Opinion
No. 04-6137-ag.
February 28, 2007.
UPON DUE CONSIDERATION of this petition for review of the Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
FOR PETITIONER: Hector M. Roman, Roman Singh, LLP, Jackson Heights, NY.
FOR RESPONDENT: Robert L. Ellman, Assistant United States Attorney for the Distric of Nevada (Daniel G. Bogden, United States Attorney, of counsel), Las Vegas, NV.
PRESENT: HON. ROSEMARY S. POOLER, HON. ROBERT D. SACK, HON. RICHARD C. WESLEY.
Nirmal Singh, a native and citizen of India, seeks review of an October 28, 2004, order of the BIA affirming the August 7, 2003, decision of Immigration Judge ("IJ") Theresa Holmes-5 Simmons denying petitioner's application for relief under the Convention Against Torture ("CAT"). In re Nirmal Singh, No. A75 992 310 (BIA Oct. 28, 2004), aff'g No. A75 992 310 (Immig. Ct. N.Y. City. Aug. 7, 2003). Singh also challenges an August 23, 2002, order of the BIA affirming a March 23, 1999, decision of IJ Larry L. Dean denying Singh's application for asylum and withholding of removal. In re Nirmal Singh, No. A75 992 310 (BIA Aug. 23, 2002), aff'g No. A75 992 310 (Immig. Ct. N.Y. City March 29, 1999). We assume the parties' familiarity with the underlying facts and procedural history of the case.
This Court reviews the agency's factual findings under the substantial evidence standard, treating them as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 n. 7 (2d Cir. 2004). However, we will vacate and remand for new findings if the agency's reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 406 (2d Cir. 2005).
As an initial matter, the government argues that this Court lacks jurisdiction over Singh's asylum and withholding of removal claims because he did not file a petition for review of the BIA's first decision. The statute states that this Court has jurisdiction over issues raised in a petition for review "filed not later than 30 days after the date of the final order of removal." 8 U.S.C. § 1252(b)(1). Because the BIA's August 23, 2002, order remanded Singh's case for consideration of his CAT claim, no final order of removal was entered. Cf. Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir. 2002) (holding that the BIA's grant of a motion to reopen vacates the final order of removal leaving the Court of Appeals without jurisdiction). As a result, it was not until the BIA affirmed the second IJ's decision that a final order of removal was entered against Singh. Because the petitioner appealed the BIA's second and final order within the requisite 30 days, we have jurisdiction over Singh's application for asylum and withholding of removal.
Among the several findings in support of denying the petitioner's claims for asylum and withholding of removal, the IJ determined that the petitioner failed to link his allegations of past persecution, comprised of two prior arrests, to his activities as part of the All India Sikhs Student Federation, a political organization for members of the Sikh religion. The IJ further concluded that the petitioner had not shown that, even if he suffered from past persecution, he could avoid future persecution by relocating to a different area of the country. See 8 C.F.R. § 208.16(b)(2). We find that substantial evidence in the record supports these determinations, which independently provide an adequate basis for denying the petitioner's claims.
Even though the IJ's second decision focused exclusively on the merits of Singh's CAT claim, Singh failed to raise any arguments regarding the denial of this claim in his brief to the BIA. In fact, he did not even acknowledge that he filed an application for relief under CAT. Accordingly, these claims are not exhausted, and this Court lacks jurisdiction to review them. See 8 U.S.C. § 1252(d)(1); Ivanishvili v. U.S. Dep't of Justice, 433 F.3d 332, 343 (2d Cir. 2006). We also lack jurisdiction over Singh's claims — made for the first time in his briefing to this court — that remand is required based on his marriage or changed country conditions.
Accordingly, the petition for review is DENIED.