Hiren Patel v. Atty Gen USA , 454 F. App'x 91 ( 2011 )

IMG-009 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-2215
___________
HIREN PATEL,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A094-924-043)
Immigration Judge: Honorable Frederic G. Leeds
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 1, 2011
Before: SCIRICA, CHAGARES and GREENBERG, Circuit Judges
(Filed:December 5, 2011 )
_________
OPINION OF THE COURT
_________
PER CURIAM.
As we write primarily for the parties, who are familiar with the background of this
petition for review, we will but briefly recapitulate the relevant facts. Patel is a Hindu
citizen of India from the western state of Gujarat. Departing India on April 21, 2005,
Patel fled to Guyana and then Brazil, before crossing into the United States near Hidalgo,
Texas, on March 23, 2007. He was eventually apprehended and put into removal
proceedings.
Patel filed an asylum application on February 9, 2008, claiming he was persecuted
in India due to his status as an outspoken member of the Bharatiya Janata Party (BJP).
The presiding Immigration Judge (IJ) denied his application, finding that Patel had not
testified credibly about his experiences in India and had failed to independently establish
a likelihood of future persecution.1 Administrative Record (A.R.) 31, 44. Alternatively,
the IJ concluded, ―even if he were credible, I do not believe he has a valid claim in light
of the fact that he could relocate in his home country, where he is part of the 80 percent
majority Hindu population and the Muslims who he claims he is having the problems
with represent 13 percent of the population in India.‖ A.R. 42. The Government ―ha[d]
been successful in proving the respondent has been able to relocate.‖ A.R. 44.
The Board of Immigration Appeals (BIA) dismissed Patel’s appeal, as ―even
assuming that the Immigration Judge’s negative credibility determination on the issue of
past persecution [was] clearly erroneous,‖ Patel had failed to ―address the Immigration
Judge’s holding that even if his alleged mistreatment is credited, the government met its
1
See 8 U.S.C. § 1101(a)(42)(A) (defining ―refugee‖ as one who suffers persecution on
the basis of race, religion, nationality, membership in a particular social group, or
political opinion); 8 C.F.R. § 1208.13(b)(1) (successfully demonstrating past persecution
yields presumption of well-founded fear of future persecution); see also Huang v. Att’y
Gen., 620 F.3d 372, 380–81 (3d Cir. 2010); Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d
Cir. 2003).
2
burden in rebutting the presumption of future persecution by presenting country
conditions which show that internal relocation is a viable option.‖2 A.R. 3–4. This
petition for review followed, challenging only the asylum and withholding of removal
outcomes.3
We have jurisdiction under 8 U.S.C. § 1252 to review the decision of the BIA,
although we may review the IJ’s opinion to the extent that the BIA ―substantially relied
on that opinion.‖ Camara v. Att’y Gen., 580 F.3d 196, 201 (3d Cir. 2009). ―We apply
substantial evidence review to agency findings of fact, departing from factual findings
only where a reasonable adjudicator would be compelled to arrive at a contrary
conclusion.‖ Demandstein v. Att’y Gen., 639 F.3d 653, 655 (3d Cir. 2011) (per curiam)
(citations, quotations omitted). Due to the way in which the BIA resolved Patel’s appeal,
the only issue properly before us is whether the agency decisions, which found the
Government to have rebutted the presumption of (to the extent one existed) or an
independent fear of future persecution by showing both the plausibility of relocation
within India and changed country conditions, see Cheng v. Att’y Gen., 623 F.3d 175, 183
n.4 (3d Cir. 2010), were supported by substantial record evidence.4 See Konan v. Att’y
2
See Gambashidze v. Ashcroft, 381 F.3d 187, 192–93 (3d Cir. 2004) (discussing
relocation and burden of proof).
3
Patel waived Convention Against Torture claims by not including them in his opening
brief. See Dwumaah v. Att’y Gen., 609 F.3d 586, 589 n.3 (3d Cir. 2010) (per curiam).
4
In his opening brief, Patel continues to assail the IJ’s adverse credibility finding, and
argues that the agency decisions against him are rendered problematic, even in the
independent alternative, by the mere presence an adverse credibility determination. We
do not agree with this premise, as nothing forbids the BIA from assuming credibility and
3
Gen., 432 F.3d 497, 501 (3d Cir. 2005) (―It is a bedrock principle of administrative law
that judicial review of an agency’s decision is limited to the rationale that the agency
provides.‖).
We conclude that the decisions are supported by the record. First, the country
reports suggest that the BJP was the dominant political force in Gujarat by 2008, A.R.
299, and much of the material regarding violence in Gujarat dates from far before this
time—indeed, there is a discussion of anti-Muslim violence instigated by the BJP, but
little detailing the converse. See, e.g., A.R. 297 (―The vast majority of persons of every
religious group lived in peaceful coexistence; however, there were organized communal
attacks against minority religious groups, particularly in states governed by the BJP.‖);
see also A.R. 304. This shift in power may have plausibly neutralized whatever threat
Patel would have faced in Gujarat. With regard to the question of relocation, the
Government had the burden of proof of showing that Patel ―could avoid future
persecution by relocating to another part‖ of India. 8 C.F.R. § 1208.13(b)(1)(i)(B),
(b)(1)(ii); Wang v. Gonzales, 405 F.3d 134, 139 (3d Cir. 2005). India is a large,
populous nation, with a sizeable Hindu majority; moreover, the BJP, of which Patel is a
member, held power in several states as of 2008, including Gujarat. See A.R. 298–99.
We are not unsympathetic to Patel’s depiction of the hardship of relocation, but we
denying asylum regardless. Cf. Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir. 2005) (when
BIA identified error, assumed credibility, and found the petitioner to have nevertheless
failed to satisfy the requirements for asylum, we reviewed ―the BIA’s legal conclusions
assuming the credibility of‖ the testimony).
4
observe that he already has relocated in similar circumstances, and it would therefore be
reasonable to conclude that he can conduct his business elsewhere in the country if need
be, especially given the sizeable sphere of BJP influence.
As we conclude that substantial record evidence supports the agency denial of
Patel’s request for asylum, it follows that his application for withholding of removal,
relief which involves a ―more stringent applicable standard,‖ was also properly denied.
See Murdic v. Att’y Gen., 469 F.3d 94, 102 n.8 (3d Cir. 2006).
Thus, for the foregoing reasons, we will deny the petition for review.
5