Opinion
21-931
10-03-2022
RAMANVEER SIGH BAINS, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted September 23, 2022 San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A059-644-596
Before: GRABER, FRIEDLAND, and MILLER, Circuit Judges.
MEMORANDUM [*]
Petitioner Ramanveer Singh Bains, a native and citizen of India, seeks review of the Board of Immigration Appeals' ("BIA") dismissal of his appeal from an immigration judge's ("IJ") denial of relief under the Convention Against Torture ("CAT"). We review for substantial evidence a denial of CAT relief when the agency determines that the petitioner failed to demonstrate that he is more likely than not to face torture if removed. Benedicto v. Garland, 12 F.4th 1049, 1063 (9th Cir. 2021). Where, as here, the BIA adopts the IJ's decision by citing Matter of Burbano, 20 I. &N. Dec. 872 (B.I.A. 1994), and provides its own review of the evidence and law, we review both the IJ's and the BIA's decisions. Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022). We deny the petition.
1. The BIA erred in adopting the IJ's conclusion that Petitioner could rely on the support of either his extended family or his wife's family to obtain housing in India. It is speculative to conclude that, despite express testimony that Petitioner's family would not be able to provide support, Petitioner would be able to obtain assistance because he stayed with family in India almost 10 years ago. See Shah v. INS, 220 F.3d 1062, 1071 (9th Cir. 2000) (declining to uphold a finding of the BIA discrediting evidence because that finding "rest[ed] on conjecture and speculation"). But the IJ permissibly concluded, and the BIA permissibly adopted the conclusion, that "becoming homeless in India, while tragic, would not amount to torture as . . . defined in the regulations." The IJ also conducted a thorough review of the record, including the country conditions, and permissibly concluded that Petitioner failed to establish that it was more likely than not that a chain of events would occur by which Petitioner would be unable to obtain medications or mental health treatment, that he would be institutionalized or arrested, and that his treatment in such institution or government facility would constitute torture. The record does not compel a contrary conclusion. See Xiao Fei Zheng v. Holder, 644 F.3d 829, 835 (9th Cir. 2011) ("In order for this court to reverse the BIA with respect to a finding of fact, the evidence must compel a different conclusion from the one reached by the BIA.").
2. The IJ also permissibly concluded that Petitioner failed to establish that he was more likely than not to be tortured in India because he is bisexual. Id. Petitioner does not argue that the IJ and BIA failed to consider his risk of torture from all sources in the aggregate. See Velasquez-Samayoa v. Garland, 38 F.4th 734, 739 (9th Cir. 2022) (discussing the need to aggregate risks from separate sources in evaluating a CAT claim). Accordingly, any such challenge is forfeited. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013).
3. Petitioner's reliance on Guerra v. Barr, 974 F.3d 909 (9th Cir. 2020), is unavailing. In Guerra we ruled only that the BIA had applied an incorrect legal standard when reviewing the IJ's conclusion that the petitioner was likely to face torture if deported to Mexico. Id. at 916. Here, the BIA appropriately reviewed for clear error the IJ's factual findings in support of its determination that Petitioner had failed to demonstrate that he is more likely than not to be tortured if returned to India.
4. The agency did not misapply the specific intent requirement for torture under CAT. We have repeatedly held that "inhumane conditions and lack of access to appropriate medical care do not, in and of themselves, constitute torture" and that the torture must be a result of an actor who "intend[s] the actual consequences of his conduct." Cole v. Holder, 659 F.3d 762, 773 (9th Cir. 2011) (first citing Villegas v. Mukasey, 523 F.3d 984, 989 (9th Cir. 2008) and Eneh v. Holder, 601 F.3d 943, 948 (9th Cir. 2010); and then quoting Villegas, 523 F.3d at 989). Contrary to Petitioner's assertion, nothing in the decisions of the IJ or the BIA indicates that either of them used a more stringent definition of specific intent than is described by our caselaw.
The motion for a stay of removal (Dkt. Nos. 12 &21) is denied. The temporary stay of removal is lifted.
PETITION DENIED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).