                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT                        January 5, 2006

                                                             Charles R. Fulbruge III
                                                                     Clerk
                             No. 05-60087
                           Summary Calendar


                     JAHANGIR NAZARALI BUDHWANI,

                                                             Petitioner,

                                  versus

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

                                                             Respondent.


               Petition for Review of an Order of the
                     Board of Immigration Appeals
                             (A78 141 763)


Before BARKSDALE, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jahangir Nazarali Budhwani seeks review of the Board of

Immigration    Appeals’   (BIA)   affirmance   of   the   denial    by    an

Immigration Judge (IJ) of his petition for withholding of removal

under 8 U.S.C. § 1231(b)(3)(A) and withholding under Article 3 of

the United Nations Convention Against Torture (CAT). Budhwani also

contests the IJ’s denial of his requests for a continuance in the

light of his pending labor certification application.




     *
       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this opinion should not be published and is not precedent except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.
       On 16 October 2003, the IJ denied Budhwani’s petition for

withholding;   the   BIA   affirmed,       essentially   without   additional

analysis, on 24 January 2005.     Previously, on 6 May and 16 October

2003, the IJ had orally denied two motions for continuance to allow

Budhwani’s pending labor certificate application to proceed.

       Budhwani was born in India on 18 February 1964; he arrived in

the United States, illegally, on or about 22 July 1996.             Budhwani

is married with one child; his daughter is a United States citizen;

his wife is a native and citizen of Pakistan who also entered the

United States illegally.

       Budhwani’s entire family is Shi’a Muslim. While in the United

States, Budhwani converted to the Sunni faction of Islam.                 He

claims that, if he returns to India: (1) his family will shun him

because of his new faith; (2) Hindus will persecute him because he

is Sunni; and (3) the Sunni community will not trust him because he

is a convert, and will therefore not be willing/able to protect

him.

       Budhwani also claims:    the Shi’a community in India has no

problems because they follow Hindu customs and blend in with their

Hindu neighbors, but the same does not apply to Sunnis.              He says

that, as a Sunni, his faith will not allow him to do certain things

he would need to do to survive in India.             For example, Budhwani

would no longer be able to bribe officials, which he claims is a

customary Shi’a practice; and, his wife would not be willing to

change her dress. Budhwani also says he will be persecuted because

                                       2
he is married to a Pakastani woman.      He claims his wife will not be

able to live with him in India because she would be identified as

Pakistani and seen as a traitor, and that his religion does not

allow him to live apart from her.       Budhwani states that, in India,

his daughter will be persecuted because she is a Shi’a convert and

the daughter of a Pakastani.

       Budhwani has Muslim friends who have been beaten or detained

by the police on account of their religion.         In addition, the State

Department Country Reports on Human Rights Practices in India for

the Year 2002 states that violence by Hindu extremists against

Muslims and other religious minorities is not uncommon, and that it

often goes unpunished by the state and local governments charged

with maintaining law and order.          That report also states the

central government generally respects religious freedom.           Although

Budhwani had two interactions with the police in India, neither was

related to his religion, and neither resulted in detention or

persecution of any kind.

       Budhwani claims:     (1) the evidence compels reversal of the

decision denying him withholding of removal and withholding under

the CAT; and (2) we should reverse denials of his motions for a

continuance. Ordinarily, we review only BIA decisions; we consider

the IJ decision only if it impacted the BIA decision.               Efe v.

Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002).          Here, we review the

IJ’s   findings   because   the   BIA   affirmed,    essentially   without


                                    3
additional analysis, the IJ decision.                       We must uphold the IJ

decision unless the evidence compels the opposite outcome.                           See

Jukic v. I.N.S., 40 F.3d 747, 749 (5th Cir. 1994).

      An applicant is eligible for withholding of removal if he

shows a clear probability of persecution. Rojas v. I.N.S., 937 F.2d

186, 189 (5th Cir. 1991).              Persecution is defined as harm or

suffering inflicted to punish a person for holding a certain belief

or characteristic.        Faddoul v. I.N.S., 37 F.3d 185, 188 (5th Cir.

1994).      An applicant for withholding of removal must present

specific,      detailed      facts,   showing         he    was   singled      out   for

persecution, as well as a particularized connection between the

applicant’s      race,    religion,         nationality,          or   other     listed

characteristic.        Ganjour v. I.N.S., 796 F.2d 832, 837 (5th Cir.

1986).   The Attorney General must grant withholding of removal if

an applicant shows a clear probability of persecution.                       Id.

      For withholding under the CAT, the applicant must show it is

more likely than not that he will be tortured if sent back to his

home country.     Ontunez-Torsios v. Ashcroft, 303 F.3d 341, 354 (5th

Cir. 2002).      “Torture is an extreme form of cruel and inhuman

treatment.” 8 C.F.R. § 208.18(a)(2).                  It need not be based on a

particular view or characteristic. Amanfi v. Ashcroft, 328 F.3d

719, 725 (3d Cir. 2003).        Acts are not considered torture under the

CAT   unless    they   are    done    by,       or   with   the   approval     of,   the

government. 8 C.F.R. § 208.18(a)(1).

