## United States Court of Appeals
**For the Eighth Circuit** 

___________________________

Nos. 18-3704/19-2368

___________________________
Raju Ahmed

Petitioner

v.

William P. Barr, Attorney General of the United Sta tes

Respondent

____________ Petition for Review of an O rder of the Board of Immigration Appeals

____________ Submit ted: June 18, 2020 Filed: September 4, 2020

____________

Before LOKEN a nd GRASZ, Circuit Judges, and CLARK, 1 District Judge.

____________
CLARK, District Judge.

Petitioner Raju Ahmed, a citizen of Bangladesh, entered the United State s on a student visa. While in the country, he was convicted of two agg ravated felonies.
When the Department of Homeland Security moved to deport Ahmed based on those

c onvictions, Ahmed sought deferral of removal under the Convention Against

1 The Honorable Ste phen R. Clark, United States District Judge for the Eastern District of Missouri, sitting by designation.- 2 - Torture (CAT), 8 C.F.R. § 1208.16(c), claiming a fear of torture because he is a

conv ert from Islam to Christianity. Finding that Ahmed had fai led to show he was more likely than not to face torture if removed, the Immigration Judge denied his
request for deferral and the Board of Immigration Appeals (Board) affirmed. Ahmed
later moved the Board to reopen his case, claiming new evidence, and the Board
denied his motion to reopen.

Ah med petitioned this Court for review of the Board’s decisions. We deny the petitions for review.

I. Background

Ahmed is a native and citizen of Bangladesh. He en tered the United States on

a non

- immigrant student visa in 2000. In 2005, Ahmed, pleaded guilty to two felonies in Kansas: attempted aggravated burglary and attempted aggravated sexual battery. He was sentenced to 24 months in prison and 48 months of proba tion.

In 2006, the Department of Homeland Security issued Ahmed an
administrative order of remo val pursuant to section 238 of the Immigration and Nationality Act (INA). Section 238 provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2 )(A)(iii). The statute defines “aggrav ated felony” to include a “burglary offense for which the term of imprisonment is at least one year.” 8 U.S.C. § 1101(a)(43)(G). Despite issuance of the final a dministrative order of removal in 2006, DHS did not enforce the order or remove Ahmed to Banglad esh, but released him subject to an Order of Supervision.

For the next twelve years, Ahmed continued to reside and work in the United States. In 2015, he married his wife. Together, the couple have two daughters, who
are United States citizens.

In 2018, DHS moved to execute the final administrative order of removal.
Before he was removed, Ahmed expressed a fear of persecution and torture if he was- 3 - removed to Bangladesh because of his conversion from Islam to Christian ity. An Immigration Judge conducted a merits hearing on Ahmed’s application for relief from removal. Ahmed sought relief on two grounds: withholding of removal under
INA section 241 (b)(3), 8 U.S.C. § 1231(b)(3), and protection from removal under
the CAT. F inding Ahmed was ineligible for withholding of removal under INA section 241(b)(3) because of his felony convictions, the Immigration Judge considered Ahmed’s request for deferral of removal under the CAT. The Immigration Judge concluded that the evidence did not show Ahmed was more likely than not to be tortured if removed to Bangladesh, and thus denied his application for relief from removal under the CAT.

Ahmed appealed the Immig ration Judge’s decision to the Board of Immigration Appeals. The Board agreed with the Immigration Judge’s conclusion that Ahmed did not meet his burden to show that he was more likely than not to suffer torture if removed, and dismissed the appeal. Ahmed then filed his fi rst petition for review in this Court. While that appeal w as pending, Ahmed filed a motion to reopen with the Board, claiming new evidence. The Board denied the motion to reopen, noting that Ahmed failed to explain why the newly

- proffered
evidence was unav ailable at the time of his hearing, and finding that the n ew evidence was not likely to alter the Immigration Judge’s decision. Ahmed petitioned this Court for review of the Board’s denial of his motion to reopen, and we
consolidated that petition with his first petition.

