           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          October 22, 2009

                                     No. 08-61048                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



ZULFICAR NURALI MAREDIYA,

                                                   Petitioner,
v.

ERIC H. HOLDER, JR. U.S. Attorney General,

                                                   Respondent.




                        Petition For Review of an Order of the
                           Board of Immigration Appeals
                                  No. A099 478 052


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Petitioner Zulficar Nurali Marediya (“Marediya”) seeks review of an order
of the Board of Immigration Appeals (“BIA”) denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture
(“CAT”). For the following reasons, we deny his petition for review.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-61048

      I.    BACKGROUND
      Petitioner, a native and citizen of India, entered the United States on
September 8, 2001, as a non-immigrant visitor with authorization to remain in
the United States for a temporary period not to exceed December 7, 2001. He
remained in the United States subsequent to that date. On February 1, 2006,
the Department of Homeland Security (“DHS”) issued Petitioner a Notice to
Appear (“NTA”), charging him with being removable as an alien who had
“remained in the United States for a time longer than permitted,” pursuant to
§ 237(a)(1)(B) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §
1227(a)(1)(B). Marediya admitted to the factual allegations in the NTA.
      On June 26, 2006, Petitioner filed an application for asylum, withholding
of removal, and CAT protection. In his application, he stated that he “suffered
religious persecution” and feared “that if [he] returned [to India, he] could be
killed by the Hindus.”
      On June 6, 2007, the Immigration Judge issued an oral decision denying
Marediya’s application for asylum, withholding of removal, and CAT protection.
On July 5, 2007, Marediya appealed the Immigration Judge’s decision to the
BIA. On October 22, 2008, the BIA affirmed the decision of the Immigration
Judge. Marediya filed the instant Petition for Review within the thirty days of
the date of the BIA’s final order of removal. Consequently, the review Petitioner
now seeks is timely before this Court.
      II.   ANALYSIS
            A.     STANDARD OF REVIEW
      “We review the Board’s factual findings to determine if they are supported
by substantial evidence.” Rojas v. I.N.S., 937 F.2d 186, 189 (5th Cir. 1991). “The
substantial evidence standard requires only that the [BIA’s] conclusion be based
upon the evidence presented and be substantially reasonable.” Ontunez-Tursios
v. Ashcroft, 303 F.3d 341, 350 (5th Cir. 2002) (citation omitted). As a result, “the


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administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude the contrary.” Roy v. Ashcroft, 389 F.3d 132, 137-
138 (5th Cir. 2004) (citing 8 U.S.C. § 1252(b)(4)(B)). “Under the substantial
evidence standard, reversal is improper unless we decide not only that the
evidence supports a contrary conclusion, but also that the evidence compels it.”
Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006) (quotations omitted).
       “When, as here, the BIA affirms the immigration judge and relies on the
reasons set forth in the immigration judge’s decision, this court reviews the
decision of the immigration judge as well as the decision of the BIA.” Ahmed v.
Gonzales,447 F.3d 433, 437 (5th Cir. 2006).
              B.      WHETHER SUBSTANTIAL EVIDENCE SUPPORTS THE
                      BIA’S DECISION

        Petitioner argues that we should reverse the BIA’s decision because “the
BIA and Immigration Judge’s decision finding that the government has met its
burden in overcoming the presumption of persecution is not supported by
substantial evidence.” We find, however, that substantial evidence supports the
BIA’s decision to affirm the Immigration Judge’s denial of Petitioner’s
withholding of removal.1
       “To be eligible for withholding of removal, an applicant must demonstrate
a clear probability of persecution upon return.” Roy, 389 F.3d at 138. “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



       1
         In his brief before this Court, Petitioner states that he requests review of “the denial
of withholding of removal.” Nowhere in his brief does he discuss the BIA’s decision in regards
to his application for asylum or his application for relief under CAT. Thus, because Petitioner
limits his request for review to the BIA's denial of withholding of removal, we will not address
the denial of his application for asylum or the denial of his application for relief under CAT.
Those issues are not presently before us, and consequently, warrant no further discussion.

