In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3067

DILIPKUMAR PATEL,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review from an 

Order of the Board of Immigration Appeals.

No. A097 838 086 

SUBMITTED APRIL 14, 2009—DECIDED SEPTEMBER 16, 2009

Before KANNE, ROVNER and WOOD, Circuit Judges.

WOOD, Circuit Judge. Dilipkumar Patel, a citizen of

India, illegally entered the United States in December 2004

and was placed in removal proceedings in January 2007.

Patel conceded removability but applied for withholding

of removal on the basis of past persecution. Initially, he

asserted that in 2004 he was attacked in India three

times on account of his religious and political beliefs.
2 No. 08-3067

During a hearing before the Immigration Judge (“IJ”),

however, Patel said instead that he was attacked for

“business reasons.” The IJ accordingly denied Patel’s

application, and the Board of Immigration Appeals (“BIA”)

affirmed that decision.

Patel petitions this court for review. He raises the

following four arguments: (1) the IJ abused his discretion

by refusing to continue Patel’s hearing; (2) substantial

evidence does not support the BIA’s conclusion that he

does not have a well-founded fear of persecution; (3) the

BIA erred by rejecting Patel’s claims for asylum and

relief under the Convention Against Torture; and (4) he

is entitled to a new hearing because he received ineffective assistance of counsel the first time around. Our

jurisdiction is questionable with respect to some of these

arguments, and we find the rest to be without merit.

We thus dismiss in part and deny the rest.

We first take up Patel’s complaint about the IJ’s

refusal to give him a continuance. Two months before the

November 15 hearing, Patel’s attorney made this request. The attorney explained in a letter that he needed the

continuance because he had another hearing scheduled

at the same time as Patel’s hearing. The IJ denied the

request, and Patel’s attorney managed to arrange things

so that he could appear. During the hearing, however, the

attorney offered a new reason why a continuance was

still necessary: Patel needed more time to obtain additional documents. The IJ was not moved to change his

ruling, and the BIA expressly found that the IJ had

acted within his discretion in this respect.
No. 08-3067 3

Under the law as it currently stands in this court, we

may lack jurisdiction to review (as a stand-alone matter)

the denial of a request for a continuance. Ali v. Gonzales,

502 F.3d 659, 660-61 (7th Cir. 2007). We recognize that

the Supreme Court recently granted certiorari in a related

case, Kucana v. Mukasey, 533 F.3d 534 (7th Cir. 2008), and

thus it is possible that the Court’s decision in

Kucana may require a change in Ali as well. See Kucana v.

Holder, 129 S. Ct. 2075 (2009). There is no need to hold

Patel’s case for Kucana, however. To the extent that Patel

is asking us to review the order of removal, we have

jurisdiction under 8 U.S.C. § 1252(b). And if the Court

rules that we would have independent jurisdiction over

the denial of continuance, that change would not help

Patel, because his claim fails on the merits. We would

review the denial of a continuance only for an abuse

of discretion. Hassan v. INS, 110 F.3d 490, 492 (7th Cir.

1997). Here, as the BIA noted, the IJ acted reasonably in

refusing to continue the hearing. Patel had known of the

removal proceedings since February 2007; he had been

represented by counsel since March 1, 2007; he already

had received multiple continuances before November 15;

the original request for a continuance did not mention

any need for extra time in order to obtain documents;

Patel did obtain police reports relating to the three

attacks; and Patel has never identified what additional

evidence he would have obtained with more time. We

therefore dismiss this part of the petition for lack of

jurisdiction; in the alternative, we deny it for lack of merit.

Next, we turn to Patel’s attack on the BIA’s conclusion

that he did not have a well-founded fear of persecution,
4 No. 08-3067

based either on past persecution or future persecution.

This finding is critical both to any claim for asylum that

he may have and to his effort to win withholding of

removal. An alien qualifies for withholding of removal if

she proves “a clear probability” that she will face persecution. INS v. Stevic, 467 U.S. 407, 413 (1984); see 8 U.S.C.

§ 1231(b)(3); Dong v. Gonzales, 421 F.3d 573, 576 (7th Cir.

2005). A showing of past persecution—infliction of

harm on account of a protected ground—creates a

rebuttable presumption of future persecution. 8 C.F.R.

§ 208.16(b)(1)(i); Dong, 421 F.3d at 576-77.

