Ben Longchar v. U.S. Attorney General , 179 F. App'x 665 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 8, 2006
No. 05-15557 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A97-203-819
and A97-203-820
BEN LONGCHAR,
IMDONGYBANG MEXISENLA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 8, 2006)
Before CARNES, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Ben Longchar and his spouse, Imdongybang Mexisenla, Indian nationals,
petition for review of the Board of Immigration Appeals’ decision affirming an
Immigration Judge’s order of removal and denial of their asylum and withholding
of removal claims, as well as relief under the United Nations Convention Against
Torture. On appeal, they argue that substantial evidence proved that they suffered
past persecution and had a well-founded fear of future persecution based on their
Christian religion. For the reasons set forth more fully below, we deny the
petition.
Longchar, the lead petitioner, entered the United States on September 4,
1995, as a non-immigrant student to attend the “S.E. Theological Seminary” in
Wake Forest, North Carolina. Mexisenla, the derivative petitioner, entered the
United States on or about January 22, 1996, as a non-immigrant with F-2 status to
remain in the United States for a temporary period not to exceed December 1,
2002. It appears that Longchar, including his spouse, Mexisenla, filed an
application for asylum and withholding of removal signed May 21, 2003, alleging
persecution on account of their religion and political opinion.1 On July 8, 2003,
1
It is noted that Longchar also filed for cancellation of removal, as he had been in the
United States for more than 10 years, and the claim was denied after the removal hearing.
Longchar does not appeal the denial of his cancellation claim, and, therefore, the facts
supporting that claim are not discussed in this opinion because the claim is deemed abandoned
on appeal. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1231, 1232 n.2 (11th Cir. 2005). We further
note that Longchar does not offer any argument regarding the denial of CAT relief, and that
claim is also deemed abandoned. Id.2
both petitioners were served with notices to appear. Longchar was charged with
failing to maintain or comply with the conditions of his non-immigrant status,
specifically failing to continue to attend the Theological Seminary, in violation of
INA § 237(a)(1)(C), 8 U.S.C. § 1227(a)(1)(C). Mexisenla was charged with
remaining in the United States for a longer time than permitted, a violation of INA
§ 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). The petitioners admitted to the
allegations in their notices to appear and conceded removability.
In his application, Longchar (used herein to refer to both petitioners) stated
that he was a Christian Missionary Pastor, and that the government of India
supported members of the Hindu faith that persecute Christians like himself. He
feared that, if returned to India, he would be kidnaped and arrested and his wife
would be raped by the government and religious sects because of his past, current,
and future spiritual beliefs. In support, Longchar stated that he personally had
been beaten, abused, and attacked in India, and that his brother-in-law and uncle
had as well. He further stated that he was a member of the Community
Democracies movement and continued to assist Christians in India by sending
leaflets and literature.
Longchar included a personal statement indicating that, on August 6, 1986,
while he was in college, four men who he believed were hired hands entered his
3
apartment, said they were there to “settle a matter,” and beat him until he laid
motionless. One of the men said, “He’s dead, let’s go.” Longchar believed that the
men attacked him because he had befriended two Hindu classmates who went to
church with him, although they were not converted, as well as his relationship with
another Hindu who was converted to Christianity after Longchar invited the friend
to attend a Christian youth camp. In 1997, Longchar’s brother-in-law, also a
Christian, was kidnaped and attacked by “gangsters,” but escaped after his captors
discovered that he was carrying a large sum of money. In 1998, another brother-
in-law had his home ransacked by Indian soldiers during a prayer meeting, and
after Christian literature was discovered, three members of the prayer group were
taken away, beaten, and tortured.
Among the various exhibits submitted was the 2003 State Department
Report on Human Rights Practices for India. India was described as a
parliamentary democracy led by the “BJP” party, and, while the 28 individual state
governments had primary responsibility for law and order, the central government
provided guidance and support through the use of paramilitary groups. While
human rights were generally respected, the report noted problems with religiously
motivated violence against Muslims and Christians.
