### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60356 Summary Calendar

JOGA SINGH JOHAL,
Petitioner

v. ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL, Respondent

Petitions for Review of an Order of the Board of Immigration Appeals BIA No. A092 183 438

Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges. PER CURIAM: * Joga Singh Johal, a native and c itizen of India, petitions for review of the Board of Immigrations Appeals’ (BIA) both upholding the Immigration Judge’s (IJ) denying his application for relief under the Convention Against Torture (CAT), and denying his subsequent motion to reopen the removal p roceeding. Johal conten d s : h e w as denied due p rocess in the CAT and motion-to-reopen proceedings; the BIA applied an incorrect legal standard when considering his motion to reopen; the BIA abused its discretion in denying the motion to reopen U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D June 26, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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on ineffective-assistance-of-counsel grounds; and the BIA erroneously found he did not establish the requisite probability of torture for CAT relief. Constitutional or l egal c laims raised before the BIA on appeal from an IJ’s denying relief under CAT are reviewed de novo

. E.g. , Bouchikhi v. Holder, 676 F.3d 1 73, 180 (5th Cir. 2012). Such claims raised b efore the BIA in a motion to reopen are reviewed under “a highly deferential abuse-of-discretion standard”. Gomez-Palacios v. Holder , 560 F.3d 354, 358 (5th Cir. 2009). Because Johal is removable as an alien convicted of an aggravated felon y (controlled-substance offense), we have jurisdiction to review only constitutional or legal qu e s t i o n s . 8 U.S.C. § 1252(a) ( 2 )(C), (D) (review for certain felons’ immigration claims limited to constitutional or l egal issues); Larin-Ulloa v. Gonzales , 462 F .3d 456, 460-61 (5th Cir. 2006). Regardin g h i s d ue-process claim, Johal asserts the IJ excluded from the record the supporting documentation for his claim, after finding it was filed untim e l y . Although the Government maintains Johal failed to exhaust this claim b efore the BIA, we assume without deciding that the question is p roperly before us, and overrule it o n another basis. Wang v. Holder , 569 F.3d 531, 540 (5th Cir. 2009). Johal’s c ounsel acknowledged during th e 1 9 O ctob er 2 0 1 1 removal hearing he had been advised of: the 5 Oc tober 2011 deadline for filing supporting d o c u mentation; and, the c onsequences of missing that deadline. Cou n s e l conceded the documents were untimely and shoul d n o t be accepted into the record. Further, Johal “never requested a continuance o r objected [to the filing deadline] during the proceedings before the IJ”. Bolvito v. Mukasey , 527 F.3d 428, 438 (5th Cir. 2008). Thus, Johal waived his due-process claim. E.g. , id. Even if n ot waived, Johal was required t o “ s how substantial prejudice” to establish a du e-process violation. Bouch i k h i, 6 7 6 F.3d at 180. H is conclusory assertions of how the documents would have corro b o r ated his claim are insufficient to e stablish substantial prejudice. E.g. , Wang , 569 F.3d at 539 n.6.
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Further, the BIA declined to consider the due-process claim in Johal’s motion to reopen because “a motion to reopen is not an opportu n ity to repeat previously considered and rejected arguments”. The BIA did not abuse its discretion. E.g. , Gomez-Palacios , 560 F.3d at 3 58; In re O-S-G , 2 4 I. & N. Dec. 56, 57-58 (BIA 2006); see also 8 U.S.C. § 1229a(c)(7)(B) (requiring a m otion to reopen to “state the new facts that will b e proven at a hearing to be held if the motion is granted”). R e garding his incorrect-legal-standard claim r e lating to his motion t o reopen, Johal contends the BIA inserted a nonexi s t e nt requirement that the torture by police be sanctioned o fficially by o ther public officials. However, the BIA recognized a l i k e l i h o od of torture b y Indian p olice would qualify Johal for relief under the CAT; it denied relief in part because he failed to establish “that the police have m aintained interest i n h i m since 2004 when his wife visited India”. Johal fails to show application of an incorrect standard. J ohal also contends the BIA erroneously required a nexus between h i s religion o r p o l i t i cal affiliation and the likelihood of t o rture in denying his attempt to introduce n ew evidence from a news article in the motion to reopen. The B IA ruled Johal had not “sufficiently d emonstrated that the news article is relevant to his claims, where it does not reference torture of Sikhs or [Akali Dal Khalsa] activists”. Rather than requiring a n exus b e t w e e n the torture and a protected ground, the B IA was evaluating the r elevance of the article to Johal’s asserting h e is likely to be tortured b ecause of his past involvement with Akali Dal Khalsa, a Sikh s e p a r a t i s t party. He fails to show th e BIA abused its discretion in denying the motion to reopen on this basis. E.g. , Gomez-Palacios , 560 F.3d at 358. Regarding his ineffective-assistance-of-counsel claim, Johal asserts his counsel failed to seek an extension t o f i l e s upporting documents. In denying Johal’s motion to reopen, the BIA stated it would not “question prior c o u nsel’s strategic d ecision to n ot pursue a continuance, whe r e h e w as seeking to
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minimize the respondent’s time in detention”. The B IA further determined the failure to obtain a continuance did n ot prejudice Johal “because the documents would not have changed our conclusion that the r e s pondent did not establish that he is more likely th a n n o t to be tortured”. Johal has not shown abuse of discretion. E.g. , Gomez-Palacios , 560 F.3d at 358. Regarding the merits of his CAT

- r e l ief claim, Johal c ontests the BIA’s finding he failed t o establish the requisite probability of torture, which he raised in both his appeal to the BIA and his motion to reopen. E ligibility f o r r elief under the CAT is a factual decision. Zhang v. Gonzales , 432 F.3d 339, 344 (5th Cir. 2005). Accordingly, we lack jurisdiction t o review the BIA’s denying it. E.g. , 8 U.S.C. § 1252(a)(2)(C); Escudero-Arciniega v . Holder , 702 F.3d 781, 785 (5th Cir. 2012); Assaad v. Ashcroft , 378 F.3d 471, 474 (5th Cir. 2004). DENIED in part and DISMISSED in part.

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