                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-3067

D ILIPKUMAR P ATEL,
                                                          Petitioner,
                               v.

E RIC H. H OLDER, JR., Attorney General
of the United States,
                                                         Respondent.


                   Petition for Review from an
            Order of the Board of Immigration Appeals.
                         No. A097 838 086



   S UBMITTED A PRIL 14, 2009—D ECIDED S EPTEMBER 16, 2009




 Before K ANNE, R OVNER and W OOD , Circuit Judges.
  W OOD , Circuit Judge. Dilipkumar Patel, a citizen of
India, illegally entered the United States in December 2004
and was placed in removal proceedings in January 2007.
Patel conceded removability but applied for withholding
of removal on the basis of past persecution. Initially, he
asserted that in 2004 he was attacked in India three
times on account of his religious and political beliefs.
2                                               No. 08-3067

During a hearing before the Immigration Judge (“IJ”),
however, Patel said instead that he was attacked for
“business reasons.” The IJ accordingly denied Patel’s
application, and the Board of Immigration Appeals (“BIA”)
affirmed that decision.
  Patel petitions this court for review. He raises the
following four arguments: (1) the IJ abused his discretion
by refusing to continue Patel’s hearing; (2) substantial
evidence does not support the BIA’s conclusion that he
does not have a well-founded fear of persecution; (3) the
BIA erred by rejecting Patel’s claims for asylum and
relief under the Convention Against Torture; and (4) he
is entitled to a new hearing because he received ineffec-
tive assistance of counsel the first time around. Our
jurisdiction is questionable with respect to some of these
arguments, and we find the rest to be without merit.
We thus dismiss in part and deny the rest.
  We first take up Patel’s complaint about the IJ’s
refusal to give him a continuance. Two months before the
November 15 hearing, Patel’s attorney made this re-
quest. The attorney explained in a letter that he needed the
continuance because he had another hearing scheduled
at the same time as Patel’s hearing. The IJ denied the
request, and Patel’s attorney managed to arrange things
so that he could appear. During the hearing, however, the
attorney offered a new reason why a continuance was
still necessary: Patel needed more time to obtain addi-
tional documents. The IJ was not moved to change his
ruling, and the BIA expressly found that the IJ had
acted within his discretion in this respect.
No. 08-3067                                                  3

  Under the law as it currently stands in this court, we
may lack jurisdiction to review (as a stand-alone matter)
the denial of a request for a continuance. Ali v. Gonzales,
502 F.3d 659, 660-61 (7th Cir. 2007). We recognize that
the Supreme Court recently granted certiorari in a related
case, Kucana v. Mukasey, 533 F.3d 534 (7th Cir. 2008), and
thus it is possible that the Court’s decision in
Kucana may require a change in Ali as well. See Kucana v.
Holder, 129 S. Ct. 2075 (2009). There is no need to hold
Patel’s case for Kucana, however. To the extent that Patel
is asking us to review the order of removal, we have
jurisdiction under 8 U.S.C. § 1252(b). And if the Court
rules that we would have independent jurisdiction over
the denial of continuance, that change would not help
Patel, because his claim fails on the merits. We would
review the denial of a continuance only for an abuse
of discretion. Hassan v. INS, 110 F.3d 490, 492 (7th Cir.
1997). Here, as the BIA noted, the IJ acted reasonably in
refusing to continue the hearing. Patel had known of the
removal proceedings since February 2007; he had been
represented by counsel since March 1, 2007; he already
had received multiple continuances before November 15;
the original request for a continuance did not mention
any need for extra time in order to obtain documents;
Patel did obtain police reports relating to the three
attacks; and Patel has never identified what additional
evidence he would have obtained with more time. We
therefore dismiss this part of the petition for lack of
jurisdiction; in the alternative, we deny it for lack of merit.
  Next, we turn to Patel’s attack on the BIA’s conclusion
that he did not have a well-founded fear of persecution,
4                                               No. 08-3067

