Saiyadali Maknojia v. Eric Holder, Jr.

Case: 11-60455 Document: 00511835251 Page: 1 Date Filed: 04/25/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 25, 2012
No. 11-60455
Summary Calendar Lyle W. Cayce
Clerk
SAIYADALI ALIKHAN MAKNOJIA,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A089 936 018
Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Indian national Saiyadali Alikhan Maknojia petitions for review of the
Board of Immigration Appeals’ (BIA) decision affirming the immigration judge’s
(IJ) order of removal. Maknojia contends he was entitled to withholding of
removal, maintaining: the IJ erred by making an adverse credibility
determination; the IJ did not correctly apply the law to the facts in determining
Maknojia had not shown past persecution on account of his religion or political
opinion; and his testimony established he cannot relocate safely to another part
of India. (Maknojia’s claims for asylum and for relief under the Convention
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-60455 Document: 00511835251 Page: 2 Date Filed: 04/25/2012
No. 11-60455
Against Torture will not be considered as he failed to exhaust them before the
BIA. 8 U.S.C. § 1252(d)(1); Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004)
(“An alien fails to exhaust his administrative remedies with respect to an issue
when the issue is not raised in the first instance before the BIA—either on direct
appeal or in a motion to reopen.”) (internal quotation marks omitted).)
Our court reviews the decision of the BIA and will consider the IJ’s
underlying decision only if it influenced the BIA’s determination. Wang v.
Holder, 569 F.3d 531, 536 (5th Cir. 2009). Fact findings, including the finding
that an alien is not eligible for withholding of removal, are reviewed for
substantial evidence. Id. A fact finding will not be reversed unless “the evidence
was so compelling that no reasonable factfinder could conclude against it”. Id.
at 537.
The claimed adverse credibility determination by the IJ need not be
reviewed because the BIA determined the IJ did not make an explicit adverse
credibility finding. Maknojia waives, by failure to brief, any challenge to the
BIA’s determination that he failed to carry his burden of proof by failing to
provide reasonably available corroborative evidence. Soadjede v. Ashcroft, 324
F.3d 830, 833 (5th Cir. 2003). Because this finding was dispositive, Maknojia’s
waiver of the issue defeats his petition for review.
Even had Maknojia challenged the BIA’s finding that he failed to present
reasonably available corroborative evidence, such a contention would be without
merit because the record supports that finding. There is nothing in the record
to indicate that the objective evidence suggested by the BIA, including proof of
his political activities, medical records, and election data, was not reasonably
available to him or his family members still living in India. To the contrary,
Maknojia admitted that he could have obtained a letter attesting to his political
activities, and he opined that election data would have been readily available on
the internet.
DENIED.
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