborating
evidence and did not accept his testimony as true is belied by the record.
Accordingly, Singh-Malhi’s withholding of removal claim fails.
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In addition, substantial evidence supports the agency’s conclusion that the
record does not reflect a likelihood of torture if Singh-Malhi is returned to India.
See Wakkary, 558 F.3d at 1067-68. Accordingly, his CAT claim fails.
Finally, the BIA did not abuse its discretion in denying Singh-Malhi’s
motion to remand where all of the documents he submitted were issued prior to his
merits hearing, and he did not argue in his motion that they were previously
unavailable. See Afriyie v. Holder, 613 F.3d 924, 937 (9th Cir. 2010) (BIA did not
abuse its discretion in denying motion to consider evidence available to petitioner
at the time of his immigration hearing). Nor did the BIA abuse its discretion in not
setting a schedule for further briefing following our grant of the government’s
unopposed motion to remand for the BIA to address Singh-Malhi’s motion.
PETITION FOR REVIEW DENIED.
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