In the “Freedom of Religion” section, the report noted that, although “the
4
law provides for religious freedom, enforcement of the law was poor, particularly
at the state and local levels.” The report further noted that the ruling party, the
BJP, had links to extremist Hindu groups that were implicated in violent acts
against Christians and Muslims, although there was no evidence that the
government itself was complicit in the violence. Tensions between Muslims and
Hindus and Hindus and Christians continued throughout the year, although attacks
on religious minorities decreased overall. The government was, however,
criticized for its failure to restrain Hindu extremists. Notwithstanding the Hindu
nationalists, Christian leaders reported a decrease in violent incidents, and the
report further noted that where Christians comprised a majority, Christians were
sometimes the oppressors.
Next, Longchar submitted a 2004 report by the United States Commission
on International Religious Freedom. It listed India among the 11 countries
recommended for placement on the list of “Countries of Particular Concern” for
“the systematic, ongoing, and egregious violations of religious freedom that the
governments are responsible for or have tolerated.” The report noted that violence,
including fatal attacks, against Muslims and Christians continued, and several
members of the central government were known to have allied themselves with
extremist Hindu groups. Three members of the Commission, however, dissented
5
from designating India as a “Country of Particular Concern,” finding that India had
the legal and democratic traditions to deal with religious intolerance, and, in fact,
significant steps had been taken to correct insufficient actions taken against
religious extremists who used violence against minority religions.
Also included was the State Department’s 2003 International Religious
Freedom Report. It reported that, while there was a decrease in the number of
incidents of Hindu-Christian violence, the passage of “anti-conversion” laws
increased the likelihood of religious intolerance. It noted that the central
government is led by a coalition that has pledged to respect India’s traditions of
secular government and religious tolerance, but that the leading party was the BJP,
a Hindu nationalist party with links to extremist groups. Out of a population of
roughly 1 billion people, Christians comprise 2.3 percent, or 23 million people,
concentrated in six states, including Nagaland. The central government generally
respected the right to religious freedom, although it was noted that state and local
governments only partially respected that freedom. Most attacks against Christian
groups were perpetrated by Hindu extremist groups or mobs. The report also
indicated that two Indian states (not Nagaland) had passed “anti-conversion” laws
that criminalized alluring people to convert religions. However, in northern India,
only a few isolated incidents involving attacks on religious minorities were
6
reported.
Moreover, the report stated that there was no national law barring a citizen
or foreigner from professing or propagating his or her religious beliefs, although
actual preaching required permission. The central government was not implicated
in any abuse of religion, although it was criticized by human rights activists for
“indifference and inaction” in the face of state and local abuses. The report
concludes, however, that “[d]espite the incidents of violence and discrimination
during the period covered by this report, relations between various religious groups
generally are amicable among the substantial majority of citizens. There are efforts
at ecumenical understanding that bring religious leaders together to defuse
religious tensions.” Longchar submitted numerous articles, as well as an e-mail,
discussing local detentions of Christian priests, general, non-religious tensions, and
the actions of extremist Hindu groups.
Also included in the record was a June 1996 Bureau of Democracy, Human
Rights and Labor report on India’s country conditions and asylum claims. The
report states, in relevant part, that Christians occasionally encounter prejudice and
harassment as a minority religion. However, while an occasional church is
destroyed, “Christians are generally able to live and worship without serious
difficulty. The Government makes no effort to infringe on the rights of Christians,
7
and only fanatical Hindus or Muslims are concerned about Christian activities.”
The report further notes that proselytizing is illegal. The report concludes that
“Indians of Christian faith are not generally in a position to show that they have
suffered abuse in India and that this abuse would occur wherever they might live in
that country.”
