Farhadul Mannan CHOWDHURY, Petitioner, v. Eric H. HOLDER Jr., United States Attorney General, Respondent, 365 F. App'x 302

SUMMARY ORDER Farhadul Mannan Chowdhury, a native and citizen of Bangladesh, seeks review of a May 6, 2008 order of the BIA affirming the October 19, 2005 decision of Immigration Judge (“IJ”) Paul A. Defonzo, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Farhadul Mannan Chowdhury, No. [ AXX XXX XXX ] (B.I.A. May 6, 2008), ajfg No. [ AXX XXX XXX ] (Immig. Ct. N.Y. City Oct. 19, 2005). We assume the parties’ familiarity with the underlying facts and procedural history of this case.

When the BIA affirms and supplements the IJ’s decision but does not adopt the IJ’s adverse credibility determination, we review the IJ’s decision as modified by the BIA decision. Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). Here, because the BIA did not adopt the IJ’s adverse credibility finding, but explicitly stated that it was reviewing the claim on the assumption that petitioner’s testimony was credible, we assume the credibility of that testimony. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005).

We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). I.

Asylum As an initial matter, we do not have jurisdiction to review the IJ’s determination that Chowdhury failed to establish “extraordinary circumstances” excusing his failure to file his asylum application within the one-year deadline. 8 U.S.C. § 1158(a)(3); see also 8 C.F.R. § 208.4(a)(5) (“extraordinary circumstances” refers to “events or factors directly related to the failure to meet the 1-year deadline”). Chowdhury argues that the IJ failed to consider his argument that he did not apply for asylum because he thought he could gain residency through employment.

However, this argument amounts to nothing more than a challenge to the IJ’s fact-finding with respect to the one-year bar, which this Court does not have jurisdiction to review. See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 330-32 (2d Cir.2006). Accordingly, to the extent Chowdhury challenges the pretermission of his untimely asylum application, we dismiss the petition for review. II. Withholding of Removal We also find that the BIA properly denied Chowdhury’s application for withholding of removal, which is not subject to the one-year bar.

With regard to Chow-dhury’s testimony that he was threatened, harassed, verbally abused, and manhandled by his former girlfriend’s uncle, a major in the Bangladeshi army, the BIA properly found that he failed to provide sufficient evidence that he suffered this abuse on account of a protected ground. See 8 U.S.C. § 1101(a)(42). By Chowdhu-ry’s own admission, the main goal of his girlfriend’s uncle was to break up their relationship. While Chowdhury believed that the reason was his “religious independence,” this is insufficient to bring the uncle’s harassment within the ambit of refugee protection. Cf. Rizal v.

Gonzales, 442 F.3d 84, 90 (2d Cir.2006) (“The critical showing that an applicant must make ... is that he has suffered past persecution, or fears future persecution, on the basis of religion.”). Accordingly, the BIA’s nexus finding was supported by substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); see also Manzur, 494 F.3d at 289. This finding is dispositive of Chowdhury’s claimed fear of future persecution by his former girlfriend’s uncle.

In 1982, while Chowdhury was in college and a member of the Bangladesh National Party (BNP), he was physically removed from a rickshaw by student members of a rival political party, held at their “compound” for at least a day, and beaten. The BIA found without further explanation that “this incident alone does not rise to the level of persecution.” It is well established that beatings and torture can constitute persecution, particularly when they occur in the context of a detention. See, e.g., Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir.2006); Yan Chen, 417 F.3d at 272, 275.

The BIA did not explain why the beatings of Chowdhury occurring in the context of a detention by members of the rival party did not constitute past persecution. See Beskovic, 467 F.3d at 227 (“Whether or not [petitioner] is entitled to a presumption of future persecution requires a determination, based on the correct legal standard, of whether he suffered past persecution. Because we cannot determine whether the IJ correctly assessed [petitioner’s] claim of past persecution, we are stymied.”).

However, even if the BIA’s explanation was insufficient, there is no evidence in the record that the government failed to prevent the actions of the student members of the rival political party. See Pavlova v. INS, 441 F.3d 82, 91 (2d Cir.2006) (“[W]e have never held that direct governmental action is required to make out a claim of persecution. On the contrary, it is well established that private acts may be persecution if the government has proved unwilling to control such action.”) (internal quotation marks omitted).

Because Chow-dhury has not presented evidence that the government was “unwilling to control such actions,” id., he cannot establish persecution based on this record. Remand is therefore futile. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 401 (2d Cir.2005). III. CAT Relief Finally, we find that the BIA’s denial of CAT relief is supported by substantial evidence. Chowdhury bases his CAT claim on the same evidence of his withholding of removal claim, and he fails to indicate anything in the record that would a compel a conclusion contrary that he would more likely than not be tortured.

See 8 U.S.C. § 1252(b)(4)(B); see also Manzur, 494 F.3d at 289. For the foregoing reasons, the petition for review is DISMISSED in part and DENIED in part. Any pending motion for a stay of removal in this petition is DISMISSED as moot.