Pavitar Gill v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION MAY 19 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAVITAR GILL, AKA Pivitar Gill, AKA No. 10-71919
Gill Pavitar,
Agency No. A093-186-483
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 15, 2014**
San Francisco, California
Before: RIPPLE,*** SILVERMAN, and GOULD, Circuit Judges.
Pavitar Gill, an Indian citizen, petitions for review of an order of the Board
*
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).
***
The Honorable Kenneth F. Ripple, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
of Immigration Appeals (“BIA”) dismissing his appeal from an immigration
judge’s (“IJ”) denial of his applications for withholding of removal under 8 U.S.C.
§ 1231(b)(3) and for protection under the Convention Against Torture (“CAT”).1
We have jurisdiction under 8 U.S.C. § 1252. For the following reasons, we deny
the petition.
A.
The law and the evidence of record support the BIA’s determination that
Mr. Gill is not entitled to withholding of removal under 8 U.S.C. § 1231(b)(3).
First, the BIA applied the correct legal standard. It stated that Mr. Gill had
to demonstrate that he “more likely than not” would be persecuted if he returned to
India, Delgado v. Holder, 648 F.3d 1095, 1101 (9th Cir. 2011) (internal quotation
marks omitted), and that his actual or imputed religious beliefs or political opinion
would be “one central reason” for that persecution, Matter of C-T-L-, 25 I. & N.
Dec. 341, 348 (BIA 2010) (internal quotation marks omitted); see also Zetino v.
Holder, 622 F.3d 1007, 1015 (9th Cir. 2010).
Second, substantial evidence supports the Board’s determination that
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Although Mr. Gill also applied for asylum and adjustment of status,
Mr. Gill did not appeal the IJ’s rulings on those issues to the BIA or raise them in
his petition to this court.
2
Mr. Gill has not met this standard. Assuming, as did the BIA, that Mr. Gill and his
father had testified credibly before the IJ, the record evidence shows that police in
Punjab wished to speak with Mr. Gill about his association with Ajmer Singh, a
suspected Sikh insurgent allegedly killed by the police during a period of
substantial Sikh unrest throughout Punjab. However, the record shows that
Mr. Gill had no interactions with the police; that the police never threatened or
engaged in violence against Mr. Gill or his family; and that, when Mr. Gill left
home to stay with his aunt in another village in India, the police never located or
questioned him.
Mr. Gill nevertheless points to his father’s testimony that, on his most recent
visit to India in 2007, the police asked him about Mr. Gill’s whereabouts. This
encounter might suggest a continued police interest in questioning Mr. Gill, but it
is not sufficient to demonstrate a likelihood of persecution or that the persecution
would be motivated by Mr. Gill’s religion or political opinion. Finally, Mr. Gill
submits that, during the late 1990s to the 2000s, the Punjab area saw a revival of
the Sikh insurgency and a corresponding police crackdown. However, Mr. Gill
fails to show that the revival and crackdown are ongoing today or that he could not
avoid any potential violence by relocating outside of Punjab.
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B.
The law and the evidence of record also support the determination of the
Board that Mr. Gill is not eligible for CAT protection.
First, the Board correctly determined that, in order to be eligible for CAT
protection, Mr. Gill must demonstrate that it is more likely than not that he will be
tortured with the consent or acquiescence of the Indian authorities if he returns to
India. 8 C.F.R. §§ 208.16(c)(2), 208.18(a)(1).
Second, substantial evidence supports the BIA’s determination that Mr. Gill
is not entitled to CAT protection. Mr. Gill presented no evidence of past torture,
see id. § 208.16(c)(3)(i), and no evidence that he could not avoid torture if he
relocated from Punjab to a different area of India, see id. § 208.16(c)(3)(ii). With
respect to conditions in present-day India, see id. § 208.16(c)(3)(iii)-(iv), Mr. Gill
relies on the police crackdown in Punjab and the general prevalence of violence
and torture against police detainees in India. Although the Board determined that
this situation, combined with his father’s testimony that the police had asked about
Mr. Gill’s whereabouts as recently as 2007, might suggest a possibility of torture, it
also concluded that the evidence does not establish that it is more likely than not
that Mr. Gill will be tortured. We must conclude that the Board’s determination is
supported by substantial evidence. The record does not “compel a reasonable
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factfinder to reach a contrary conclusion.” Bromfield v. Mukasey, 543 F.3d 1071,
1076 (9th Cir. 2008).
C.
Finally, we note that Mr. Gill’s arguments that the IJ improperly applied
certain legal standards in determining whether he was eligible for withholding of
removal or for CAT protection2 are outside the scope of our review. On appeal, we
review only the final agency decision—here, the BIA’s decision. See Renteria-
Morales v. Mukasey, 551 F.3d 1076, 1080-81 (9th Cir. 2008). Because the BIA
did not rely on the IJ’s “particularly serious crime” analysis as a basis for its
decision, any faults in that legal analysis are outside the scope of our review. See
2
The IJ denied Mr. Gill’s applications for withholding of removal and for
CAT protection on a different ground than the BIA did. The IJ held that Mr. Gill’s
conviction under California state law for possession of methamphetamine for sale
was a “particularly serious crime” that rendered him ineligible for both forms of
relief. See 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R § 208.16(d)(2). In reaching this
conclusion, the IJ held that Mr. Gill could not overcome the presumption
established in In re Y-L-, 23 I. & N. Dec. 270, 274 (A.G. 2002), that a drug-
trafficking crime is a “particularly serious crime.”
On appeal, Mr. Gill contends (1) that the IJ’s reliance on In re Y-L- was
impermissibly retroactive under Miguel-Miguel v. Gonzales, 500 F.3d 941 (9th Cir.
2007), because In re Y-L- was decided four years after Mr. Gill committed the
relevant offense; and (2) that the IJ should have conducted a more in-depth
analysis about whether Mr. Gill overcame the In re Y-L- presumption.
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Gonzales v. Thomas, 547 U.S. 183, 185-87 (2006) (per curiam); SEC v. Chenery
Corp., 318 U.S. 80, 87-88 (1943). The Board properly determined that the IJ’s
analysis need not be outcome determinative and permissibly based its own
determination on Mr. Gill’s failure to demonstrate his entitlement to withholding
of removal or to CAT protection.
PETITION FOR REVIEW DENIED.
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