Guru v. Lynch , 637 F. App'x 501 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 26, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
RAHUL GURU,
Petitioner,
v. No. 15-9560
(Petition for Review)
LORETTA E. LYNCH, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, LUCERO, and McHUGH, Circuit Judges.
_________________________________
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Rahul Guru is a citizen of India who claims he will be persecuted as a religious
follower of Maharaj Ashutosh if he returns to India. The immigration judge (IJ)
denied his asylum application, his request for withholding of removal, and his request
for relief under the Convention Against Torture. The Board of Immigration Appeals
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(BIA) affirmed the IJ’s ruling, thereby dismissing Mr. Guru’s appeal. Mr. Guru has
now petitioned this court for review of the BIA’s decision. Exercising jurisdiction
under 8 U.S.C. § 1252(a), we deny his petition.
I. BACKGROUND
Mr. Guru unlawfully entered the United States on March 12, 2014, at a border
checkpoint in Nogales, Arizona. On March 13, 2014, Mr. Guru was served with a
Notice to Appear, which charged him as removable under § 212(a)(7)(A)(i)(I) of the
Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(7)(A)(i)(I). Mr. Guru
admitted the allegations in the Notice to Appear and conceded removability.
On June 3, 2014, Mr. Guru applied for asylum, withholding of removal, and
relief under the Convention Against Torture. In this original application, Mr. Guru
claimed to have been harassed and threatened due to his political affiliation with the
Shiv Sena party. After retaining new counsel, Mr. Guru filed a supplemental asylum
application on December 16, 2014, in which he alleged past harm and fear of future
mistreatment because he is a follower of Maharaj Ashutosh, the spiritual leader of the
group Divya Jyoti Jagrati Sansthan (DJJS). More specifically, Mr. Guru alleged he
had been beaten and threatened by the controlling DJJS leaders in the past and feared
future mistreatment, because he had threatened to expose the leaders’ corruption and
had accused them of murdering Ashutosh.
In a hearing held on February 24, 2015, before the IJ, Mr. Guru testified
through an interpreter. The IJ found Mr. Guru credible. Mr. Guru testified that he
follows Maharaj Ashutosh, a spiritual leader who taught, preached, and worked for
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the benefit of the poor, at a place of worship known as a dera in Nurmahal, India. Mr.
Guru further explained he is Hindu, but Ashutosh was not, and DJJS is a
nondenominational group that accepts people of different religions.
In November 2013, Mr. Guru heard a rumor that Ashutosh had been murdered
but the DJJS leaders who managed the dera were hiding Ashutosh’s body. Mr. Guru
testified the DJJS leaders had asserted Ashutosh was “in meditation” so they could
claim he was still alive and take control of his extensive estate. Because Mr. Guru
“accept[s] Ashutosh Maharaj as [his] god, and [he] wanted to find out if something
bad was happening to [Ashutosh],” Mr. Guru went to the dera to confront the DJJS
leaders. According to Mr. Guru, the DJJS leaders responded by threatening to kill
him and telling him to stop spreading rumors that Ashutosh was sick or dead.
Mr. Guru then initiated his own investigation by using a friend to gain access
to the local land ownership records, which showed the DJJS leaders had “properties
worth hundreds of thousands” and “political connections all the way to the top.”
When Mr. Guru returned to the dera and demanded to see Ashutosh, the DJJS leaders
refused. Mr. Guru responded by telling the leaders he had “proof against them”
which he would publish in the newspaper. When Mr. Guru showed the DJJS leaders
the paperwork, they shouted and began chasing him. Mr. Guru ran away and hid in a
field for five to six hours and then returned home.
On December 20, 2013, about ten men arrived at Mr. Guru’s home, two of
whom he recognized from the previous encounter at the dera. Mr. Guru testified the
men entered his home and “started punching and kicking” him for about “two, two
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and a half minutes.” When the men demanded the “proof” Mr. Guru had against
them, Mr. Guru surrendered the documents. Mr. Guru’s neighbors heard his screams
and began to gather. The men then threatened to kill Mr. Guru if he did not stop
following Ashutosh and left Mr. Guru’s house. Mr. Guru testified he did not report
the incident to the police because his father had told him the DJJS leaders were
linked politically to the police.
As a result of the attack, Mr. Guru suffered internal injuries, along with
injuries to his head, feet, hands and legs. Mr. Guru’s neighbors took him to the
hospital where he stayed overnight. After returning from the hospital, Mr. Guru
stayed at home for nine or ten days and then spent about two months “in hiding” in
Delhi before leaving India.
In addition to his testimony, Mr. Guru submitted several documents to the IJ,
including a birth certificate, passport, identity cards, school certificates, two letters
from his father stating Mr. Guru was sent abroad based on fear for his life, a medical
report confirming Mr. Guru was hospitalized after the attack at his home but released
the next day, and a letter from a Shiv Sena leader confirming his membership in the
party. Mr. Guru also submitted various articles discussing Ashutosh and his
followers. In relevant part, the articles explain that, after Mr. Guru left India in 2013,
litigation was filed to require the release and cremation of Ashutosh’s body, and an
Indian court ordered the cremation.