II. Discussion

At the outset, we note that the Supreme Court’s recent decision in Nasrallah v. Barr

, 140 S. Ct. 1683 (2020) directly informs the scope of our review. Before
Nasrallah , several circuits, including this one, held that 8 U.S.C. § 1252(a)(2)(C), sometimes known as the “criminal alien bar,” applied to petitions for review of orders denying de ferral under the CAT. See, e.g., Gallimore v. Holder , 715 F.3d 687, 690 (8th Cir. 2013). The criminal alien bar provides that: “no court shall have jurisdiction to review any final order of remo val against an alien who is removable by re ason of having committed” a covered offense, including any aggravated felony.- 4 - 8 U.S.C. §§ 1252(a)(2)(C); 1227(a)(2)(A)(iii). Accordingly, under this Circuit ’s pre

Nasrallah precedent, our jurisdiction to review orders denying deferral under the CAT was limited to “constitutional claims or questions of law.” Cherichel v.
Holder , 591 F.3d 1002, 1009 (8th Cir. 2010) (quoting 8 U.S.C. § 1252(a)(2)(D)).

In Nasral lah , the Supreme Court held that an order denying deferra l under
the CAT is not a “final order of re moval,” and, therefore, the criminal alien bar does

not preclude judicial review of a noncitizen’s factual challenges to such an order. 140 S. Ct. at 1694. Thus, we have jurisdiction to consider Ahmed’s factual
ch allenges, as well as any colorable constitutional claims or questions of law raised by his petitions.

The Court reviews Ahmed’s factual challenges under the substantial- evidence
standard. Nasrallah

, 140 S. Ct. at 1692. This review is “highly deferential.” Id. “The agency’s ‘findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B));

see also Ngugi v. Lynch

, 826 F.3d 1132, 1136 (8th Cir. 2016) (“Under the
substan tial evidence standard, the agency’s findings of fact must be upheld unless
the alien demonstrates that the evidence he presented not only supports a contrary
conclusion but compe ls it.”) (emphasis in original). We review questions of law de

novo

.

Because the parties completed their briefing before the Supreme Court
decided Nasrallah , Ahmed does not directly challenge the agency’s factual
determinations. However, Ahmed does argue that the Board and Im migration Judge committed legal error by giving inadequa te weight to certain evidence. The Court will construe Ahmed’s weight -of- the

- evi dence arguments as factual challenges and
review them under the substantial

- evidence standard. But we first address Ahme d’s claims of legal error, which we review de novo

.- 5 - A. Le gal Challenges

Ahmed argues that the Board erred in adopting the Immigration Judge’s findings and analysis. First, the Board does not commit legal error simply by adopting the factual findings or reasoning of the Immigration Judge. See Garcia v.
Holder , 7 46 F.3d 869, 872 (8th Cir. 2014). Rather, in a case “where ‘the [Bo ard] essentially adopted the [Immigration Judge’s] opinion while adding some of its own reasoning, we review both decisions.’” Id. (quoting Osonowo v. Mukasey , 521 F.3d 922, 926

– 27 (8th Cir. 2008)). Second, Ahmed has not identified any error of law made by the Board or the Immigration Judge. The record shows that both the Immigration Judge and the Board set forth the correct legal standard for consideration of an application for deferral of removal under the CAT. Both correctly stated that Ahmed bore the burden to show that it was more likely than not he would be subject to torture if removed to Bangladesh. See 8 C.F.R. § 1208.16(c)(2) . The Immigration Judge noted his responsibility to consid er all relevant evidence, and explicitly stated that he considere d all evidence in the record
in its entirety, regardless of whether it is specifically mentioned in the decision. The Board correctly stated the elements of “torture” as set out in 8 C.F.R. § 1208.18(a). In sum, we find no legal error in the Board’s adoption of the Immigration Judge’s findings or analysis.

