Roy v. Ashcroft

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 20, 2004

Charles R. Fulbruge III
Clerk
No. 03-60789

DAVID ROY,

Petitioner,

versus

JOHN ASHCROFT,
Attorney General of the United States,

Respondent.

Petition for Review of an Order of the
Board of Immigration Appeals

Before DeMOSS, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

Petitioner David Roy (“Roy”) seeks review of an order of the

Board of Immigration Appeals (“BIA”) denying his application for

asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”). For the following reasons, we deny his

petition for review.

BACKGROUND

Roy is a 23-year-old native and citizen of India who was

admitted to the United States on May 23, 1999, as a nonimmigrant

with authorization to remain for a temporary period not to exceed

November 22, 1999. On August 2, 2000, the Immigration and
Naturalization Service (“INS”) issued a Notice to Appear, charging

Roy with being subject to removal as an alien admitted as a

nonimmigrant who remained for a longer time than permitted. 8

U.S.C. § 1182(a)(6)(A)(1). At a hearing on August 24, 2000, Roy

admitted he remained beyond the date permitted by the INS; the

Immigration Judge (“IJ”) found Roy’s removability was established

by clear and convincing evidence.

Roy filed an asylum application dated October 6, 2000.1 The

IJ considered the Roys’ respective applications for relief at a

hearing on January 22, 2001. Roy and his parents represented

themselves. At this hearing, Roy testified that in 1998, when he

was in high school, some Hindu and Sikh boys from his school

expressed animosity toward him because he was Christian and hit him

with sticks and kicked him. Roy suffered no broken bones, though

he still experiences physical pain. Roy completed his schooling in

March 1999 and received his high school diploma.

The IJ found each of the Roys had filed a frivolous asylum

application and denied their applications. Upon de novo review,

the BIA issued a decision on August 28, 2003, reversing the IJ’s

findings of frivolousness as to all the Roys; granting Roy’s

father’s asylum application and Roy’s mother’s derivative

application; and denying Roy’s asylum application as untimely

1
Roy’s father Gulwant Roy had filed an asylum application dated
April 30, 2000. This application covered Roy’s mother Jamila Roy
Dass as derivative.

2
because it was filed outside the one-year deadline and Roy did not

demonstrate changed circumstances which materially affected his

eligibility for asylum or extraordinary circumstances related to

his delay in filing. The BIA noted that even if the application

had been timely filed, Roy had not established either past

persecution or a well-founded fear of persecution. The BIA also

denied Roy’s applications for withholding of removal and relief

under the CAT but granted him voluntary departure.

Roy filed a timely petition for review in this Court on

September 26, 2003. That same day, Roy also filed a motion to

reissue the opinion and a motion to reopen/consider with the BIA.

Roy claimed the BIA had addressed its decision to another attorney

and that his counsel did not receive the decision until September

24, 2003. Roy also argued that he was entitled to an exception

from the one-year period for filing asylum applications.

The BIA noted the mismailing and determined that Roy’s counsel

did not receive the order in time to comply with the requirements

for voluntary departure. The BIA reissued its decision on December

16, 2003, and again on January 21, 2004, and stated it would “treat

it as if it had been entered on today’s date.” The BIA declined to

reconsider its timeliness decision. Roy did not file a petition

for review from either of the BIA’s reissued orders.

DISCUSSION

This Court has jurisdiction to review final orders of removal.

3
8 U.S.C. § 1252(a) & 1252(b).2 Section 1252(b)(1) states: “The

petition for review must be filed not later than 30 days after the

date of the final order of removal.” Id. § 1252(b)(1). Section

1252 (b)(6) states: “When a petitioner seeks review of an order

under this section, any review sought of a motion to reopen or

reconsider the order shall be consolidated with the review of the

order.” Id. § 1252(b)(6).

I. Whether this Court has jurisdiction to consider Roy’s
petition.

As an initial matter, Respondent argues that this Court does

not have jurisdiction to consider Roy’s petition for review because

the BIA reissued its decision and Roy did not file a new petition

for review of either of the reissued decisions. Roy contends that

this Court has proper jurisdiction because he filed a timely

petition for review of the BIA’s original decision and the

reissuances did not divest this Court of jurisdiction.