After the hearing, the IJ issued an oral decision and order, accepting
Mr. Guru’s testimony as credible but nonetheless finding Mr. Guru failed to meet his
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burden to establish eligibility for asylum, withholding of removal, or protection
under the Convention Against Torture. The IJ first rejected Mr. Guru’s application to
the extent it was based on his membership in the Shiv Sena political party because
Mr. Guru indicated he was never harmed as a result of his political affiliation. The IJ
also concluded Mr. Guru failed to establish he was targeted as a result of his religion.
Rather, the IJ found Mr. Guru was harmed due to a private dispute caused by his
investigation of and confrontation with the DJJS leaders. The IJ therefore denied
Mr. Guru’s application.
Mr. Guru timely appealed the IJ’s decision to the BIA. On July 29, 2015, in a
single-member decision, the BIA dismissed Mr. Guru’s appeal. Because Mr. Guru
“ha[d] not shown that the mistreatment he suffered in India constitutes persecution
under the [INA],” the BIA rejected Mr. Guru’s claims based on religion and
membership in a particular social group. The BIA also rejected Mr. Guru’s assertion
of a well-founded fear of persecution. And since Mr. Guru failed to satisfy the lower
standard required for asylum, the BIA also denied Mr. Guru’s request for withholding
of removal. Finally, the BIA declined to grant protection under the Convention
Against Torture because the evidence did not demonstrate Mr. Guru would more
likely than not be tortured if he returned to India.
Mr. Guru timely petitioned this court for review of the BIA’s order.
II. DISCUSSION
Where, as here, a single member of the BIA issues a brief order affirming the
IJ’s decision, we review the BIA’s order as the final agency determination and limit
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our review to the grounds specifically relied upon by the BIA. Uanreroro v.
Gonzales, 443 F.3d 1197, 1203–04 (10th Cir. 2006). “However, when seeking to
understand the grounds provided by the BIA, we are not precluded from consulting
the IJ’s more complete explanation of those same grounds.” Id. at 1204. We review
the BIA’s legal conclusions de novo and its factual determinations for substantial
evidence. Id.; Razkane v. Holder, 562 F.3d 1283, 1287 (10th Cir. 2009).
Here, Mr. Guru challenges the BIA’s determination that he did not establish
persecution as required to support his asylum application. “In this circuit, the ultimate
determination whether an alien has demonstrated persecution is a question of fact, even if
the underlying factual circumstances are not in dispute and the only issue is whether
those circumstances qualify as persecution.” Hayrapetyan v. Mukasey, 534 F.3d 1330,
1335 (10th Cir. 2008) (internal quotation marks omitted). “The BIA’s determination [on
the issue of persecution] must be upheld if it is ‘supported by reasonable, substantial, and
probative evidence on the record considered as a whole.’” Id. (quoting INS v. Elias–
Zacarias, 502 U.S. 478, 481 (1992)). “Thus, we may reverse the BIA’s decision ‘only if
the evidence presented by [Mr. Guru] was such that a reasonable factfinder would have to
conclude that the requisite fear of persecution existed.’” Id. (quoting Elias–Zacarias, 502
U.S. at 481).
A. Application for Asylum
Turning first to Mr. Guru’s application for asylum, Mr. Guru bore the burden
of proving eligibility for asylum. 8 U.S.C. § 1158(b)(1)(B)(i). To qualify for asylum,
Mr. Guru must first prove he is a refugee, which requires proof he is “unable or
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unwilling to return to” India “because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); Chaib v. Ashcroft, 397
F.3d 1273, 1277 (10th Cir. 2005).
Mr. Guru based his asylum application on alleged persecution resulting from
his religion and membership in a particular social group. For both of these categories,
Mr. Guru was first required to prove he had suffered persecution. “Persecution is the
infliction of suffering or harm upon those who differ (in race, religion, or political
opinion) in a way regarded as offensive and must entail more than just restrictions or
threats to life and liberty.” Ritonga v. Holder, 633 F.3d 971, 975 (10th Cir. 2011)
(internal quotation marks omitted). There are three types of persecution that satisfy
the statutory requirement: (1) “a well-founded fear of future persecution,” (2) “past
persecution sufficient to give rise to a presumption of future persecution,” or
(3) “past persecution so severe that it supports an unwillingness on the applicant’s
part to return to that country.” Chaib, 397 F.3d at 1277. The BIA concluded Guru had
not experienced past persecution and did not have a well-founded fear of future
persecution. After reviewing the record in this case, we find substantial evidence
supporting the BIA’s conclusions.
1. Past Persecution
To be eligible for asylum based on past persecution, “an applicant must show
(1) an incident, or incidents, that rise to the level of persecution; (2) that is on
account of one of the statutorily-protected grounds; and (3) is committed by the
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government or forces the government is either unable or unwilling to control.” Niang
v. Gonzales, 422 F.3d 1187, 1194–95 (10th Cir. 2005).
