Dutt v. Holder

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 7, 2010
• Docket: 07-73924
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 07 2010

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

RAJESH VIKRAM DUTT, No. 07-73924

Petitioner, Agency No. A098-532-915

v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General,

Respondent.

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

** Submitted June 29, 2010

Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.

Rajesh Vikram Dutt, a native and citizen of India, petitions for review of the

Board of Immigration Appeals (“BIA”) order dismissing his appeal from an

immigration judge's decision denying his application for asylum, withholding of

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

** The panel unanimously concludes that this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). removal, and protection under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992), and we deny the petition for review.

The BIA denied Dutt’s asylum application claim as time-barred. Dutt does

not challenge this finding in his opening brief. See Aguilar-Ramos v. Holder, 594

F.3d 701, 703 n.1 (9th Cir. 2010) (where applicant did not contest a finding of

untimeliness, issue is waived).

Substantial evidence supports the BIA’s finding that even if Dutt established

past persecution, the government established by a preponderance of evidence that

Dutt could reasonably relocate within India, particularly given that his wife and

children are safely residing in Haryana, India. See Melkonian v. Ashcroft, 320 F.3d

1061, 1069-70 (9th Cir. 2003) (the presumption of a country-wide threat of

persecution can be rebutted by showing that under all the circumstances the

applicant could reasonably be expected to relocate). Accordingly, Dutt’s claim for

withholding of removal fails.

Substantial evidence also supports the agency’s denial of CAT relief because

Dutt failed to demonstrate it was more likely than not he will be tortured if

returned to India. See Hasan v. Ashcroft, 380 F.3d 1114, 1122-23 (9th Cir. 2004)

(denying CAT relief based on the possibility of internal relocation).

PETITION FOR REVIEW DENIED.