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Click here for the full text of this decision FACTS:David Roy, an Indian national, was admitted to the United States as a 23-year-old in 1999. He was admitted as a nonimmigrant with authorization to remain for a temporary period until Nov. 22, 1999. When he did not leave, the Immigration and Naturalization Services (as it was then called) issued a notice to Roy that he was subject to removal for having overstayed his visa. Roy admitted that he had done so, and the immigration judge (IJ) found Roy’s removability conclusively proved. Roy filed an application for asylum two months later on Oct. 6, 2000, as did his parents. Roy testified that when he was still in high school in India, he was beaten by Hindu and Sikh boys for being a Christian. The IJ denied all of their applications. The Board of Immigration Appeals reversed the IJ on the father’s asylum application and the mother’s derivative application, but the BIA again denied Roy’s application, in part because it was untimely, but in part on the merits. The BIA also denied Roy’s application for withholding removal and relief under the Convention Against Torture (CAT), but granted his application to depart voluntarily. Roy filed a timely petition for review in this court. The same day, Roy asked the BIA to reissue is opinion and a motion to reopen/consider the case because the BIA had sent its opinion to the wrong attorney. The delay, Roy said, caused his failure to meet the requirements for voluntary departure on time. Acknowledging the incorrect mailing, the BIA reissued its opinion twice, stating that it would “treat it as if it had been entered on today’s date.” The BIA declined to reconsider the merits of its timeliness decision. Roy did not file a new petition for review of either of the reissued decisions. HOLDING:Petition denied. As an initial matter, the government argues that this court does not have jurisdiction to consider Roy’s petition for review because the BIA reissued its decision and Roy did not file a new petition for review of either of the reissued decisions. Roy contends that this court has proper jurisdiction because he filed a timely petition for review of the BIA’s original decision and the reissuances did not divest this court of jurisdiction. This court says it has not previously considered this jurisdictional question. The BIA did not enter a new removal order but only reissued its prior removal order for the equitable purpose of allowing Roy to timely comply with the requirements of voluntary departure. Therefore, this court was not divested of jurisdiction over Roy’s timely filed petition for review of the BIA’s original removal order when the BIA chose to reissue its decision for the equitable purpose of allowing Roy to timely comply with the requirements for voluntary departure. The court finds that it cannot review Roy’s claim that his hearing was fundamentally unfair. It is essentially a procedural error, subject to the exhaustion requirement, and Roy did not exhaust this issue. The court then looks to the evidence to support the BIA’s refusal to grant Roy’s withholding of removal and his CAT claims. Roy contends that when the BIA granted his father’s asylum application, it implicitly held that his father had a well-founded fear of persecution for his religious beliefs; Roy, too, will be subject to the same persecution, he continues. Unlike his father, who cited several instances of beatings, threats and incidents directly related to his involvement in the Christian church, Roy did not show himself to be present at any of the incidents. The one incident in high school did not show any particular connection to his being Christian except for Roy’s claim that that was the motivation. He offered no other details of harm he suffered. “A finding by the BIA that Roy’s father had met the lower threshold of past persecution or a well-founded fear of persecution to be eligible for asylum did not indicate or imply that his son Roy could then meet the more stringent level of proof required for withholding. . . . Roy has not shown the evidence is so compelling that no reasonable fact finder could fail to find Roy eligible for withholding.” As for his CAT claim, the court again finds no evidence that Roy would more likely than not be subject to any torture by the police if he returned to India. OPINION:Per curiam; DeMoss, Dennis and Clement, JJ.

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