MEMORANDUM
Petitioner Navneet Vaid, a native and citizen of India, seeks review of a decision of the Board of Immigration Appeals (“BIA”), which affirmed the decision of the Immigration Judge (“IJ”) denying Vaid’s
The BIA “adopted and affirmed” the rulings of the IJ that Vaid’s asylum application was time-barred, and that his testimony was incredible and therefore insufficient to support withholding of removal. The BIA “affirmed” the IJ’s rulings that, even if Vaid’s testimony were credible, changed country conditions rebutted any presumption of a well-founded fear of persecution, and that Vaid had failed to establish eligibility for relief under the Convention Against Torture. All of these rulings by the BIA were accompanied by a citation to Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), indicating that the BIA’s “conclusions are the same as those articulated by the IJ.” Moreno-Morante v. Gonzales,
1. Asylum
We ordinarily lack jurisdiction to review the agency’s determination that Vaid’s application for asylum was untimely and that no extraordinary circumstances excused his untimeliness. 8 U.S.C. § 1158(a)(3). As an exception to this statutory bar, the REAL ID Act restores our jurisdiction to review “constitutional claims or questions of law” upon a petition for review. 8 U.S.C. § 1252(a)(2)(D). “Questions of law” include the “application of statutes and regulations to undisputed historical facts.” Ramadan v. Gonzales,
The IJ concluded that Vaid had failed to establish extraordinary eircumstances because his explanation of why he did not apply for asylum within one year of arrival in the United States was not credible. Therefore, the historical facts in this case are disputed, the IJ’s ruling does not present a question of law, and we are barred by section 1158(a)(3) from reviewing it. But cf. Husyev v. Mukasey, 528 F.3d 1172, 1178-81 (9th Cir.2008) (holding that where the facts are undisputed, this court has jurisdiction to review the agency’s extraordinary facts determination),
Because the one-year deadline applies only to asylum applications, we have jurisdiction under 8 U.S.C. § 1252 to review the agency’s final order denying withhold-fog 0f removal. See Shire v. Ashcroft,
The government may then rebut this presumption by showing that «[t]here has , , . . been a fundamental change in circumstances such that [VaidJ’s life or freedom would not be threatened on account of [his imputed political opinion].” 8 C.F.R. § 1208.16(b)(l)(i)(A). Alternatively, the government may rebut the presumption by showing that Vaid “could avoid a future
The IJ rejected Vaid’s application for withholding of removal primarily on the ground that Vaid’s testimony was not credible. We need not address that ruling, however, because the IJ made an alternative finding that country conditions had changed to a degree that made it unlikely that Vaid would be subjected to persecution if removed to India. We conclude that substantial evidence supports that finding. See Smolniakova v. Gonzales,
The IJ recited that, “[o]ver the years as the separatist movement through militancy was all but extinguished in the state of Punjab, the circumstances there are acknowledged to have normalized and rank and file members of political parties who , , , , . , , operate within the bounds of the law are „ „ acknowledged as no longer in (ear of government arbitrary arrests on political , „ TT , , x, grounds. Thus, the IJ concluded, the ° ,. , ,. , „ . Indian police s continued practice of custo- , . , , , , . ,, dial abuses and torture mentioned m the , , „, r , , , ,, . country report do[es] not seem at this . , , , . ,, ,. i T j-i* pomt to be politically motivated.
applicant.” (internal quotation marks and citation omitted)).
mogt ¿ffficun question is whether ^ change ^ countl.y conditions is satis. faetorily tailored to Vaid’s situation. The insurgency in the Punjab, which gave rise to the government’s repressive counterinsurgency measures, reached its height in the decade from 1984 to 1994. Vaid testified that his arrests and torture occurred in 1995, 1997 and 1999. A question arises, therefore, whether the decline in the Punjab insurgency and the government’s eoun-terinsurgency changed the conditions that prevailed at the time of Vaid’s alleged persecution. Nevertheless, it is clear that Vaid’s testimony related his mistreatment t0 the “militant” activity in the Punjab that existed in the recent past before his arrests. The fact that both the insurgency and counterinsurgency had been wholly dormant in the period of several years since Vaid’s last arrest is a condition that the IJ was entitled to take into account.
We alg0 condude that the u sufficiently reMed the changed condition to Vaid’s . ,. ., , ,. , ,, ,, , , u individual situation and the threat faced by ,. . n , ^ , him, as reqmred by Marcos v. Gonzales,
Vaid’s arrests were clearly part of the government’s reaction to the activities of Sikh militants in the Punjab and, in one case, to a particular bombing. The IJ noted the upsurge in police activity imme
3. Convention Against Torture
The IJ denied relief under the Convention, finding that there was “no basis ... to believe that [Vaid] would be arrested if he went back to India” and that the only risk of torture in India arises from random custodial abuses at the hands of the Indian police seeking “a bribe or to extract a confession.” As we discussed in the previous section, however, substantial evidence supports the IJ’s finding that Vaid is not likely to be arrested if removed to India under current conditions. Accordingly, the evidence does not compel a conclusion that Vaid would more likely than not be tortured if returned to India, See Almaghzar v. Gonzales,
4. Conclusion
We ^ jm.isdiction to review Vaid’s ^ claim q{ eligibmty for limL w . , ,, ,, Tt> j v We do not address the IJ s adverse credi- ... bihty determination because, even if we T7 ., ... assume that the testimony of Vaid and his .„ , ,, . , ,r ., . , .... . . wife was truthful, Vaid is not entitled to „ , .. withholding of removal or relief under the ,. . . , _ , . Convention Agamst Torture. Substantial .. „ ,, TT evidence supports the findings of the I J, , f, m ^ . .. . affn'med by the BIA, that it is not more , ,, likely than not that Vaid s life or freedom , . , , , ,, , , , would be threatened, or that he-would be , , , , , , T tortured, if returned to India under cur- , ’. . rent conditions,
PETITION FOR REVIEW DENIED,
RAWLINSON, Circuit Judge, concurring:
j concur in the result
Notes
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The IJ’s findings of country conditions were based entirely on the 2004 Country Report of the U.S. Department of State, which was released in February 2005.
. The BIA ruled that the evidence of changed country conditions was sufficient to overcome the presumption of “well-founded fear’’ of future persecution required for asylum. This ruling necessarily includes a finding that the government had rebutted the presumption of future persecution for purposes of withholding of removal. See Gonzalez-Hernandez,