FILED
NOT FOR PUBLICATION MAR 07 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KAILASH UPADHYAY, No. 08-75227
Petitioner, Agency No. A099-776-954
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Kailash Upadhyay, a native and citizen of India, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). We have
*
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).
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence,
Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 998 (9th Cir. 2003), and we deny
the petition for review.
Substantial evidence supports the agency’s finding that, even if Upadhyay
were credible, any presumption of a well-founded fear was rebutted by evidence
that he could reasonably relocate within India. See 8 C.F.R. § 1208.13(b)(1)(i)(B);
Gonzalez-Hernandez, 336 F.3d at 998-99. Accordingly, Upadhyay’s asylum claim
fails.
Because Upadhyay failed to establish eligibility for asylum, he necessarily
failed to meet the more stringent standard for withholding of removal. See
Gonzalez-Hernandez, 336 F.3d at 1001 n.5.
Substantial evidence also supports the agency’s denial of CAT protection
because Upadhyay failed to demonstrate it is more likely than not he will be
tortured if returned to India. See 8 C.F.R. § 1208.16(c)(3); see also Singh v.
Gonzales, 439 F.3d 1100, 1113 (9th Cir. 2006). Upadhyay’s contention that the
BIA applied the wrong standard to his CAT claim is belied by the record.
PETITION FOR REVIEW DENIED.
2 08-75227