At the removal hearing, Longchar testified that he was born and lived in
Nagaland, India, located in the Northeast of the country near China. According to
Longchar, Nagaland became part of India in 1963, and, as a region, maintains a
population of 4 million, and has only two “major” cities with electricity and
running water. Longchar lived in Moguptun, which would be considered one of
the bigger cities. He came to the United States on January 18, 1990,2 and obtained
a Masters degree in Divinity. Longchar continued his education at a Theological
Seminary, but it ended when he failed to complete his thesis by its deadline and
was denied an extension.
After the extension was denied, Longchar filed for asylum, fearing that he
and his family would be persecuted because of his involvement as a Christian.
Longchar testified that, on August 6, 1986, four people entered his apartment and
2
This date is different than the one listed in his notice to appear, but this is a moot point
since no one disputes that he was removable as charged. In fact, Longchar first arrived in the
United States in 1990, but made two trips to India, and last entered the United States on
September 4, 1995, the date listed on the notice to appear.
8
beat him up, and his “only crime” was that he had been active in reaching out to
Hindus. Longchar did not know the names of his attackers, but did recognize one
of the faces. The attackers, upon entering Longchar’s apartment, explained that
they had a “matter to settle” and then began beating him, hitting him with their
hands and kicking him until two of the men declared that Longchar was dead.
Longchar received minor injuries and was treated at a local hospital.
Longchar reported the incident, but testified that “nothing happened.” When
further questioned, Longchar admitted that the police may have investigated the
incident, but that no arrests were ever made. Longchar then testified that his
involvement in Christian activities is what prompted the attack, and further stated
that Christians have always been persecuted, including at the hands of the
authorities. When asked how he knew that the attackers were Hindu, Longchar
testified that he was sure of only one thing: that they were not Christians and were
hired by the Hindus. He also said that the attackers spoke Hindu and “Nogamese.”
However, the only thing Longchar thought could have prompted the incident was
his involvement. Other than saying they had a “matter to settle,” the attackers did
not indicate why they were there. Nothing else happened to him during the four
years he remained in India.
As for his fear of returning to India, Longchar testified that he had been
9
involved in sending Christian books and other literature to India and feared that his
work in actively promoting Christianity would make him a target for persecution.
Longchar testified that he knew others who had been persecuted for their Christian
beliefs, including his youngest brother-in-law, who was holding a prayer meeting
one day when the Indian army ransacked his home and found Christian literature
that Longchar had sent. They then spotted a pocket knife and accused the people
there, not of being Christians, but of participating in the “freedom movement of
Nogas” and standing against the Indian government. They were then tortured and
beaten for being freedom fighters of Nagaland. As for the Indian army’s
involvement, Longchar testified that they were sent to battle the freedom
movement, but that was a pretext for persecuting Christians.
Longchar also testified that his uncle, who was a church deacon, returned
home one night and was confronted by a group of soldiers who just beat him up,
and several months later, he died. According to Longchar, the soldiers came for
his uncle because his uncle was active in the church, and Longchar had been
sending Christian literature to his uncle. The literature was used to help teach
Hindus what Christianity was “all about.” Longchar’s relatives informed him that
the Indian army knew that Longchar was the source of the Christian resources, and
that he should be careful. When asked how the Indian army would know him as
10
the source, Longchar stated that his address was on the boxes, and the boxes were
found in his uncle’s home. If returned to Nagaland, Longchar believed that he
might be arrested, persecuted, or tortured, and his wife might be raped or ill-treated
because of his involvement in the Christian activities and for exposing the
“wickedness . . . , human rights violations, and religious rights violations.”
The IJ then asked if Longchar could go somewhere in India other than
Nagaland, and Longchar testified that he would be even less safe outside of
Nagaland because if he was not safe in his own home, he would “not be safe
anywhere else in India.” He testified that Christians were persecuted everywhere
in India, and that the police themselves were involved in persecuting minorities.
Longchar further explained that the current government of India, the “B.J.P.,” was
supported by extremist Hindus, and it wanted to make Hinduism the state religion
of India.
