IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 citizen 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 proceeding. 

Johal contends: he was denied due process 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

United States Court of Appeals

Fifth Circuit

F I L E D

June 26, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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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 legal claims 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 173, 180 (5th Cir. 2012). Such claims raised before 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 felony (controlled-substance

offense), we have jurisdiction to review only constitutional or legal questions. 

8 U.S.C. § 1252(a)(2)(C), (D) (review for certain felons’ immigration claims

limited to constitutional or legal issues); Larin-Ulloa v. Gonzales, 462 F.3d 456,

460-61 (5th Cir. 2006). 

Regarding his due-process claim, Johal asserts the IJ excluded from the

record the supporting documentation for his claim, after finding it was filed

untimely. Although the Government maintains Johal failed to exhaust this

claim before the BIA, we assume without deciding that the question is properly

before us, and overrule it on another basis. Wang v. Holder, 569 F.3d 531, 540

(5th Cir. 2009).

Johal’s counsel acknowledged during the 19 October 2011 removal hearing

he had been advised of: the 5 October 2011 deadline for filing supporting

documentation; and, the consequences of missing that deadline. Counsel

conceded the documents were untimely and should not be accepted into the

record. Further, Johal “never requested a continuance or 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 not waived, Johal was required to “show substantial prejudice” to

establish a due-process violation. Bouchikhi, 676 F.3d at 180. His conclusory

assertions of how the documents would have corroborated his claim are

insufficient to establish 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 opportunity to repeat

previously considered and rejected arguments”. The BIA did not abuse its

discretion. E.g., Gomez-Palacios, 560 F.3d at 358; In re O-S-G, 24 I. & N. Dec. 56,

57-58 (BIA 2006); see also 8 U.S.C. § 1229a(c)(7)(B) (requiring a motion to reopen

to “state the new facts that will be proven at a hearing to be held if the motion

is granted”). 

Regarding his incorrect-legal-standard claim relating to his motion to

reopen, Johal contends the BIA inserted a nonexistent requirement that the

torture by police be sanctioned officially by other public officials. However, the

BIA recognized a likelihood of torture by Indian police would qualify Johal for

relief under the CAT; it denied relief in part because he failed to establish “that

the police have maintained interest in him since 2004 when his wife visited

India”. Johal fails to show application of an incorrect standard.

Johal also contends the BIA erroneously required a nexus between his

religion or political affiliation and the likelihood of torture in denying his

attempt to introduce new evidence from a news article in the motion to reopen. 

The BIA ruled Johal had not “sufficiently demonstrated 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 nexus between the torture and a

protected ground, the BIA was evaluating the relevance of the article to Johal’s

asserting he is likely to be tortured because of his past involvement with Akali

Dal Khalsa, a Sikh separatist party. He fails to show the 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 to file supporting documents. In denying

Johal’s motion to reopen, the BIA stated it would not “question prior counsel’s

strategic decision to not pursue a continuance, where he was seeking to

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minimize the respondent’s time in detention”. The BIA further determined the

failure to obtain a continuance did not prejudice Johal “because the documents

would not have changed our conclusion that the respondent did not establish

that he is more likely than not 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-relief claim, Johal contests the BIA’s

finding he failed to establish the requisite probability of torture, which he raised

in both his appeal to the BIA and his motion to reopen. Eligibility for relief

under the CAT is a factual decision. Zhang v. Gonzales, 432 F.3d 339, 344 (5th

Cir. 2005). Accordingly, we lack jurisdiction to 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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