                                                                                            United States Court of Appeals
                                                                                                     Fifth Circuit
                                                                                                    F I L E D
                                                   In the                                          December 29, 2005
                         United States Court of Appeals                                          Charles R. Fulbruge III
                                       for the Fifth Circuit                                             Clerk
                                             _______________

                                              m 04-61084
                                            Summary Calendar
                                            _______________



                                       SAIYAD ALI MAKNOJIA,

                                                                                   Petitioner,

                                                  VERSUS

                                       ALBERTO R. GONZALES,
                                 UNITED STATES ATTORNEY GENERAL,

                                                                                   Respondent.


                                     _________________________

                                   Petition for Review of an Order of
                                   the Board of Immigration Appeals
                                            m A78 567 271
                                     _________________________




Before SMITH, GARZA, and PRADO,                               Saiyad Maknojia petitions for review of an
  Circuit Judges.                                          order of the Board of Immigration Appeals
                                                           (“BIA”) affirming the denial by an immigration
PER CURIAM:*                                               judge (“IJ”) of his application for withholding


   *                                                          *
    Pursuant to 5TH CIR. R. 47.5, the court has de-               (...continued)
termined that this opinion should not be published         and is not precedent except under the limited cir-
                                      (continued...)       cumstances set forth in 5TH CIR. R. 47.5.4.

                                                       1
of removal under § 241(b)(3)(A) of the                      nantly Muslim area in India to be free from
Immigration and Nationality Act and Article 3               religious reprisals.4
of the Convention Against Torture (“CAT”).1
Because the BIA’s decisions on both counts                      Likewise, Maknojia has not proven that it is
are supported by substantial evidence, we                   more likely than not that he would be tortured
affirm.2                                                    if returned to India. See 8 C.F.R. § 208.16-
                                                            (c)(2).     Under the CAT, he need not
    Maknojia bears the burden of proving by a               demonstrate a connection between the proba-
“clear probability”3 that it is more likely than            bility of future torture and his race, religion,
not that, if returned to his home country of                nationality, or political or social affiliation.
India, “[his] life or freedom would be threat-              Efe v. Ashcroft, 293 F.3d 899, 908 (5th Cir.
ened . . . because of [his] race, religion, nation-         2002). But, he must meet the “higher bar” of
ality, membership in a particular social group,             proving the likelihood of torture as opposed to
or political opinion.” 8 U.S.C. § 1231(b)-                  mere persecution. Id. Because his evidence
(3)(A). The IJ had substantial evidence, see                consists mainly of the same series of previous
Chun v. INS, 40 F.3d 76, 78-79 (5th Cir.                    unfortunate events used to support his perse-
1994), that Maknojia failed to meet this bur-               cution claim, the BIA did not err in finding
den.                                                        that he failed to meet his burden of proving
                                                            that he will probably face torture if returned to
   Although Maknojia alleged that on several                India.
occasions he and his family had faced perse-
cution on account of being Muslims living in a                 The petition for review is DENIED.
predominantly Hindu country, he did not show
that such persecution would likely occur upon
his return. Furthermore, the IJ noted that
approximately 120,000,000 Muslims live in
India, and Maknojia did not satisfactorily ex-
plain why he could not relocate to a predomi-


   1
      Because the BIA affirmed without extended
analysis, we may consider the IJ’s decision as the
final agency action for purposes of this petition for
review. Zhang v. Gonzales, 2005 U.S. App.
LEXIS 26147, at *5 (5th Cir. Dec. 1, 2005).
   2
      Maknojia does not allege extraordinary or
changed circumstances that would excuse his fail-
ure to file an application for asylum within one
year of his arrival in the United States, and we lack
jurisdiction to review the IJ’s determination of
untimeliness. 8 U.S.C. § 1158(a)(3). Therefore,
                                                               4
only withholding of removal is at issue.                         The IJ supported his holding by finding that
                                                            Maknojia’s wife, parents, and brother apparently
   3
       IRS v. Stevic, 467 U.S. 407, 413 (1984).             live in India.

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