                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 10-1651


RAJNIKANT PATEL,

                Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Submitted:   January 28, 2011               Decided:   March 4, 2011


Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.


Petition denied by unpublished per curiam opinion.


James   Feroli,  IMMIGRATION    AND  REFUGEE   APPELLATE  CENTER,
Alexandria, Virginia, for Petitioner.       Tony West, Assistant
Attorney General, Emily Anne Radford, Assistant Director, Kohsei
Ugumori, Office    of   Immigration  Litigation,   UNITED  STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Rajnikant Patel, a native of India and a citizen of

Kenya, was first ordered removed in December 2004, following a

merits    hearing       in    immigration               court    on    his     application    for

asylum,       withholding          of     removal,         and        protection    under    the

Convention Against Torture (“CAT”).                             The Board of Immigration

Appeals (“Board”) affirmed the order of removal and dismissed

Patel’s appeal.           This court granted Patel’s petition for review

in    part,    and     remanded         the    case        to    the     Board     for    further

consideration of Patel’s claim under the CAT.                                     See Patel v.

Gonzales,       221     F.        App’x    244          (2007)    (unpublished).             More

particularly, this court remanded the case for consideration of

whether the Kenyan government would acquiesce in Patel’s torture

by a private actor, a human trafficker and smuggler identified

as “Raju” and, as a necessary predicate, whether the harm Patel

feared rose to the level of torture.                        Id. at 245-46 & n.2.

              The Board in turn remanded to the immigration court

for   further       proceedings.              The       Immigration       Judge    (“IJ”)    held

another hearing and accepted additional evidence and argument,

after    which      the      IJ    rejected         Patel’s      CAT     claim     and    entered

another order of removal.                   Patel appealed to the Board, which

affirmed      the     IJ’s    decision         and       dismissed       his    appeal.      This

petition for review timely followed.



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               To qualify for protection under the CAT, a petitioner

must demonstrate that “it is more likely than not that he or she

would     be    tortured     if    removed         to    the       proposed         country     of

removal.”        8 C.F.R. § 1208.16(c)(2) (2010).                             Specifically, a

petitioner must show that he will be subject to “severe pain or

suffering,      whether      physical     or       mental      .    .    .     by   or    at   the

instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.”                                        8

C.F.R. § 1208.18(a)(1) (2010); see Saintha v. Mukasey, 516 F.3d

243, 246 & n.2 (4th Cir. 2008).                     The applicant need not prove

that he would be tortured on account of a protected ground.

Camara v. Ashcroft, 378 F.3d 361, 371 (4th Cir. 2004).                                      Under

the “acquiescence” theory, it is sufficient for the applicant to

show    “that     the      public       official,        prior           to    the       activity

constituting      torture,        [has]    awareness           of       such    activity       and

thereafter       breach[es]       his     or       her   legal          responsibility          to

intervene to prevent such activity.”                      8 C.F.R. § 1208.18(a)(7)

(2010).

               This court reviews for substantial evidence the denial

of   relief     under   the    Convention          Against         Torture.          Lizama     v.

Holder, __ F.3d __, 2011 WL 149874, at *7 (4th Cir. Jan. 19,

2011); Dankam v. Gonzales, 495 F.3d 113, 124 (4th Cir. 2007).

In conducting substantial evidence review, this court treats the

Board’s    findings     of    fact      “as    conclusive           unless      the      evidence

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before the BIA was such that any reasonable adjudicator would

have been compelled to conclude to the contrary.”                             Haoua v.

Gonzales, 472 F.3d 227, 231 (4th Cir. 2007).                        Because both the

IJ and the Board issued opinions in this case, we will review

both decisions on appeal.                 Kourouma v. Holder, 588 F.3d 234,

239-40 (4th Cir. 2009).

              We     hold     that      substantial     evidence        supports      the

dispositive        legal    conclusions     reached     by    the    IJ,    which   were

affirmed by the Board.             First, Patel’s evidence does not compel

the conclusion that it is more likely than not that he would be

subject to conduct rising to the level of torture if returned to

Kenya.    The IJ properly relied on Gandziami-Mickhou v. Gonzales,

445   F.3d    351,    358-59      (4th    Cir.   2006),    to    decline     to   afford

substantial        weight    to   the    affidavits     and     letters     written    by

Patel’s family members and friends to support this contention.

Moreover,     the    IJ     accurately     identified     material      discrepancies

between      these    supporting        documents   that      further      called   into

question the veracity of that evidence.

              Substantial evidence also supports the IJ’s finding,

affirmed by the Board, that Patel failed to establish that the

alleged torture would be performed with the Kenyan government’s

acquiescence.        We have reviewed the record evidence and conclude

that it simply does not compel a contrary conclusion.



                                            4
               Finally,    the      Board     was    correct    in     concluding       that

Patel     had    waived       his     claim       under   the    Convention        Against

Transnational         Organized     Crime     by    failing     to    raise   it   at    his

administrative hearing.             See In re R-S-H-, 23 I. & N. Dec. 629,

638 (B.I.A. 2003) (explaining Board would not consider on appeal

claim of error that was not raised at administrative hearing);

In re Edwards, 20 I. & N. Dec. 191, 196-97 n.4 (B.I.A. 1990)

(same).     Consideration of this claim was also precluded by the

mandate rule, as it was not presented to this court in Patel’s

first petition for review.               See Doe v. Chao, 511 F.3d 461, 465

(4th Cir. 2007) (explaining that the mandate rule dictates that

“any issue that could have been but was not raised on appeal is

waived     and    thus        not    remanded”       (internal        quotation      marks

omitted)).       This argument was available to Patel at the time of

his first petition for review, as it does not rely on a change

in the law, present newly discovered evidence, or purport to

correct a blatant error to prevent a serious injustice.                            See id.

at 467.     Thus, it was not properly before the Board when raised

for the first time in Patel’s second administrative appeal.                             See

Volvo Trademark Holding Aktiebolaget v. Clark Mach. Co., 510

F.3d    474,    481    (4th    Cir.    2007)       (“[U]nder    the    mandate     rule    a

remand proceeding is not the occasion for raising new arguments

or legal theories.”).



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           Accordingly,   we   deny       the   petition   for     review.      We

dispense   with   oral    argument    because       the    facts     and     legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                             PETITION DENIED




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