     Case: 13-60116      Document: 00512722632         Page: 1    Date Filed: 08/05/2014




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

                                                                                    FILED
                                    No. 13-60116                               August 5, 2014
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
AMIRALI NAJARALI MOMIN; SULTANA AMIRALI MOMIN,

                                                 Petitioners

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                 Respondent


                       Petitions for Review of an Order of the
                           Board of Immigration Appeals
                               BIA No. A 099 577 276
                               BIA No. A 099 577 277


Before WIENER, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Amirali Najarali Momin (Momin) and his wife Sultana Amirali Momin,
natives and citizens of India, petition this court to review the decision of the
Board of Immigration Appeals (BIA) affirming the decision of the immigration
judge (IJ) denying Momin’s applications for asylum, withholding of removal,




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-60116      Document: 00512722632        Page: 2    Date Filed: 08/05/2014


                                    No. 13-60116

and protection under the Convention Against Torture (CAT). 1 Momin contends
that the BIA applied the wrong standard of review in reviewing the IJ’s
decision denying his applications. He further argues that the BIA’s decision is
not supported by substantial evidence because he provided sufficient evidence
of past persecution and a well-founded fear of future persecution on account of
his Muslim religion.
      Generally, this court reviews only the final decision of the BIA. Zhu v.
Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). When, as in the present case, the
BIA’s decision is affected by the IJ’s ruling, however, this court also reviews
the IJ’s decision. Id. Although this court reviews the legal conclusions of the
IJ and the BIA de novo, it reviews their factual findings for substantial
evidence. Majd v. Gonzales, 446 F.3d 590, 594 (5th Cir. 2006). 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.’” Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005) (quoting
Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005)).
      Momin’s contention that the BIA applied the wrong standard of review
in reviewing the IJ’s decision is not supported by the record. The BIA correctly
applied the clearly erroneous standard to the IJ’s factual finding that Momin
failed to demonstrate the required nexus that the mistreatment he suffered in
India was due to his Muslim religion, a statutorily protected ground. See Thuri
v. Ashcroft, 380 F.3d 788, 791 (5th Cir. 2004) (noting that an IJ’s determination
that an asylum applicant failed to demonstrate the requisite nexus between
persecution and protected ground was a question of fact).                Furthermore,
substantial evidence supports the BIA’s finding that the Hindu extremists’



      1  Sultana Amirali Momin applied as a derivative beneficiary of Momin’s application
for asylum.


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                                    No. 13-60116

motive for targeting Momin was not his Muslim religion, but rather extortion.
Similarly, Momin’s own testimony indicated that his detention by Indian
authorities in 2002 was not on account of his Muslim religion, but rather
because he was suspected of being a Pakistani agent. As the BIA concluded,
Momin failed to make the required nexus that “one central reason” for his
mistreatment was due to a statutorily protected ground. See Shaikh v. Holder,
588 F.3d 861, 863-64 (5th Cir. 2009) (citation and internal quotation marks
omitted). Accordingly, the record does not compel the contrary conclusion that
Momin is entitled to asylum. See Zhang, 432 F.3d at 344. Because Momin
cannot demonstrate that he is eligible for asylum, he also cannot show that he
meets the higher standard for withholding of deportation. See Faddoul v. INS,
37 F.3d 185, 188 (5th Cir. 1994).
      Substantial evidence also supports the BIA’s determination that Momin
did not satisfy his burden for relief under the CAT. See Ontunez-Tursios v.
Ashcroft, 303 F.3d 341, 354 (5th Cir. 2002). Although there is no dispute that
Momin was tortured in 2002 by the Indian authorities, Momin remained in
India without incident for an additional three years. In fact, as the BIA and
the IJ noted, Momin showed no fear in reporting the 2005 incident with Hindu
extremists to the Indian authorities. Further, Momin acknowledged that his
parents and siblings live in other areas of India, and that they have not
experienced any issues with Hindu extremists or the Indian authorities.
Momin further acknowledged that he has never attempted to relocate in
another part of India. See 8 C.F.R. § 208.16(c)(3)(ii) (directing consideration of
“[e]vidence that the applicant could relocate to a part of the country of removal
where he or she is not likely to be tortured”); Arce v. Holder, 449 F. App’x 404,
406-07 (5th Cir. 2011). The evidence does not compel a finding that it is more
likely than not that Momin would be tortured upon removal to India.



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                                 No. 13-60116

Accordingly, Momin has failed to show error on the part of the BIA in denying
him relief under the CAT.
      Momin also fails to show error on the part of the BIA in considering the
denial of his asylum and withholding of removal claims “final” as of its June
18, 2009 decision. The BIA specifically ordered that “[t]he appeal is dismissed
with respect to asylum and withholding of removal” and that “[t]he record is
remanded to the Immigration Court for further proceedings regarding
protection under CAT consistent with the foregoing opinion and entry of a new
decision.” As the BIA concluded, this was a final decision by which the BIA
was bound. See 8 C.F.R. § 1003.1(d)(7)). Accordingly, the subsequent attempts
by Momin to reintroduce evidence in support of his asylum and withholding of
removal claims were properly construed as motions to reopen. See 8 C.F.R.
§ 1003.2. Further, our dismissal of Momin’s initial petition for review for lack
of jurisdiction was proper given that there was no final order of removal. See
8 U.S.C. § 1252(a)(1). Thus, Momin’s arguments regarding the BIA’s June 18,
2009 decision are unavailing. As such, he has shown no abuse of discretion on
the part of the BIA for denying his motion to reconsider. See Zhao, 404 F.3d
at 303.
      Accordingly, the petitions for review are DENIED.




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