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opinion.” Id. “[P]ersecution is an extreme concept that does not include every
sort of treatment our society regards as offensive.” Arif v. Mukasey, 509 F.3d
677, 680 (5th Cir. 2007). To establish “persecution,” Marediya must demonstrate
that “harm or suffering will be inflicted upon [him]in order to punish h[im] for
possessing a belief or characteristic a persecutor sought to overcome.” Id.
      In the present case, however, past persecution has been established
because the Immigration Judge concluded that Marediya suffered persecution
in India in 1993–when Hindu fundamentalists attacked him on account of his
religion, burning down his shop and leaving him with a broken leg and
collarbone. Thus, because past persecution has been established, “it is presumed
that the life or freedom of [Petitioner] would be threatened in the future in the
country of removal on the basis of th[is] original claim” of past persecution. Id.
at 680-681 (internal quotations omitted). “The government may rebut this
presumption by demonstrating that there has been a fundamental change in the
circumstances of the country of removal, or that the applicant could avoid a
future threat to his life or freedom by reasonably relocating to a different part
of the country of removal.” Id. at 681 (quoting 8 C.F.R. § 1208.16(b)(1)(i)).
Consequently, the question before the Court is whether substantial evidence on
the record supports the BIA’s conclusion that the government adequately
rebutted Marediya’s presumption of persecution resulting from the incident he
suffered in India in 1993.
      Upon review of the record, we conclude that substantial evidence does
support the administrative decision that the government adequately rebutted
the presumption created by the 1993 event of past persecution. To rebut this
presumption, the Government presented reports documenting the fundamental
changes that have occurred in India, the country of removal. See 8 C.F.R. §
1208.16(b)(1)(i)(A). In her decision issued on June 6, 2007, the Immigration
Judge noted that while the Government had presented recent documents

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demonstrating fundamental changes in the circumstances in India, the
documents “submitted by [Marediya we]re fairly outdated”–the most recent was
dated 2003. In contrast, the Government presented two State Department
reports, the International Religious Freedom Report and the Report on Human
Rights Practices for India, both of which were dated 2006. The evidence the
Government put forth in these reports documented that the “vast majority of
Indians of every religious faith lived in peaceful coexistence, however tensions
between religious groups were a problem in some areas.” Although there had
been outbreaks in the past, the Immigration Judge considered the evidence and
concluded that the “conditions in India have changed significantly since 1993
[because] the [Indian] government is taking steps to improve the conditions in
India on an ongoing basis.”
       Further, the Immigration Judge noted that although he suffered from an
act of persecution in 1993, during his administrative hearing, Marediya
“testified that he did not have any significant problems after the riots in 1993
involving Hindus.” That is, following the incident he suffered in 1993, Marediya
continued to live in India for eight years before he came to the United States in
2001. During that time, he suffered no religious persecution.
       Given the more recent State Department Reports the Immigration Judge
considered, coupled with the fact that Petitioner continued to live in India for
eight years after the first incident of persecution and suffered no further
persecution, we conclude that substantial evidence supports the BIA’s decision.2


       2
         Because we conclude that substantial evidence supports the conclusion that the
Government presented sufficient evidence regarding the fundamental changes in
circumstances in India to rebut the Petitioner’s presumption of persecution, see 8 C.F.R. §
1208.16(b)(1)(i)(A), we do not reach the question of whether substantial evidence in the record
exists to support the conclusion that the Government presented sufficient evidence to
demonstrate that Marediya could avoid future threat by moving to another area of the country.
See 8 C.F.R. § 1208.16(b)(1)(i)(B). Instead, we limit our holding to a finding that substantial
evidence supports the administrative decision that the Government presented adequate
evidence to rebut the presumption of persecution pursuant to 8 C.F.R. § 1208.16(b)(1)(i)(A).

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That is, the substantial evidence on record demonstrates that the Government
put forth sufficient evidence to rebut the presumption of future persecution
based on the 1993 event of past persecution, and as a result, Marediya has not
met his burden of establishing a “clear probability” of persecution in the future.
      Consequently, we cannot conclude that “the evidence compels” the reversal
of the BIA’s decision. Chen, 470 F.3d at 1134. For the aforementioned reasons,
Petitioner’s Petition for Review is DENIED.




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