* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

July 19, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-60521

Summary Calendar

 

AKBAR NOOR-MOHAMMAD KADIVAL,

Petitioner,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

Respondent.

--------------------

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A78 567 265

--------------------

Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

Akbar Noor-Mohammad Kadival has petitioned for review of the

decision of the Board of Immigration Appeals (“BIA”) adopting and

affirming the decision of the Immigration Judge denying his

application for withholding of removal and for relief under the

Convention Against Torture (“CAT”). 

This court generally reviews only the BIA’s decision, not

that of the IJ, except to the extent that the IJ’s decision

influences the BIA. Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.
No. 04-60521

- 2 -

1997). Because the BIA summarily affirmed the IJ’s decision,

however, the IJ’s decision is the final agency determination for

judicial review. See id.; Soadjede v. Ashcroft, 324 F.3d 830,

832 (5th Cir. 2003) (BIA’s summary affirmance procedure does not

deprive court of basis for judicial review).

The determination that Kadival is not eligible for

withholding of removal is a factual finding reviewed under the

substantial-evidence standard. Efe v. Ashcroft, 293 F.3d 899,

906 (5th Cir. 2002). The substantial-evidence standard requires

only that the BIA’s conclusion be based on the evidence presented

and be substantially reasonable. Carbajal-Gonzalez v. INS, 78

F.3d 194, 197 (5th Cir. 1996). This court must defer to the

BIA’s decision unless the evidence compels a contrary conclusion. 

See INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). 

“To be eligible for withholding of removal, an applicant

must demonstrate a ‘clear probability’ of persecution upon

return.” Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004). 

“A clear probability means that it is more likely than not that

the applicant’s life or freedom would be threatened by

persecution on account of either his race, religion, nationality,

membership in a particular social group, or political opinion.” 

Id. To establish “persecution,” the alien must show that he will

suffer harm to punish him for possessing a belief or

characteristic a persecutor seeks to overcome. Faddoul v. INS,

37 F.3d 185, 188 (5th Cir. 1994). The alien must present
No. 04-60521

- 3 -

specific facts demonstrating a reason to fear that he will be

singled out for persecution because of his race, religion,

nationality, membership in a particular social group, or

political opinion. Id. 

Kadival, a Muslim, contends that he will be subject to

persecution by the Shiv Sena, a Hindu group, if he returns to

India. Kadival does not address directly the IJ’s determinations

with regard to his credibility and his ability to avoid religious

violence by relocating. See 8 C.F.R. § 208.16(b). Instead, he

argues that the record shows that conditions for Muslims

generally have deteriorated further. 

The IJ’s determinations, that Kadival had not shown a clear

probability of persecution on his return to India and that it was

reasonable for Kadival to avoid persecution by relocating within

India, were supported by substantial evidence. See Roy, 389 F.3d

at 138. Kadival has not shown that the record compels a contrary

conclusion. See Faddoul, 37 F.3d at 188. 

To warrant the grant of a petition for review regarding a

CAT claim, the record must compel a finding that Kadival met his

burden to show that it was more likely than not that he would be

tortured if returned to India. See Bah v. Ashcroft, 341 F.3d

348, 352 (5th Cir. 2003). 

Although Kadival insists that the Shiv Sena has ties to the

government and there is some support for this contention in the

record, he does not present any argument with regard to the IJ’s
No. 04-60521

- 4 -

determination that he could reasonably relocate within India to

avoid the Shiv Sena. The IJ’s determination that Kadival is not

entitled to relief under the CAT is supported by substantial

evidence and Kadival has not shown that the record compels a

contrary conclusion. See Bah, 341 F.3d at 352. 

Kadival contends that the proceedings were terminated

because Notice to Appear bore an incorrect date. Because the

issue was not briefed, it is waived. See Communication Workers

of America v. Ector County Hosp. Dist., 392 F.3d 733, 748 (5th

Cir. 2004). 

The petition for review of the BIA’s decision is DENIED.