Ahmed next argues that the Board erred as a matter of law by failing to recogniz e that torture under the CAT may include acts in which the government is not an active participant. We disagree. The Board correctly stated the definition of torture, noting that it may include acts taken “with the consent or acquiescence ... of a public official,” and citing the relevant regulation, 8 C.F.R. § 120 8.18(a). See
Hanan v. Mukasey , 519 F.3d 760, 764 (8th Cir. 2008) (rejecting claim that the Board “used the incorrect definition of acquiescence, especially when it cited to the provision containing the correct definition.”). Accordingly, we find no legal e rror in the Board’s application of the government acquiesce nce standard. Ahmed’s contention that certain evidence shows the Bangladeshi government actually does acquiesce in torture is a factual challenge, which we address separately below.- 6 - Ahmed also ar gues that the Board and Immigration Judge erred by failing to consider all of the evidence in the record. “An allegation of wholesale failure to
consider evidence” is a constitutional challenge that implicates due process. Hanan

, 519 F.3d at 764. The record does not support Ahmed’s claim that the Board or Immigration Judge failed to consider his submissions. As noted, the Immigration Judge explicitly stated that he considered all evidence in the record, whether or not mentioned in his decision. Further, “[t]he [Board] is entitled to a presumption of

re gularity,” and “is not required by the Constitution to mention every piece of
evidence that it considered.” Sharif v. Barr , 965 F.3d 612, 624 (8th Cir. 2020). Finally, both the Board and Immigration Judge specifically mentioned the country
report s containing the evidence Ahmed claims the judge ignored. Thus, we reject Ahmed’s due process claim that the agency failed to consider all relevant evide nce

.

B. Factual Challenges

Ahmed contends that the Board e rred by concluding that he failed to meet his burden of proof. We construe this as a factual challenge to the Board’s determination that Ahmed failed to show he was “more likely than not” to be tortured if removed to Bangladesh. 8 C.F.R. § 1208.16(c)(2).

The Board determined that Ahmed did not meet his burden to show that the Bangladeshi government acquiesces in torture. For an act to constitute “torture” under the CAT, it must be done “by or at the instigation of or with the consent or acquiescence of a p ublic official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1) (emphasis added). Ahmed challenges the Board’s determination in two respects. First, Ahmed argues that the Board did not give sufficient weight to evidence in the cou ntry reports that some community leaders

u sed extrajudicial fatwas to punish individuals for perceived moral transgressions. Second, Ahmed argues that the Board did not give sufficient weight to evid ence of- 7 - t he government’s involvement in displacement of religious minorities, includi ng Christians, through land ownership disputes and forced evictions.

We find that substantial evidence supports the Board’s determination that Ahmed failed to show that the Bangladeshi government acquiesces in torture. The

rec ord indicates that the Bangladeshi government continues to take action against religious extremists who commit violence. The country reports state that the extrajudicial action taken by some community leaders is contrary to the express orders of the Bangladeshi government. That the government has been less than completely successful at curbing the viole nce does not mean it has acquiesced to torture. “A government does not acquiesce in the torture of it s citizens merely because it is aware of torture but pow erless to stop it, but it does cross the line into acquiescence when it shows willful blindness toward the torture of citizens by third parties.” Garcia v. Holder , 746 F.3d 869, 873 (8th Cir. 2014).

Likewise, substantial evidence supports the Board’s dete rmination that
Ahmed’s evidence of forcible land evictions does not demonstrate the government’s acquiescence in torture. The Board found that the evidence of forcible land evictions
did not demonstra te government-sponsored torture because the acts were not shown to have been inflicted for a proscribed purpose. We therefore review the Board’s proscribed-purpose findings.

An act does not constitute torture unless it is for a “proscribed purpose.”
Cheri chel , 591 F.3d at 1008. Specifically, “[t]orture does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” 8 C.F.R. § 1208.18(a)(3). “Lawful sanctions include judicially imposed sanctions and other
enforcem ent a ctions authorized by law.” Id. The record includes several reports by religious minorities, including Christians, of property and land ownership disputes and forced evictions, including by the government. But no evidence in the record
shows that these evic tions were for a proscribed purpose. It is certainly not selfevident that every forced eviction arising from a property dispute constitutes illicit government violence, much less torture. Further, the record indicates that some of- 8 - th ese property disputes stem from ineffective judicial and land registry sys tems rather than government policy disfavoring religious or ethnic minorities. In sum, substantial evidence supports the Board’s determination that these forced evictions do not demonstrate government

- sponsored torture. See Bartolo

- Diego v. Gonzales

, 490 F.3d 1024, 1029 (8th Cir. 2007) (“Even though the government's failure to investigate and punish [those] who break the law has resulted in human rights abuses, the failure is due more to a weak and inef ficient judicial system than to government acquiescence or approval.”).