Here, Mr. Guru testified he was threatened twice after confronting a group of
DJJS leaders. Because he threatened to expose the leaders’ alleged corruption, Mr.
Guru was beaten on one occasion for “[m]aybe two, two and a half minutes.” And as
a result of the beating, Mr. Guru suffered injuries that required overnight
hospitalization. Even accepting Mr. Guru’s testimony as credible, the BIA concluded
Mr. Guru’s experience did not rise to the level of persecution.
The BIA’s decision is consistent with similar determinations upheld by this
court despite evidence of circumstances similar to or more severe than those alleged
by Mr. Guru. See, e.g., Ritonga, 633 F.3d at 976 (affirming BIA’s finding of no
persecution where Christian was the target of taunts and threats on several occasions
and suffered head injuries when Muslims broke into her home); Sidabutar v.
Gonzales, 503 F.3d 1116, 1124 (10th Cir. 2007) (affirming BIA’s finding of no
persecution where Christian was repeatedly beaten and robbed at the hands of
Muslim classmates); Kapcia v. INS, 944 F.2d 702, 704–05, 708 (10th Cir. 1991)
(affirming BIA’s finding of no persecution where petitioner was detained twice for
two-day periods during which he was interrogated and beaten based on his political
affiliation, was assigned poor work tasks and denied bonuses, was conscripted into
the army where he experienced constant harassment, and was fired from his job). As
such, we conclude the BIA’s finding was supported by substantial evidence.
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2. Well-Founded Fear of Future Persecution
Having failed to prove past persecution, Mr. Guru could still qualify as a
refugee under the INA if he established a well-founded fear of future persecution,
which requires “both a genuine, subjective fear of persecution, and an objective basis
by credible, direct, and specific evidence in the record, of facts that would support a
reasonable fear of persecution.” Karki v. Holder, 715 F.3d 792, 801 (10th Cir. 2013).
The BIA determined Mr. Guru failed to meet this standard for several reasons.
The BIA first noted that the relevant events supporting Mr. Guru’s asylum
application took place in 2013, and Mr. Guru left India shortly thereafter. Mr. Guru
submitted articles which confirm that, after his departure from the country, litigation
was commenced to allow the release and cremation of Ashutosh’s body, and that an
Indian court ordered the cremation. The BIA thus concluded that Mr. Guru failed to
establish that the Indian government is unable or unwilling to control the DJJS
leaders. In addition, the BIA noted that some of Mr. Guru’s family members, who are
also followers of Ashutosh, remain in Indian unharmed and that he has not provided
any evidence demonstrating the DJJS leaders are interested in harming him today.
The BIA’s finding that Mr. Guru does not suffer from a well-founded fear of
persecution is supported by substantial evidence in the record.
B. Withholding of Removal
Mr. Guru also argues the BIA erred in denying his request for withholding of
removal. Under the INA, the Attorney General may prohibit removal if she determines
“the alien’s life or freedom would be threatened” in the country to which he would be
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removed “because of the alien’s race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). “The burden of proof for
withholding of removal is higher than for asylum.” Rodas-Orellana v. Holder, 780 F.3d
982, 986 (10th Cir. 2015). Under this burden, the applicant must prove a “clear
probability of persecution on account of a protected ground.” Id. at 987 (internal
quotation marks omitted). “Failure to meet the burden of proof for an asylum claim
necessarily forecloses meeting the burden for a withholding claim.” Id. Having failed to
establish eligibility for asylum, Mr. Guru has also necessarily failed to satisfy his burden
of proof for withholding of removal. We therefore affirm the BIA’s denial of Mr. Guru’s
request for withholding of removal.
C. Convention Against Torture
Mr. Guru has likewise failed to prove his eligibility for relief under the
Convention Against Torture. Under the Convention, Mr. Guru had the burden to
prove “it is more likely than not that he . . . would be tortured if removed to the
proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). The Convention defines
torture as
any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from
him or her or a third person information or a confession, punishing him
or her for an act he or she or a third person has committed or is
suspected of having committed, or intimidating or coercing him or her
or a third person, or for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person
acting in an official capacity.
Id. § 1208.18(a)(1) (emphasis added).
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In this case, Mr. Guru has not identified a public official involved with his past
mistreatment. The DJJS followers who threatened and beat Mr. Guru were religious
leaders, not public officials. Although these men allegedly had political connections and
Mr. Guru’s father believed they had political ties with the police, Mr. Guru did not
present evidence showing any public official ratified or knew about the DJJS leaders’
actions. Thus, Mr. Guru failed to prove he had been or would in the future be mistreated
at the instigation of or with the consent or acquiescence of a public official. Accordingly,
we uphold the BIA’s denial of Mr. Guru’s request for protection under the Convention.
III. CONCLUSION
For these reasons, we DENY Mr. Guru’s petition for review of the BIA order.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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