Suresh M. VYAS, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent, 136 F. App'x 969

MEMORANDUM Suresh M. Vyas, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”)

summary affirmance of the immigration judge’s (“IJ”) denial of his application for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review. Even assuming that Vyas was credible, substantial evidence supports the IJ’s decision that Vyas failed to demonstrate that the Indian government is unwilling or unable to protect him from religious persecution by a Muslim gang, where the Indian police arrested and killed the gang leader. Cf. Mashiri v.

Ashcroft, 383 F.3d 1112, 1119 (9th Cir.2004) (concluding that the petitioner demonstrated that the government was unable or unwilling to control the persecution where no action was taken by government to investigate anti-foreigner crime and country report indicated that police mistreated foreigners). Accordingly, we deny the petition for review on the asylum claim. Because Vyas failed to demonstrate eligibility for asylum, he also fails to meet the higher burden under withholding of removal. See Chanco v. INS, 82 F.3d 298, 303 (9th Cir.1996).

This court will not address Vyas’s eligibility under CAT because Vyas failed to exhaust his CAT claim before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004). PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.