Patel nipped his own asylum argument in the bud

when he specifically waived it during his November 15

hearing. That was a reasonable thing to do, because

despite the fact that Patel had filled out an application

for asylum, he had failed to submit that application

within one year of his arrival in the United States and

thus was ineligible for asylum under the ordinary rules.

See 8 U.S.C. § 1158(a)(2)(B). “Extraordinary circumstances” could excuse the failure to apply within the

permitted time, see 8 U.S.C. § 1158(a)(2)(D), but the

only excuses Patel offered were that he did not know of

the one-year requirement and that he was afraid of deportation. There are several reasons why these arguments

cannot succeed. First, as the government points out, Patel’s

waiver means that he never presented this claim to the

agency, and thus he failed to exhaust it. That failure

precludes our consideration of this point. Zeqiri v. Mukasey,

529 F.3d 364, 369-70 (7th Cir. 2008). Second, we have

considered the determination of extraordinary circumstances for this purpose to be a fact-bound inquiry that
No. 08-3067 5

falls outside our jurisdiction. Khan v. Filip, 554 F.3d 681,

687 (7th Cir. 2009). Finally, we add for the sake of completeness that neither of his excuses strikes us as anything extraordinary.

Patel bases his claim for withholding of removal on

past persecution. He argues that the three attacks he

suffered in 2004 were on account of his religion— Hinduism—and his political activities with India’s Congress

Party. The IJ accepted Patel’s testimony that the attacks

occurred, but he found that business reasons, not

politics or religion, motivated the attacks. The BIA

agreed with this finding. Because the BIA’s opinion

adopts and supplements the IJ’s opinion, our review

encompasses both. Pavlyk v. Gonzales, 469 F.3d 1082, 1087

(7th Cir. 2006). We would grant the petition only if the

decision is not “ ‘supported by reasonable, substantial, and

probative evidence.’ ” Mema v. Gonzales, 474 F.3d 412,

416 (7th Cir. 2007).

The record here contains ample evidence supporting

the BIA’s ruling. On November 15, 2007, Patel testified

in front of the IJ. During that testimony, Patel repeatedly

said that he was attacked because of his business. The

following are four examples of such testimony:

! A [Patel]: They were—it was effecting [sic] their

business because I was doing business in their

area that was the leveraging of the shops and all

that, and they were threatening me that I should

leave the city of Ahmedabad. So they were telling

me—they were threatening me to leave that city

because it was effecting [sic] their business. . . .
6 No. 08-3067

! Q [Attorney for the Department of Homeland

Security]: So these incidents didn’t happen to you

because of your political beliefs, did they—did

it? A: [Patel] No, the incidents that happened with

those two people were because of the business

reasons. . . . 

! Q [IJ]: Well do you know why these people attacked you? A: [Patel] It was because of the business, because my business was doing very well

over there, and their business was not doing,

was not doing so well.

! Q [IJ]: Well why did these two people threaten

and beat you? A [Patel]: It was, it was because

of the business reasons. They said my business is

doing well and theirs is not doing well.

Furthermore, while Patel’s application alleged that

politics motivated the attacks, Patel admitted during the

hearing that he had limited involvement in politics

after 2002. His involvement was so limited, in fact, that

Patel did not know that his political party had won the

national elections in 2004.

Patel also failed to offer any evidence that would

support a finding of a likelihood of future persecution.

He claimed at the hearing that his father warned him to

remain in the United States because the attackers were

still looking for him, but Patel admitted that any

future attacks would occur “because of the business.” The

Board’s decision was well supported in all respects, and

we thus deny Patel’s petition for review from its decision

not to grant withholding of removal.
No. 08-3067 7

Patel has also included in his petition to this court a

claim that he qualifies for relief under the Convention

Against Torture. Like his asylum claim, however, he

never requested this relief from either the IJ or the BIA.

He has therefore waived it.

Finally, Patel argues that this court should remand this

case for a new hearing because Patel received ineffective

assistance of counsel. While we doubt the merit of this

argument, we lack jurisdiction to consider it. Patel

raised this issue before the BIA for the first time in a

motion to reopen. He filed that motion after petitioning

this court for review of his final order of removal. The

BIA denied it on December 24, 2008, and Patel has not

filed a petition for review of that decision. Without a

separate petition, we lack jurisdiction to review this

argument. See Youkhana v. Gonzales, 460 F.3d 927, 933-34

(7th Cir. 2006).

* * *

We DISMISS the petition for review in part and DENY

the remainder of the petition.

9-16-09