On cross-examination, Longchar indicated that Nagaland has a very high
percentage of Christians. He further admitted that the conflict between religions
was worse in the rural areas than in the big cities, and that large populations of
Christians exist in both the Northeastern States and in the South of India.
The IJ rendered an oral decision, first finding that Longchar’s asylum
application, while filed more than one year after entering the United States, was
11
not time-barred. The IJ next found that the 1986 attack described by Longchar did
not constitute past persecution on the basis of his religion. The IJ found that
Longchar’s testimony failed to provide an objective basis from which to conclude
that the attack was motivated because of Longchar’s Christianity and Christianity-
based activities. This finding was bolstered by the fact that Longchar was never
again confronted by anyone prior to leaving India in 1990, suggesting that, if the
motivations of his attackers truly had been related to Longchar’s Christianity, he
should have faced similar problems over the four-year period preceding his move
to the United States.
As to a well-founded fear of future persecution, the IJ found that, while
Longchar sent Christian literature to his uncle and the government seized this
literature, there was nothing in the record demonstrating that the government of
India would logically conclude that Longchar was complicit in the distribution of
these materials to non-Christians. Even if the Indian government made the
connection, however, the IJ found that there was not a sufficient basis for
concluding that the government would have an interest in taking action against
Longchar given that five years had elapsed and Longchar’s uncle was deceased,
preventing any further literature from being distributed. Looking at the various
country reports, the IJ found that the principle violence in India was between
12
Hindus and Muslims, and that there was evidence that Christians were generally
able to live and worship without government interference, as only “fanatical
Hindus or Moslems” were concerned with Christian activities. The IJ further noted
that there were reports that the relations among various religious groups generally
were amicable for a substantial majority of the population, and attacks against
Christians had decreased since the year 2000. With respect to Nagaland, the IJ
found that the area was largely Christian, and the fact that there was a military
presence to combat government insurgents was not a sufficient basis for granting
asylum. The IJ also found that adhering to the Christian faith in India was not a
sufficient basis by itself for granting asylum. Thus, the IJ found that Longchar and
his wife had failed to prove that they were “refugees” within the meaning of the
INA, and further had failed to demonstrate eligibility for withholding of removal
and CAT relief.
Longchar appealed to the BIA, arguing essentially that the IJ erred by
denying Longchar asylum, withholding of removal, or CAT relief because the
evidence demonstrate both past persecution and a well-founded fear of future
persecution, as demonstrated by reports showing violence and hostility against
Christians. The BIA dismissed Longchar’s appeal and found that, assuming
Longchar’s testimony was credible, he failed to establish past persecution on the
13
basis of a protected ground because the motivations for the attack were purely
speculative and not based on any verifiable proof. Finally, it agreed with the IJ’s
finding that, based upon an evaluation of the country conditions, Longchar failed
to demonstrate a well-founded fear of future persecution or torture in India.
On appeal, Longchar argues that the IJ erred by finding that he did not suffer
past persecution because the evidence of the country conditions demonstrated that
Christians are the target of persecution in India, and he testified that he was himself
beaten for sharing his Christian faith with others. He next argues that the
cumulative acts of violence and harassment can amount to persecution, especially
in the instant case because, based on objective evidence, the government of India is
unable or unwilling to control persecutors of Christians. Longchar then argues
that, because he suffered past persecution, he is entitled to a presumption of a well-
founded fear of future persecution. Alternatively, Longchar argues that his
testimony combined with the background material submitted demonstrates that he
is “very likely” to suffer future persecution if returned to India because he is a
Christian and is known to have preached Christianity. Next, Longchar argues that
he is entitled to relief because the record demonstrates a “pattern and practice” of
persecution of groups similarly situated to his own. Longchar then argues that his
testimony regarding the motive of his attackers, even if unsubstantiated, is
14
supported by the evidence of the general country conditions in India, and,
therefore, he has established past persecution. Lastly, Longchar argues that he is
entitled to withholding of removal because the government did not overcome the
presumption of a well-founded fear and it is more likely than not that he will be
persecuted because of his religious beliefs if returned to India.