The parties dispute the applicability of Firmansjah v.

Ashcroft, 347 F.3d 625 (7th Cir. 2003). In Firmansjah, the

petitioner claimed she did not receive notice of the BIA’s decision

within the 30-day period for seeking judicial review and requested

the BIA reissue its decision. 347 F.3d at 626. The BIA reissued

the order, stating that the reissued decision “shall be treated as

2
Here, the parties agree this Court cannot review Roy’s asylum
claim because we lack jurisdiction to review the BIA’s time bar
determination. 8 U.S.C. § 1158(a)(3).

4
entered as of today’s date.” Id. The Seventh Circuit determined

that the BIA had authority to reissue its decision and thus extend

the time for a petitioner to seek judicial review. Id. at 626-27.

The Seventh Circuit found it had jurisdiction. Id. at 627.

Respondent argues that each reissued order here, as in

Firmansjah, stated it would be treated as if newly entered.

Therefore, the most recently reissued decision is the final order

of removal and this Court lacks jurisdiction because Roy’s petition

for review is directed only to the BIA’s original decision. Roy

contends Firmansjah is not applicable because he, unlike

Firmansjah, timely petitioned for review of the BIA’s original

order. Roy notes that the BIA reissued its decision in response to

his motion and argues the reissued decisions are “consolidated”

with the petition for review under § 1252. Further, if the BIA is

permitted to divest this Court of jurisdiction over a properly

filed petition for review by reissuing a decision, the BIA has

gained a “powerful tool” over this Court.

This Circuit has not previously considered this jurisdictional

question. Here, Roy certainly appealed the BIA’s original order of

removal issued on August 28, 2003, within the 30-day deadline

required by § 1252(b)(1). The same day Roy petitioned for review,

on September 26, 2003, he also moved the BIA to reissue due to the

mismailing and late receipt, and to reopen/reconsider its decision

of removal. Based on the language of § 1252, on September 26,

5
2003, jurisdiction had vested in this Court over the BIA’s August

28, 2003, order of removal. Moreover, any review Roy had sought of

the denial of the motion to reopen/reconsider with the BIA would

have been consolidated with the petition for review under §

1252(b)(6).3

When the BIA reissued its decision on December 16, 2003, and

again on January 21, 2004, it noted the circumstances of the

mismailing and chose to equitably reissue the order specifically so

Roy would be able to timely comply with the requirements for

voluntary departure, as had been ordered in the BIA’s original

decision. Unlike in Firmansjah, where the BIA “enter[ed] a new

removal order, which is subject to a fresh petition for review,”

347 F.3d at 627, the BIA here did not need to equitably restart the

30-day clock for Roy to timely petition for review. Thus, the BIA

did not enter a new removal order but only reissued its prior

removal order for the equitable purpose of allowing Roy to timely

comply with the requirements of voluntary departure. Therefore,

this Court was not divested of jurisdiction over Roy’s timely filed

petition for review of the BIA’s original removal order when the

BIA chose to reissue its decision for the equitable purpose of

allowing Roy to timely comply with the requirements for voluntary

departure.

3
Roy did not seek review of the denial of his motion to
reopen/reconsider.

6
II. Whether this Court can review Roy’s “due process” claim.

Roy argues that his hearing before the IJ was fundamentally

unfair such that it violated his due process rights under the Fifth

Amendment. Roy contends the IJ failed to advise him of his rights

and did not provide him with a reasonable opportunity to question

his mother or to explain the dangers he would face if returned to

India. Respondent maintains that this Court lacks jurisdiction

with respect to this issue because Roy failed to raise this

argument before the BIA.

