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[U} Kailash Upadhyay v. Eric H. Holder

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT


March 7, 2011

KAILASH UPADHYAY, PETITIONER,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL, RESPONDENT.

Agency No. A099-776-954 On Petition for Review of an Order of the Board of Immigration Appeals

NOT FOR PUBLICATION

MEMORANDUM*fn1

Submitted February 15, 2011*fn2

Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

Kailash Upadhyay, 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 removal, and relief under the Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 998 (9th Cir. 2003), and we deny the petition for review.

Substantial evidence supports the agency's finding that, even if Upadhyay were credible, any presumption of a well-founded fear was rebutted by evidence that he could reasonably relocate within India. See 8 C.F.R. § 1208.13(b)(1)(i)(B); Gonzalez-Hernandez, 336 F.3d at 998-99. Accordingly, Upadhyay's asylum claim fails.

Because Upadhyay failed to establish eligibility for asylum, he necessarily failed to meet the more stringent standard for withholding of removal. See Gonzalez-Hernandez, 336 F.3d at 1001 n.5.

Substantial evidence also supports the agency's denial of CAT protection because Upadhyay failed to demonstrate it is more likely than not he will be tortured if returned to India. See 8 C.F.R. § 1208.16(c)(3); see also Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir. 2006). Upadhyay's contention that the BIA applied the wrong standard to his CAT claim is belied by the record.

PETITION FOR REVIEW DENIED.


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