We review only the BIA’s decision, except to the extent that it expressly
adopts the IJ’s opinion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001) (citation omitted). To the extent that the IJ’s decision was based on a legal
determination, review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-
48 (11th Cir. 2001). The IJ’s factual determinations are reviewed under the
substantial evidence test, and we “must affirm the [IJ’s] decision if it is ‘supported
by reasonable, substantial, and probative evidence on the record considered as a
whole.’” Al Najjar, 257 F.3d at 1283-84 (citation omitted). Thus, factual
determinations “may be reversed by this court only when the record compels a
reversal; the mere fact that the record may support a contrary conclusion is not
enough to justify a reversal of the administrative findings.” Adefemi v. Ashcroft,
386 F.3d 1022, 1027 (11th Cir. 2004).
An alien who arrives in or is present in the United States may apply for
asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Secretary of Homeland
15
Security or the Attorney General has discretion to grant asylum if the alien meets
the INA’s definition of a “refugee.” See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1).
A “refugee” is:
[A]ny person who is outside any country of such person’s nationality
or, in the case of a person having no nationality, is outside any
country in which such person last habitually resided, and who is
unable or unwilling to return to, and is unable or unwilling to avail
himself or herself of the protection of, that country 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. . . .
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) (emphasis supplied). The asylum
applicant carries the burden of proving statutory “refugee” status. See Al Najjar,
257 F.3d at 1284. To establish asylum eligibility, the alien must, with specific and
credible evidence, establish (1) past persecution on account of a statutorily listed
factor, or (2) a “well-founded fear” that the statutorily listed factor, in this case
political opinion, will cause such future persecution. 8 C.F.R. § 208.13(a), (b); Al
Najjar, 257 F.3d at 1287. The INA does not expressly define “persecution” for
purposes of qualifying as a “refugee.” See INA § 101(a)(42), 8 U.S.C. §
1101(a)(42). However, this Court has discussed other circuits’ holdings that
“persecution” is an “extreme concept,” requiring more than “a few isolated
incidents of verbal harassment or intimidation,” or “[m]ere harassment.” Sepulveda
v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005).
16
A showing of past persecution creates a presumption of a “well-founded
fear,” subject to rebuttal by the INS. 8 C.F.R § 208.13(b)(1). A “well-founded
fear” of persecution may also be established by showing a reasonable possibility of
personal persecution that cannot be avoided by relocating within the subject
country. 8 C.F.R. § 208.13(b)(2)(i) & (ii). It is “well-established” that the well-
founded fear inquiry contains both an objective and subjective component, i.e., the
petitioner must be genuinely afraid and that fear must be objectively reasonable.
Al Najjar, 257 F.3d at 1289. Furthermore, it is the petitioner’s burden to present
“specific, detailed facts showing a good reason to fear that he or she will be singled
out for persecution.” Id. at 1287 (internal quotation, emphasis, and citation
omitted).
As for withholding of removal, an alien “must show that his life or freedom
would be threatened on account of race, religion, nationality, membership in a
particular social group, or political opinion.” Sanchez v. U.S. Att’y Gen., 392 F.3d
434, 437 (11th Cir. 2004). “An alien bears the burden of demonstrating that he
more-likely-than-not would be persecuted or tortured upon his return to the country
in question.” Id.As to past persecution, Longchar’s testimony was that, on August 6, 1986,
he was beaten by four people he did not recognize over a “matter to settle.” The
17
only “matter” that Longchar could point to was that he had been reaching out to
Hindus. He further indicated that it was his belief that his attackers were not
Christians and were hired by the Hindus. Thus, Longchar’s testimony established
only that he thought the attackers were beating him for his Christian activities, and
stopped beating him only after he appeared to be dead. Longchar was treated for
only minor injuries and lived without incident in India for four more years before
coming to the United States. During the four years following his beating, it does
not appear that Longchar stopped being Christian or stopped participating in
Christian activities, but nevertheless, he never again was assaulted by anyone.
