FILED
NOT FOR PUBLICATION MAR 04 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOHN PAUL GNOVEL, No. 07-71313
Petitioner, Agency No. A076-694-156
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 16, 2011 **
San Francisco, California
Before: O’SCANNLAIN and TROTT, Circuit Judges, and CAMPBELL, Senior
District Judge.***
John Paul Gnovel petitions for review of the BIA’s affirmance of the IJ’s
denial of withholding of removal and Convention Against Torture relief. Mr.
*
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 Tena Campbell, Senior District Judge for the U.S.
District Court for Utah, sitting by designation.
Gnovel also petitions for review of the BIA’s denial of his motions to remand and
reconsider. Where, as here, the BIA adopts the IJ’s decision and also adds its own
reasons, both decisions are reviewed. Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th
Cir. 2005). Questions of law are reviewed de novo, but factual findings underlying
the agency’s final order are reviewed for substantial evidence. Id. Reviewing for
substantial evidence means the BIA’s findings must be upheld unless the evidence
compels a contrary result. INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992).
We deny the petition.
A. Scope of Review
Mr. Gnovel argues that the BIA substituted its own dispositive factual
findings for those of the IJ, contravening 8 C.F.R. § 1003.1(d)(3)(iv), which states
that “the Board will not engage in factfinding in the course of deciding appeals.”
This argument is without merit, because there is no substantive difference between
the findings of the BIA and the IJ.
The BIA’s statements regarding apostasy paraphrased the IJ’s finding that
Mr. Gnovel’s claimed apostasy would not be easily observed or likely to cause him
serious problems. The BIA also found “the one physical altercation described by
the [Petitioner] [in]sufficient to establish past persecution.” The IJ made an
explicit finding that Mr. Gnovel did not suffer past persecution and was therefore
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not entitled to a presumption of eligibility for withholding of removal: “He also has
not proven that he experienced past persecution on account of any protected
ground while he was in Malaysia.” The BIA’s statements were not new findings of
fact and did not violate § 1003.1(d)(3)(iv).
B. Withholding of Removal/Convention Against Torture Relief
The BIA found that, despite having converted back to Catholicism, Mr.
Gnovel would not be considered a Muslim apostate upon return to Malaysia.
Substantial evidence supported the IJ’s and BIA’s conclusions, and the evidence
submitted by Mr. Gnovel does not compel a contrary result. Mr. Gnovel, as an
ethnic Indian, would not be presumed to be a Muslim. Mr. Gnovel has no
documents identifying him as a Muslim, and presented no evidence that anyone in
Malaysia has such documents. Mr. Gnovel did not present evidence that Catholics
are generally persecuted in Malaysia. In Mr. Gnovel’s favor, he testified that a
Muslim once came looking for him to see if he was still practicing Islam, but this
incident occurred nearly fourteen years ago. It is true that those who convert from
Islam in Malaysia can be treated harshly and that regulations in force since 1999
require all Muslims, both ethnic and converts, to carry identification indicating
adherence to Islam. The IJ’s and BIA’s conclusions, however, were premised on
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the fact that there was no evidence that anyone in Malaysia would be able to
identify Mr. Gnovel as an apostate.
Turning to the Convention Against Torture, Mr. Gnovel’s arguments are the
same as those put forward in support of withholding of removal; he will face
torture as an apostate if he returns to Malaysia. Again, Mr. Gnovel’s argument is
completely reliant on the presumption that he will be treated as an apostate; the
potentially harsh treatment of apostates is not disputed. As discussed, substantial
evidence supports the IJ’s conclusion that Mr. Gnovel would not be treated as an
apostate upon his return, and the evidence cited by Mr. Gnovel does not compel a
contrary conclusion.
C. Motions to Remand/Reconsider
A motion to remand proceedings shall not be granted unless it appears to the
BIA that evidence sought to be offered is material and was not available and could
not have been discovered or presented at the former hearing. 8 C.F.R.
§ 1003.2(c)(1). The BIA abuses its discretion when it fails to offer a reasoned
explanation for its decision, or distorts or disregards important aspects of the
alien’s claim. Konstantinova v. INS, 195 F.3d 528, 529 (9th Cir. 1999).
The BIA based its denial of Mr. Gnovel’s motion on reasons permitted under
§ 1003.2(c)(1), and did not abuse its discretion. Mr. Gnovel sought to introduce
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six new documents. The BIA first stated that Mr. Gnovel did not “demonstrate[]
that the evidence now submitted was previously unavailable, or sufficiently
material so as to warrant a new hearing.” The BIA then noted that three of the
documents predated Mr. Gnovel’s hearing, one was undated, and that at least one
other was not material.
For the same reasons, the BIA did not abuse its discretion by denying Mr.
Gnovel’s motion for reconsideration of the denial of his motion to remand. See 8
C.F.R. §§ 1003.2(a)-(b)(1).
DENIED.
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