Looking to the record as a whole, we find that “[a] reasonable adjudicator
could have found the evidence insufficient to establish a likelihood of torture.”
Ademo v. Lynch , 795 F.3d 823, 831 (8th Cir. 2015). As noted above, the Bangladesh i government continues its efforts to combat violence against religious minorities by Islamic extremists. The Bangladeshi constitution officially provides for religious
freedom for C hristians, and the record shows that approximately 800,000 Christians
live in Bangladesh, with the majority identifying as Roman Catholic. Further, the Immigration Judge and the Board properly found that Ahmed’s testimony regarding his kidnapping and torture at the hands of Islamic extremists did not demonstrate government acqui escence in torture, because he admits that the crime was never reported to the police. See Fuentes

- Erazo v. Sessions , 848 F.3d 847, 854 (8th Cir.
20 17) (where violent acts were not reported to the auth orities, a “reasonable adjudicator would not be compelled to find” that the acts occurred “with the imprimatur or acquiescence” of the government). Accordingly, we reject Ahmed’s factual challenges to th e Board’s determination, and deny his first petition for
review.

C. Motion to Reopen

We now turn to Ahmed’s p etition to review the Board’s denial of his motion to reopen. We have jurisdiction to review denial of a motion to reopen. Kucana v.
Holder , 558 U.S. 233, 253 (2010). The Board has “considerable discre tion” to grant or deny a motion to reopen. Lee v. Holder , 765 F.3d 851, 855 (8th Cir. 2014).- 9 - Accordingly, we review the Board’s decision to deny the motion to reopen for abuse
of discretion. Strato v. Ashcroft , 388 F.3d 651, 654 (8th Cir. 2004). The Board
“abuses its discretion only when its decision ‘is with out rational explanation, departs from established policies, invidiously discriminates against a particular race or group, or where the agency fails to con sider all factors presented by the alien or
dis torts important aspects of the claim.’” Lee , 765 F.3d at 855 (quoting Esenwah v. Ashcroft, 378 F.3d 763, 765 (8th Cir. 2004)).

The Board may deny a motion to reopen on the basis of new evidence on any of thre e grounds: “failure to establish a prima facie case for the relief sought, failure to introduce [with the motion to reopen] previously unavailable, material evidence,
and a determination that even if these requirements were satisfied, the movant would
not be entitled to the discretionary grant of relie f sought.” Id. Here, the Boa rd found
that Ahmed failed to show the newly

- proffered evidence was not available at the time of his hearing, and further found that it was unlikely the new evidence would have altered the Immigration Judge’s decision.

“A motio n to reopen proceedings shall not be granted unless it appears to the
Board 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. Ahmed offers nothing, beyond conclusory statements, to support his claim t hat the newly

- offered evidence was not available at the time of his hearing in 2018. Thus,
we f ind nothing in the record to support Ahmed’s claim that the Board abused its discretion in denying his motion to reopen. As noted above, failure to support a

mot ion to reopen with evidence that was not available at the time of the agency hearing is suffici ent reason for the Board to deny a motion to reopen. Lee , 765 F.3d at 855. Further, the Board determined th at the new evidence

— consisting of a statement from a Bangladeshi political party (or, a member of parliament, as Ahmed’s counsel conceded at oral arg ument) regarding conditions for Christians who have converted from other religions

— was unlikely to alter the Immigration Judge’s decision. We find no abuse of di scretion in this determination. The Immigration Judge found that the Bangladeshi government does not acquiesce in the- 10 - m istreatment of Christians. It was well within the Board’s board discretion to
concl ude that the proffered evidence would not overturn th at finding. We deny Ahmed’s petition to review the Board’s denial of his motion to reopen.

III. Conclusion

Accordingly, we deny both petitions for review.

______________________________