On this record, it cannot be said that the BIA’s determination that Longchar
failed to prove that he was attacked because of his Christianity compels a reversal.
The fact that the country reports indicate that there exists some violence between
Hindu extremists and Christians does not prove that Longchar’s attack was
religiously motivated, and the absence of any further attacks against him for four
years following the attack supports the BIA’s finding that Longchar’s testimony
regarding why he was attacked was speculative and non-specific.3 In fact,
Longchar’s interpretation of the country reports would mean that every Indian
Christian who was ever attacked for any reason whatsoever would be a victim of
3
It is noted that there is no objective evidence of what the country conditions of India
were back in 1986, when Longchar was beaten.
18
past persecution without having to demonstrate a specific nexus between the attack
and his religion.
Furthermore, Longchar’s argument that the cumulative acts of violence,
uncontrolled or unabated by the government of India, proved his past persecution
is unavailing. Longchar does not cite any Eleventh Circuit precedent on point, but
rather relies on In re O-Z- & I-Z-, 22 I&N Dec. 23, 25-26 (BIA 1998), where the
BIA found that a Jewish petitioner had established that his son was beaten severely
enough to require surgery, his furniture and possessions stolen or destroyed, anti-
Semitic flyers were delivered to his apartment, and his son was forced to undress
in front of classmates, and each of these events were tied specifically to anti-
Semitism or an anti-Semitic group. The BIA concluded that, in the aggregate, the
incidents established past persecution. Id. at 26.
Unlike in O-Z & I-Z-, Longchar’s testimony was that he was attacked one
time, and the motivations for the attack were unclear. Here, there is nothing to take
“in the aggregate,” as there are no specific instances other than the one beating he
received. Thus, Longchar’s case is factually distinguishable from O-Z- & I-Z-, and
the harm suffered by Longchar was not as great or greater than the harm suffered
by the petitioner there, nor was it, as noted above, tied explicitly to his religious
beliefs as it was in O-Z- & I-Z-. Thus, Longchar is not entitled to a presumption of
19
a well-founded fear of future persecution.
As to a well-founded fear of future persecution, Longchar relies almost
exclusively on the country reports indicating that Hindu extremists, who have ties
to the national Indian government, have committed violence against Christians. In
fact, as Longchar makes clear in his brief, he believes that merely “being a
Christian” provides him with a well-founded fear of persecution. Since at least 23
million Christians currently reside in India, Longchar’s suggestion without more
that 23 million people are presently being persecuted is not warranted.
The objective evidence in the case consists of Longchar’s testimony that his
youngest brother-in-law had his home ransacked during a prayer meeting by the
Indian army, and was then taken away when the army found a knife and accused
him of being a member of a “freedom movement” against the Indian government.
His brother, along with some others, were tortured for being freedom fighters of
Nagaland. Longchar believes that the Indian army’s battle against the freedom
movement is just a pretext for persecuting Christians, but he offered no specific
reason why. Longchar also testified that his uncle, who distributed Christian
literature sent by Longchar to teach what Christianity was “all about,” was beaten
by the Indian army and later died. Longchar believes that the government would
know that he distributed the Christian literature because his name was on the
20
address of the boxes.
The country reports indicate that India, as a whole, has problems with
religiously motivated violence against both Muslims and Christians, although the
number of attacks has decreased. The central government of India has received
criticism for failing to restrain extremist Hindu groups, who appear to be
responsible for the majority of the attacks. Christians, however, were also noted to
be oppressors in regions where they constituted a majority. It is also noted that a
2004 report by the U.S. Commission on International Religious Freedom
recommended placing India on the list of “Countries of Particular Concern.”