Roy admits that the due process issues were not raised

directly before the BIA. However, Roy maintains that he raised

them indirectly by including a discussion of the IJ’s failure to

elicit additional information from the applicants and to afford

them an opportunity to account for discrepancies or

implausibilities in their stories.4

Judicial review of a final order of removal is available only

where the applicant has exhausted all administrative remedies of

right. 8 U.S.C. § 1252(d)(1). Failure to exhaust an issue creates

a jurisdictional bar as to that issue. Wang v. Ashcroft, 260 F.3d

448, 452 (5th Cir. 2001). “An alien fails to exhaust his

administrative remedies with respect to an issue when the issue is

not raised in the first instance before the BIA – either on direct

4
Roy included this discussion in the course of his argument to
the BIA that the IJ had erred by determining his asylum application
was frivolous.

7
appeal or in a motion to reopen.” Id. at 452-53 (citing Goonsuwan

v. Ashcroft, 252 F.3d 383, 388-89 (5th Cir. 2001)). Claims of due

process violations, except for procedural errors that are

correctable by the BIA, are generally not subject to the exhaustion

requirement. Anwar v. INS, 116 F.3d 140, 144 n.4 (5th Cir. 1997).

In Anwar, the petitioner’s challenge to the federal regulations

regarding the submission of briefs was not subject to exhaustion.

Id. However, “[w]hen a petitioner seeks to raise a claim not

presented to the BIA and the claim is one that the BIA has adequate

mechanisms to address and remedy, the petitioner must raise the

issue in a motion to reopen prior to resorting to review by the

courts.” Goonsuwan, 252 F.3d at 390. “It is irrelevant that the

procedural error alleged . . . is couched in terms of a due process

violation.” Id. at 389-90 (citation omitted).

Although Roy’s argument is couched in terms of due process, it

actually concerns “procedural error correctable by the BIA.”

Anwar, 116 F.3d at 144 n.4; see also Matter of Exame, 18 I&N Dec.

303, 305 (BIA 1982) (remanding the record where the IJ had

improperly denied admission of background evidence, thus precluding

“the applicant from making a full and fair presentation of his

persecution claim”). Thus, it is properly subject to the

exhaustion requirement. Roy did not raise this point of procedural

error to the BIA in his brief or motion to reopen. Therefore, we

cannot review Roy’s claim that his hearing was fundamentally

8
unfair.

III. Whether there is substantial evidence to support the BIA’s
denial of relief on Roy’s withholding of removal and CAT
claims.5

Roy contends that there is no substantial evidence to support

the BIA’s denial of withholding of removal. Roy also argues that,

assuming the BIA’s opinion is sufficient for review (addressed

below in subpart B.), there is no substantial evidence to support

the BIA’s denial of relief under the CAT.

Where the BIA conducted a de novo review of the record

evidence and did not adopt any part of the IJ’s decision, this

Court limits its review to the BIA’s decision. Girma v. INS, 283

F.3d 664, 665 (5th Cir. 2002); Mikhael v. INS, 115 F.3d 299, 302

(5th Cir. 1997). For review of orders of removal under the

Immigration and Naturalization Act (“INA”), section 242(b)(4)(B),

“the administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude the

contrary.” 8 U.S.C. § 1252(b)(4)(B). This Court reviews factual

findings to determine if they are supported by substantial evidence

in the record. Mikhael, 115 F.3d at 302. “The substantial

evidence standard requires only that the [BIA’s] conclusion be

5
In addition, Respondent argues that Roy did not exhaust his
administrative remedies with respect to his withholding of removal
and CAT claims and thus forfeited his right to raise these issues
on appeal. Id. § 1252(d)(1). We disagree. Roy specifically
requested withholding of removal and CAT relief in his brief to the
BIA, and the BIA specifically denied such relief.

9
based upon the evidence presented and be substantially reasonable.”

Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 350 (5th Cir. 2002)

(citation omitted). The BIA will be reversed only when the

evidence is “so compelling that no reasonable fact finder could

fail to find” the petitioner statutorily eligible for relief. INS

v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992); Mikhael, 115 F.3d

at 302.

A. Withholding of removal.

To be eligible for withholding of removal, an applicant must

demonstrate a “clear probability” of persecution upon return.

Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994). 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. Bah v. Ashcroft,

341 F.3d 348, 351 (5th Cir. 2003); see also INS v. Stevic, 467 U.S.

407, 424, 429-30 (1984) (describing this more likely than not

standard). Persecution has been construed as requiring a showing

that “harm or suffering will be inflicted upon [him] in order to

punish [him] for possessing a belief or characteristic a persecutor

sought to overcome.” Faddoul, 37 F.3d at 188. “[T]here must be

some particularized connection between the feared persecution and

the alien's race, religion, nationality or other listed

characteristic. Demonstrating such a connection requires the alien

10
to present specific, detailed facts showing a good reason to fear

that he or she will be singled out for persecution.” Id.

“Withholding of removal is a higher standard than asylum,” Efe v.

Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002), which requires a

showing of past persecution or a well-founded fear of persecution

on one of the five stated grounds. Id. at 904.

Roy argues that the BIA failed to consider that, if his father

was persecuted in the past and had a well-founded fear of

persecution for his religious beliefs, as the BIA implicitly

determined in granting his father’s asylum application, Roy also

would be persecuted because he will be identified as Christian.

Roy maintains the BIA should not have considered his application in

isolation.

Respondent counters that the record evidence contained

virtually no evidence that Roy faced any risk of harm from anyone

if he returned to India. One high school incident could not

establish eligibility for asylum, much less withholding of removal.

Respondent also charges the connection between Roy and his father

could not lead to Roy being persecuted for his father’s activities

because Roy was not present during any of his father’s incidents

and because Roy and his mother lived in a different district in

India, apart from Roy’s father.

The BIA first considered Roy’s evidence of the one high school

incident and determined even that even if his asylum application

11
had been timely filed, he had not shown that he suffered past

persecution or he had a well-founded fear of persecution. Thus,

the BIA denied Roy’s asylum claim. The BIA then stated that having

considered the record evidence, it found Roy had not demonstrated

eligibility for withholding of removal, citing Stevic, among other

authorities.

The BIA had noted several specific incidents in which Roy’s

father had been subjected to beatings, threatened, and arrested in

connection with his, and his minister brother-in-law’s, active

involvement in the Christian church in the village. These

incidents occurred while Roy’s father was preaching the Bible,

distributing pamphlets, and attending a prayer meeting. Roy did

not show himself to be present at any of these incidents. In

contrast, Roy’s testimony of the one high school incident did not

show any particular connection to his being Christian other than

his claim that was the motivation. Moreover, Roy offered no

specific, detailed facts demonstrating that more likely than not

anyone or any group would harm him for being Christian (or for any

imputed connection to his father) if he returned to India.

A finding by the BIA that Roy’s father had met the lower

threshold of past persecution or a well-founded fear of persecution

to be eligible for asylum did not indicate or imply that his son

Roy could then meet the more stringent level of proof required for

withholding. See Girma, 283 F.3d at 666-67 (citing Mikhael, 115

12
F.3d at 306). Roy has not shown the evidence is so compelling that

no reasonable fact finder could fail to find Roy eligible for

withholding. Therefore, we find that substantial evidence

supported the BIA’s finding that Roy failed to prove that he would

more likely than not be persecuted if returned to India.

B. CAT claim.

As a threshold, Roy maintains the BIA’s decision as to Roy’s

CAT claim is insufficient for our review. This Court will “review

the BIA’s decision ‘procedurally’ to ensure that the complaining

applicant has received full and fair consideration of all

circumstances that give rise to his or her claims.” Abdel-Masieh

v. INS, 73 F.3d 579, 585 (5th Cir. 1996) (internal quotation marks

and citation omitted). The BIA does not have to “write an exegesis

on every contention. What is required is merely that it consider

the issues raised, and announce its decision in terms sufficient to

enable a reviewing court to perceive that it has heard and thought

and not merely reacted.” Efe, 293 F.3d at 908.