                                            4
            Budhwani testified:   if returned to India, he will be

turned away by his family and no longer protected from the Shi’a

community; he would be targeted by that community as a traitor.

When asked what the Shi’a community would do to target him,

Budhwani testified that, if there were Hindu-Muslim riots, he would

be turned over by Shi’a leaders to the police as a scapegoat.    He

testified that he would also be persecuted by Hindus because he is

a Muslim.    Although the IJ did not make an adverse credibility

determination, he did hold that Budhwani failed to demonstrate a

clear probability of persecution if he returns to India.

     The State Department report on India demonstrates some level

of religious persecution of Muslims.   Budhwani, however, has never

been persecuted.   Although he claims he will no longer be welcomed

by his family or protected from the Shi’a leaders, the record does

not compel a determination that Budhwani has established a clear

probability of persecution.

     In addition, Budhwani contends the IJ improperly failed to

consider India’s country conditions when denying withholding of

removal.    The IJ must consider country conditions, particularly

when addressing eligibility for relief under the CAT.      Efe, 293

F.3d at 903.

     The IJ did not fail to consider conditions inside India.   The

IJ’s opinion discusses:    (1) that state and local governments in

India only partially respect religious freedoms; (2) that Budhwani


                                  5
testified that Shi’a leaders have good relationships with the

authorities that Sunnis do not have; and (3) that Muslims are a

minority in India.         The IJ weighed those factors against:                 (1)

India’s central government generally respecting religious freedoms;

and (2) Budhwani having previously lived in India without any

problems.     The IJ concluded Budhwani failed to establish he was

likely to be persecuted or tortured in India.                   Again, the record

does not compel the opposite conclusion.

     Budhwani sought continuances from the IJ in order to petition

to adjust his status to that of legal resident alien, pursuant to

8 U.S.C. § 1255(i). That section provides:                   an illegal alien may

apply for adjustment of status if he filed a petition for “labor

certification ... pursuant to the regulations of the Secretary of

Labor on or before [30 April 2001]”. 8 U.S.C. § 1255(i)(1)(B)(ii).

The Attorney General may grant adjustment of status if the alien is

eligible    to   receive     a    visa    and    is    admissible   for   permanent

residency;    and   if   a   visa    is    immediately       available    when   the

application was filed.           Id. § 1255(i)(2).

     Budhwani claims the IJ abused his discretion in denying his

continuance      motions     in     the        light    of   his    pending   labor

certification.      The Government claims:              we lack jurisdiction to

review the IJ’s decision because that decision is left to the IJ’s

sound discretion; and, even if we have jurisdiction, the IJ did not

abuse his discretion.


                                           6
     INA § 242(a)(2)(B), codified at 8 U.S.C. § 1252(a)(2)(B)(ii),

precludes judicial review of certain decisions left to the Attorney

General’s discretion.     The Government incorrectly claims that

statute bars review of all decisions left to the Attorney General’s

discretion.   Zhao   v.   Gonzales,   404   F.3d   295,   303   (5th   Cir.

2005)(holding 8 U.S.C. § 1252(a)(2)(B)(ii) bars review only of

decisions made pursuant to “discretionary authority specified in

the statute”)(emphasis in original).        Because the discretion to

grant or deny continuance motions is authorized by regulation, we

retain jurisdiction to review such decisions.         Manzano-Garcia v.

Gonzales, 413 F.3d 462, 467 (5th Cir. 2005).

     Budhwani claims he is eligible to apply to adjust his status

to legal permanent resident because:    (1) he benefits from a labor

certificate filed before 20 April 2001; (2) but for the Department

of Labor’s delay in processing the labor certificate, he would

immediately apply for residency; and (3) employment visas are

immediately available.

     Budhawni filed a written motion for continuance on 16 October

2003, which also claimed visas were immediately available.             The

attorney who filed that motion did not represent Budhwani in the

proceedings before the IJ.   On two occasions, including once on 16

October 2003, two attorneys for Budhwani orally informed the IJ

that no visas were currently available; the Government made a

similar representation.    The record is unclear on whether the IJ


                                  7
ever saw the 16 October 2003 continuance motion, although it

appears he might have.     Even if the IJ did see that motion, in the

light of what was at best conflicting evidence regarding the

availability of visas and thus Budhwani’s eligibility to apply for

adjustment of status, it was not an abuse of discretion for the IJ

to hold Budhwani did not show the good cause required for a

continuance.    See 8 C.F.R. § 1003.29.

     Finally, Budhwani claims the denial of his continuance motions

raises “serious equal protection and due process issues” because it

treats him differently from others who are eligible for immediately

available visas and whose motions for continuance are granted.               It

is questionable, however, whether Budhwani was ever eligible for an

immediately    available   visa   when   he   moved   for    a   continuance.

Budhwani claims:    “Any distinction between immediately available

pending visa adjudications ... under 8 U.S.C. § 1255(i) would be

irrational”.    That, however, is exactly what the statute permits

when it gives the Attorney General discretion to grant or deny

adjustment of status to § 1255(i) applicants.               This exercise of

discretion is certainly not a constitutional violation.

                                                                    DENIED




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