However, another report found that, in northern India, which is where Nagaland is
located, only a few isolated incidents involving attacks on religious minorities
were reported. The same report states that, “[d]espite the incidents of violence and
discrimination during the period covered by this report, relations between various
religious groups generally are amicable among the substantial majority of
citizens.”
It cannot be said that this record compels a reversal of the BIA’s decision.
The country reports, while they indicate that there is some violence towards
Christians, also indicate that the incidents are more isolated than Longchar
suggests. Given our deference to the BIA on factual findings, the reports alone are
21
not sufficient to compel a reversal here. Longchar’s testimony, moreover, did not
explain why it would be reasonable to believe that, out of a country of 1 billion
people and 23 million Christians, the government or other Hindu extremists would
specifically be interested in persecuting him, especially in light of the fact that he
was last in his home country more than 10 years ago and has family there that have
not been persecuted. While it is clear that there exist some Hindu extremist groups
that have attacked Christians, and Longchar’s subjective fears are understandable,
the record does not suggest that Longchar is more likely to be targeted than the
other 23 million Christians generally.
Finally, Longchar, perhaps in recognition of the fact that he cannot show
that he is likely to be singled out individually, argues that there exists a “pattern
and practice” of persecution of similarly situated people sufficient to show a
reasonable possibility, and, therefore, a well-founded fear of persecution.
Longchar relies on a First Circuit case, Perez-Alvarez v. I.N.S., 857 F.2d 23, 25
(1st Cir. 1988), for the proposition that, if 1 out of 10 persons in the applicant’s
country is in danger, the well-founded fear standard is met.
The First Circuit in Perez-Alvarez relied upon the Supreme Court’s decision
in I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434(1987) for its 1 in 10 language. See Perez-Alvarez, 857 F.2d at 25, citing Cardoza-
22
Fonseca, 480 U.S. at 431, 107 S.Ct. at 1213. However, the passage cited in
Cardoza-Fonseca is a secondary persuasive authority that did not ultimately
become a part of the Supreme Court’s holding that an alien claiming asylum is not
statutorily required to show, as part of the “well-founded fear” requirement, that it
is “more likely than not” that he will be persecuted if deported. Cardoza-Fonseca,
480 U.S. at 449-50, 107 S.Ct. at 1222. Thus, we decline to adopt the 1 in 10
requirement.
Even if we did adopt the 1 in 10 language, however, Longchar has cited to
no evidence that would objectively prove that 1 out of 10 of the 23 million
Christians in India, let alone members of religious minorities as a whole, are in
danger because of their respective religions. Hindus, according to the 2003
International Religious Freedom report, constitute the majority religion at 82
percent. Assuming this is true, there are 180,000,000 people in India practicing
non-Hindu religions, but there is no evidence that 1 in 10 of them, which at a
minimum would be 180,000 people, are being persecuted because of their non-
Hindu religious beliefs. Longchar has presented no evidence, even with the
articles he submitted, to support his claim that he is entitled to asylum because of
the “pattern and practice” rule promulgated by the First Circuit in Perez-Alvarez.
Simply stating that “religious strife is rampant in India, including hostility toward
23
Christians,” is not sufficient to support his claim.
As to withholding of removal, because Longchar cannot meet the less
stringent standard for proving he is entitled to asylum, he cannot demonstrate his
entitlement to the more stringent “more likely than not” standard required for
withholding of removal. See Al Najjar, 257 F.3d at 1303.
Based on the foregoing, we conclude that substantial evidence supported the
BIA’s determination that Longchar failed to prove past persecution, a well-founded
fear of future persecution, or that it was more likely than not that he would be
persecuted if returned to India. Accordingly, the petitioners failed to prove that
they were entitled to either asylum or withholding of removal, and we, therefore,
deny the petition.
PETITION DENIED.
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