Roy contends the BIA failed to analyze his CAT claim and

rejected the claim in a single sentence. Roy seeks remand of the

proceedings to the BIA to issue a sufficient opinion regarding his

eligibility for CAT relief.

Respondent counters that the BIA’s analysis was properly

tailored to the evidence presented. Respondent also suggests that

any abbreviated denial by the BIA stemmed from a lack of evidence

13
supporting the CAT claim.

After rejecting Roy’s asylum claim and his request for

withholding of removal, the BIA rejected Roy’s claim for relief

under the CAT in a single sentence, stating: “In addition, we find

that the respondent failed to establish that he qualified for

relief under the [CAT].” But before announcing this one-sentence

conclusion, the BIA considered the evidence Roy put forth. The BIA

stated that Roy testified only to the one high school incident,

where some Sikh and Hindu classmates had hit him with sticks and

kicked him. Roy does not dispute that this testimony is the only

incident he advanced.

A claim under the CAT is a separate claim from withholding

under the INA. Id. at 906-07. Unlike persecution to show

eligibility for asylum or withholding, there need not be any

connection between the applicant’s race, religion, nationality,

membership in a particular social group, or political opinion, and

the inflicted torture. Id. at 907. The CAT standard for relief

“does not require persecution, but the higher bar of torture. The

applicant has the burden of proving ‘that it is more likely than

not that he or she would be tortured if removed to the proposed

country of removal.’” Id. at 907 (citing 8 C.F.R. § 208.16(c)(2)).

Torture is defined as “any act by which severe pain or suffering,

whether physical or mental, is intentionally inflicted on a person

. . . by or at the instigation of or with the consent or

14
acquiescence of a public official or other person acting in an

official capacity.” 8 C.F.R. § 208.18(a)(1).

The BIA did not expressly cite the CAT standard. However, the

BIA had explicitly concluded that Roy had not established either

past persecution or a well-founded fear of persecution to be

eligible for asylum, nor established eligibility for withholding.

The BIA considered the record evidence pertaining to Roy and

implicitly found it likewise failed to meet the more stringent CAT

standard of torture. Therefore, we find the BIA’s decision as to

Roy’s CAT claim sufficient for review.

As to the merits, Roy contends that the BIA’s denial of his

CAT claim is not substantially reasonable given his evidence that

he was attacked by Sikhs and Hindus on account of his religion.

Roy points to his mother’s testimony that police have harassed and

threatened members of her family for proselytizing. Roy also notes

the section on India in the 1999 Country Reports on Human Rights

Practices, U.S. Dep’t of State (Feb. 25, 2000), to support his

claim that Hindu extremist groups attack Christians and the

government response is inadequate.

Respondent argues that the one incident Roy testified to could

not meet the high bar of torture. According to Respondent, the

record is devoid of any evidence that would justify finding Roy

eligible for CAT relief, let alone compel it. Respondent

emphasizes that when asked why he could not return to India, Roy

15
did not state he feared torture or even harassment at the hands of

the police, or the Sikhs or Hindus.

The record indicates the Indian government criticizes attacks

against Christians and respects the constitutional right of freedom

of religion in practice. 1999 Annual Report on Int’l Religious

Freedom, U.S. Dep’t of State (Sept. 9, 1999). We note that the

section of Roy’s mother’s testimony cited by Roy concerned not him,

but rather his father, his father’s brother-in-law, and his

father’s nephew. We also note that Roy did not show himself to be

present at anytime these other members of his family were arrested,

harassed, or beaten. Notably absent in any of the evidence Roy put

forth was any suggestion that he himself would more likely than not

be subject to any torture by or acquiesced in by the police if he

returned to India. Roy has not shown the evidence is so compelling

that no reasonable fact finder could fail to find Roy eligible for

CAT relief. Therefore, we find that substantial evidence supported

the BIA’s finding that Roy failed to prove that he would more

likely than not be tortured if returned to India.

CONCLUSION

Having carefully considered the record of the case and the

parties’ respective briefing, for the reasons set forth above, we

DENY the petition for review.

DENIED.

16