based either on past persecution or future persecution.
This finding is critical both to any claim for asylum that
he may have and to his effort to win withholding of
removal. An alien qualifies for withholding of removal if
she proves “a clear probability” that she will face persecu-
tion. INS v. Stevic, 467 U.S. 407, 413 (1984); see 8 U.S.C.
§ 1231(b)(3); Dong v. Gonzales, 421 F.3d 573, 576 (7th Cir.
2005). A showing of past persecution—infliction of
harm on account of a protected ground—creates a
rebuttable presumption of future persecution. 8 C.F.R.
§ 208.16(b)(1)(i); Dong, 421 F.3d at 576-77.
  Patel nipped his own asylum argument in the bud
when he specifically waived it during his November 15
hearing. That was a reasonable thing to do, because
despite the fact that Patel had filled out an application
for asylum, he had failed to submit that application
within one year of his arrival in the United States and
thus was ineligible for asylum under the ordinary rules.
See 8 U.S.C. § 1158(a)(2)(B). “Extraordinary circum-
stances” could excuse the failure to apply within the
permitted time, see 8 U.S.C. § 1158(a)(2)(D), but the
only excuses Patel offered were that he did not know of
the one-year requirement and that he was afraid of depor-
tation. There are several reasons why these arguments
cannot succeed. First, as the government points out, Patel’s
waiver means that he never presented this claim to the
agency, and thus he failed to exhaust it. That failure
precludes our consideration of this point. Zeqiri v. Mukasey,
529 F.3d 364, 369-70 (7th Cir. 2008). Second, we have
considered the determination of extraordinary circum-
stances for this purpose to be a fact-bound inquiry that
No. 08-3067                                               5

falls outside our jurisdiction. Khan v. Filip, 554 F.3d 681,
687 (7th Cir. 2009). Finally, we add for the sake of com-
pleteness that neither of his excuses strikes us as any-
thing extraordinary.
  Patel bases his claim for withholding of removal on
past persecution. He argues that the three attacks he
suffered in 2004 were on account of his religion— Hindu-
ism—and his political activities with India’s Congress
Party. The IJ accepted Patel’s testimony that the attacks
occurred, but he found that business reasons, not
politics or religion, motivated the attacks. The BIA
agreed with this finding. Because the BIA’s opinion
adopts and supplements the IJ’s opinion, our review
encompasses both. Pavlyk v. Gonzales, 469 F.3d 1082, 1087
(7th Cir. 2006). We would grant the petition only if the
decision is not “ ‘supported by reasonable, substantial, and
probative evidence.’ ” Mema v. Gonzales, 474 F.3d 412,
416 (7th Cir. 2007).
  The record here contains ample evidence supporting
the BIA’s ruling. On November 15, 2007, Patel testified
in front of the IJ. During that testimony, Patel repeatedly
said that he was attacked because of his business. The
following are four examples of such testimony:
    ! A [Patel]: They were—it was effecting [sic] their
        business because I was doing business in their
        area that was the leveraging of the shops and all
        that, and they were threatening me that I should
        leave the city of Ahmedabad. So they were telling
        me—they were threatening me to leave that city
        because it was effecting [sic] their business. . . .
6                                             No. 08-3067

    ! Q [Attorney for the Department of Homeland
       Security]: So these incidents didn’t happen to you
       because of your political beliefs, did they—did
       it? A: [Patel] No, the incidents that happened with
       those two people were because of the business
       reasons. . . .
    ! Q [IJ]: Well do you know why these people at-
       tacked you? A: [Patel] It was because of the busi-
       ness, because my business was doing very well
       over there, and their business was not doing,
       was not doing so well.
    ! Q [IJ]: Well why did these two people threaten
       and beat you? A [Patel]: It was, it was because
       of the business reasons. They said my business is
       doing well and theirs is not doing well.
  Furthermore, while Patel’s application alleged that
politics motivated the attacks, Patel admitted during the
hearing that he had limited involvement in politics
after 2002. His involvement was so limited, in fact, that
Patel did not know that his political party had won the
national elections in 2004.
  Patel also failed to offer any evidence that would
support a finding of a likelihood of future persecution.
He claimed at the hearing that his father warned him to
remain in the United States because the attackers were
still looking for him, but Patel admitted that any
future attacks would occur “because of the business.” The
Board’s decision was well supported in all respects, and
we thus deny Patel’s petition for review from its decision
not to grant withholding of removal.
No. 08-3067                                              7

  Patel has also included in his petition to this court a
claim that he qualifies for relief under the Convention
Against Torture. Like his asylum claim, however, he
never requested this relief from either the IJ or the BIA.
He has therefore waived it.
   Finally, Patel argues that this court should remand this
case for a new hearing because Patel received ineffective
assistance of counsel. While we doubt the merit of this
argument, we lack jurisdiction to consider it. Patel
raised this issue before the BIA for the first time in a
motion to reopen. He filed that motion after petitioning
this court for review of his final order of removal. The
BIA denied it on December 24, 2008, and Patel has not
filed a petition for review of that decision. Without a
separate petition, we lack jurisdiction to review this
argument. See Youkhana v. Gonzales, 460 F.3d 927, 933-34
(7th Cir. 2006).
                           ***
  We D ISMISS the petition for review in part and D ENY
the remainder of the petition.




                          9-16-09
