Maknojia v. Gonzales

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United States Court of Appeals
Fifth Circuit
F I L E D
December 29, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-61084
Summary Calendar
_______________
SAIYAD ALI MAKNOJIA,
Petitioner,
VERSUS
ALBERTO R. GONZALES,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_________________________
Petition for Review of an Order of
the Board of Immigration Appeals
m A78 567 271
_________________________
Before SMITH, GARZA, and PRADO,
Circuit Judges.
PER CURIAM:*
Saiyad Maknojia petitions for review of an
order of the Board of Immigration Appeals
(“BIA”) affirming the denial by an immigration
judge (“IJ”) of his application for withholding
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
(continued...)
*(...continued)
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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of removal under § 241(b)(3)(A) of the
Immigration and Nationality Act and Article 3
of the Convention Against Torture (“CAT”).1
Because the BIA’s decisions on both counts
are supported by substantial evidence, we
affirm.2
Maknojia bears the burden of proving by a
“clear probability”3 that it is more likely than
not that, if returned to his home country of
India, “[his] life or freedom would be threat-
ened . . . because of [his] race, religion, nation-
ality, membership in a particular social group,
or political opinion.” 8 U.S.C. § 1231(b)-
(3)(A). The IJ had substantial evidence, see
Chun v. INS, 40 F.3d 76, 78-79 (5th Cir.
1994), that Maknojia failed to meet this bur-
den.
Although Maknojia alleged that on several
occasions he and his family had faced perse-
cution on account of being Muslims living in a
predominantly Hindu country, he did not show
that such persecution would likely occur upon
his return. Furthermore, the IJ noted that
approximately 120,000,000 Muslims live in
India, and Maknojia did not satisfactorily ex-
plain why he could not relocate to a predomi-
nantly Muslim area in India to be free from
religious reprisals.4
Likewise, Maknojia has not proven that it is
more likely than not that he would be tortured
if returned to India. See 8 C.F.R. § 208.16-
(c)(2). Under the CAT, he need not
demonstrate a connection between the proba-
bility of future torture and his race, religion,
nationality, or political or social affiliation.
Efe v. Ashcroft, 293 F.3d 899, 908 (5th Cir.
2002). But, he must meet the “higher bar” of
proving the likelihood of torture as opposed to
mere persecution. Id. Because his evidence
consists mainly of the same series of previous
unfortunate events used to support his perse-
cution claim, the BIA did not err in finding
that he failed to meet his burden of proving
that he will probably face torture if returned to
India.
The petition for review is DENIED.
1 Because the BIA affirmed without extended
analysis, we may consider the IJ’s decision as the
final agency action for purposes of this petition for
review. Zhang v. Gonzales, 2005 U.S. App.
LEXIS 26147, at *5 (5th Cir. Dec. 1, 2005).
2 Maknojia does not allege extraordinary or
changed circumstances that would excuse his fail-
ure to file an application for asylum within one
year of his arrival in the United States, and we lack
jurisdiction to review the IJ’s determination of
untimeliness. 8 U.S.C. § 1158(a)(3). Therefore,
only withholding of removal is at issue.
3 IRS v. Stevic, 467 U.S. 407, 413 (1984).
4 The IJ supported his holding by finding that
Maknojia’s wife, parents, and brother apparently
live in India.

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