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

                                                 FILED
                                                                          October 20, 2009
                                     No. 08-61047
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk




ABERLARDO TREJO-ROBLES,

                                                   Petitioner,

versus

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

                                                   Respondent.




                          Petition for Review of an Order of
                          the Board of Immigration Appeals
                                  No. A94 932 230




Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*


       Aberlardo Trejo-Robles petitions for review of a deportation order from the
Board of Immigration Appeals (“BIA”). We deny the petition.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-61047

                                         I.
      Trejo-Robles, a Mexican national, attempted in 2007 to enter the United
States at a port of entry without a valid entry document. After being placed in
removal proceedings, he applied for political asylum, requested withholding of
removal, and sought protection under the United Nations Convention Against
Torture (“CAT”). The basis of these requests was his purported fear of persecu-
tion by two Mexican gangs and by corrupt Mexican police officers who work with
the gangs.
      After a hearing, the immigration judge (“IJ”) denied relief on all grounds.
With respect to the requests for asylum and withholding of removal, the IJ
found that Trejo-Robles could not show, as was required by law, well-founded
fear of persecution related to race, religion, nationality, membership in a partic-
ular social group, or political opinion. With respect to the request under the
CAT, the IJ found that Trejo-Robles had not shown a clear probability that he
would be tortured by or with the consent or acquiescence of the Mexican govern-
ment. The IJ noted, in particular, that the acts of individual renegade police
officers did not constitute official sanction of torture.
      The BIA affirmed, and Trejo-Robles filed a timely petition for review.
While this petition was pending, he filed a motion for reconsideration with the
BIA, which the BIA denied.


                                         II.
      The government asks us to dismiss this petition summarily, because Trejo-
Robles has not appealed from the BIA’s denial of his motion for reconsideration.
The government seems to suggest that a motion for reconsideration eliminates
the finalitySSand thus, reviewabilitySSof the BIA’s original order. “[A] depor-
tation order is final, and reviewable, when issued. Its finality is not affected by
the subsequent filing of a motion to reconsider.” Stone v. INS, 514, U.S. 386, 405

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(1995). We proceed, therefore, to the merits of the petition.


                                         III.
      “When, as here, the BIA affirms the [IJ] and relied on the reasons set forth
in the [IJ’s] decision, this court reviews the decision of the [IJ] as well as the de-
cision of the BIA.” Ahmed v. Gonzales, 447 F.3d 433, 437 (5th Cir. 2006). We re-
view the IJ’s factual findings that an alien is not eligible for asylum, withholding
of removal, or relief under the CAT under the substantial evidence standard,
which permits reversal only where “the evidence not only supports the conclu-
sion, but compels it.” Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005). We
review questions of law de novo. Sung v. Keisler, 505 F.3d 372, 375 (5th Cir.
2007).


                                         IV.
      Trejo-Robles argues that the BIA failed to consider his request for protec-
tion under the CAT as distinct from his requests for asylum and withholding of
removal. He also contends that, to the extent the BIA did consider his CAT re-
quest, it applied the wrong legal standard.
      Neither argument has merit. First, the BIA unquestionably considered
Trejo-Robles’s CAT request on its own merits. After discussing the asylum and
withholding of removal requests, the BIA stated, “Finally, we agree [with the IJ]
that [Trejo-Robles] has also failed to establish eligibility for protection under the
[CAT] as he has not presented evidence establishing that it is more likely than
not that he would be subject to torture upon return to Mexico.” (Emphasis
added.) The BIA thus distinguished the CAT request and adopted the IJ’s rea-
son for dismissing it.
      Nor did the BIA apply an incorrect legal standard. To receive protection
under the CAT, an alien must prove it is “more likely than not” that he would be

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tortured “by or at the instigation of, or with the consent or acquiescence of a pub-
lic official or other person acting in an official capacity” if deported. 8 C.F.R.
§§ 1208.16(c)(2), 1208.18(a)(1). Trejo-Robles faults the BIA for citing Matter of
S-V-, 22 I&N Dec. 1306 (BIA 2000), because Trejo-Robles claims that decision re-
lied on an improper understanding of government acquiescence to torture. The
BIA’s decision, however, did not turn on a lack of government acquiescence to
torture, but rather on Trejo-Robles’s failure to prove that it was “more likely
than not” he would be tortured.
      We find no error of law or fact in the BIA’s or IJ’s opinion. The petition for
review is DENIED.




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