Kadival v. Gonzales

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
July 19, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-60521
Summary Calendar
AKBAR NOOR-MOHAMMAD KADIVAL,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A78 567 265
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Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Akbar Noor-Mohammad Kadival has petitioned for review of the
decision of the Board of Immigration Appeals (“BIA”) adopting and
affirming the decision of the Immigration Judge denying his
application for withholding of removal and for relief under the
Convention Against Torture (“CAT”).
This court generally reviews only the BIA’s decision, not
that of the IJ, except to the extent that the IJ’s decision
influences the BIA. Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.

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1997). Because the BIA summarily affirmed the IJ’s decision,
however, the IJ’s decision is the final agency determination for
judicial review. See id.; Soadjede v. Ashcroft, 324 F.3d 830,
832 (5th Cir. 2003) (BIA’s summary affirmance procedure does not
deprive court of basis for judicial review).
The determination that Kadival is not eligible for
withholding of removal is a factual finding reviewed under the
substantial-evidence standard. Efe v. Ashcroft, 293 F.3d 899,
906 (5th Cir. 2002). The substantial-evidence standard requires
only that the BIA’s conclusion be based on the evidence presented
and be substantially reasonable. Carbajal-Gonzalez v. INS, 78
F.3d 194, 197 (5th Cir. 1996). This court must defer to the
BIA’s decision unless the evidence compels a contrary conclusion.
See INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992).
“To be eligible for withholding of removal, an applicant
must demonstrate a ‘clear probability’ of persecution upon
return.” Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004).
“A clear probability means that it is more likely than not that
the applicant’s life or freedom would be threatened by
persecution on account of either his race, religion, nationality,
membership in a particular social group, or political opinion.”
Id. To establish “persecution,” the alien must show that he will
suffer harm to punish him for possessing a belief or
characteristic a persecutor seeks to overcome. Faddoul v. INS,
37 F.3d 185, 188 (5th Cir. 1994). The alien must present

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specific facts demonstrating a reason to fear that he will be
singled out for persecution because of his race, religion,
nationality, membership in a particular social group, or
political opinion. Id.
Kadival, a Muslim, contends that he will be subject to
persecution by the Shiv Sena, a Hindu group, if he returns to
India. Kadival does not address directly the IJ’s determinations
with regard to his credibility and his ability to avoid religious
violence by relocating. See 8 C.F.R. § 208.16(b). Instead, he
argues that the record shows that conditions for Muslims
generally have deteriorated further.
The IJ’s determinations, that Kadival had not shown a clear
probability of persecution on his return to India and that it was
reasonable for Kadival to avoid persecution by relocating within
India, were supported by substantial evidence. See Roy, 389 F.3d
at 138. Kadival has not shown that the record compels a contrary
conclusion. See Faddoul, 37 F.3d at 188.
To warrant the grant of a petition for review regarding a
CAT claim, the record must compel a finding that Kadival met his
burden to show that it was more likely than not that he would be
tortured if returned to India. See Bah v. Ashcroft, 341 F.3d
348, 352 (5th Cir. 2003).
Although Kadival insists that the Shiv Sena has ties to the
government and there is some support for this contention in the
record, he does not present any argument with regard to the IJ’s

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determination that he could reasonably relocate within India to
avoid the Shiv Sena. The IJ’s determination that Kadival is not
entitled to relief under the CAT is supported by substantial
evidence and Kadival has not shown that the record compels a
contrary conclusion. See Bah, 341 F.3d at 352.
Kadival contends that the proceedings were terminated
because Notice to Appear bore an incorrect date. Because the
issue was not briefed, it is waived. See Communication Workers
of America v. Ector County Hosp. Dist., 392 F.3d 733, 748 (5th
Cir. 2004).
The petition for review of the BIA’s decision is DENIED.

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