Patel v. Attorney General of the United States ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
12-20-2007
Patel v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2884
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2884
MUKESHKUMAR R. PATEL,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No.A73-162-623)
Immigration Judge: Honorable Alberto J. Riefkohl
Submitted Under Third Circuit LAR 34.1(a)
December 13, 2007
Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges.
(Filed: December 20, 2007)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Mukesh Kumar Patel,1 his wife Hemlata Patel, and their children Dharmesh and
Kavish — all natives of India — petition for review of the order of the Board of
Immigration Appeals (“BIA”) denying their motion to reopen their immigration case. We
have jurisdiction pursuant to 8 U.S.C. § 1252. Since the BIA applied the wrong standard
in assessing the Patels’ motion to reopen, we will grant the Patels’ petition for review,
vacate the BIA’s order, and remand to the BIA for a re-evaluation of the motion to reopen
using the proper standard.
The Patels seek asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”) based on their fear of persecution and torture in India by the
Hindu extremist group, the Rastriya Sevak Sangh (“RSS”). The Patels are Hindus but
claim that RSS members beat and threatened Mr. Patel and other family members because
Mr. Patel helped protect Muslims from the RSS. The Immigration Judge (“IJ”) denied
the Patels relief because he did not find Mr. Patel to be credible due to inconsistencies
between his written statements and testimony. The BIA adopted the pertinent parts of the
IJ’s findings.
The Patels filed an untimely motion to dismiss based on new evidence that was
unavailable beforehand. See 8 C.F.R. § 1003.2(c)(2), (3)(ii). Specifically, they submitted
1
Although Mr. Patel’s name is spelled “Mukeshkumar” by the BIA and on our docket,
the Patels spell it “Mukesh Kumar” in their brief.
2
affidavits indicating that, in the time since the BIA issued its final order, RSS members
had twice gone to the home of Ms. Patel’s father, where they demanded money,
vandalized the property, threatened him, and said they would physically harm Mr. Patel
when he returned to India.
The BIA accepted the untimely motion due to the new evidence on which it was
based and appears to have found that evidence credible. However, it rejected the motion
on the merits, finding that the Patels “failed to establish that reopening is warranted”
because the evidence they submitted “does not establish that [they] could not relocate to a
different locality in India, where the RSS is not aware of [Mr. Patel’s] previous
activities.” (A.R. Supp. 2.) Mr. Patel testified before the IJ that relocation within India
would be a “big problem” because he did not know any of the languages spoken in
India’s other provinces. (A.R. 100.) Furthermore, the Patels submitted evidence to
suggest that the RSS was affiliated with the then-ruling Bharatiya Janata Party (“BJP”)
and was active throughout India. The Patels now claim that the BIA failed to address this
evidence and thus erred in finding that they “failed to sustain their burden to show that
they would not be free from persecution elsewhere in India.” (Petr.’s Br. at 3-4.)
We review the BIA’s denial of a motion to reopen for abuse of discretion, which
means that we will not disturb it unless it is “arbitrary, irrational, or contrary to law.”
Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). We have made clear that the grant of
a petition for review is warranted when the BIA holds an applicant to an “excessively
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rigorous standard” in its evaluation of a motion to reopen. Id. at 563-64.
To succeed on a motion to reopen, an applicant must establish prima facie
eligibility for the relief he seeks. Id. at 563. To establish prima facie eligibility, the
applicant must produce objective evidence demonstrating that there is a “reasonable
likelihood” that he can establish that he is entitled to relief. Id. As we explained in Guo,
“[a] ‘reasonable likelihood’ means merely showing a realistic chance that the petitioner
can at a later time establish that [relief] should be granted.” Id. at 564.
In effectively requiring the Patels to “establish” that they could not relocate
elsewhere in India, the BIA applied a more rigorous standard than it should have for the
evaluation of a motion to reopen.2 An applicant for asylum or withholding of removal
who has not established past persecution “bear[s] the burden of establishing that it would
not be reasonable for him or her to relocate, unless the persecution is by a government or
is government-sponsored.” 8 C.F.R. §§ 208.13(b)(3)(i), 208.16(b)(3)(i). Therefore, in
the context of a motion to reopen, an applicant claiming fear of persecution that is not by
a government or government-sponsored must show a reasonable likelihood that he or she
would be able to establish at a later time that relocation within the country would be
unreasonable. At the motion-to-reopen stage, an applicant need not actually establish that
such relocation is impossible or unreasonable, but the BIA required the Patels to do so in
2
The Patels do not directly challenge the standard that the BIA employed but, in order
to rule on their argument that the BIA erred in the conclusion that it reached regarding
their ability to relocate within India, we need to determine exactly what the Patels had the
burden to demonstrate at the motion-to-reopen stage.
4
this case.
If the persecution that an applicant for asylum or withholding of removal fears is
either by the government or is government-sponsored, the applicant does not have the
burden to show that relocation would be unreasonable. Rather, relocation is presumed to
be unreasonable and it is the government’s burden to show that it would be reasonable.
8 C.F.R. §§ 208.13(b)(3)(ii), 208.16(b)(3)(ii). The Patels seem to assert that the RSS is
sufficiently intertwined with the government for persecution by the RSS to constitute
government or government-sponsored persecution. They point to the February 23, 2001
State Department Country Report’s description of the ties between the RSS and the BJP,
“a Hindu nationalist political party with links to Hindu extremist groups.” (A.R. 187.)
The Report explains: “Many BJP leaders and party workers are members of [the RSS]
and share some of its ideology. However, the BJP is an independent political party and
the degree of RSS influence over its policy making is not clear. . . . Most BJP leaders also
are RSS members.” Id. The BIA, however, never explicitly indicated whether
persecution by the RSS qualifies as government or government-sponsored persecution —
even though the answer to this question bears directly on whether the Patels had the
burden to demonstrate anything regarding the unreasonableness of relocation in their
motion to reopen. If relocation factors into the BIA’s decision on remand, it should
clearly address this question.
There is also no need to establish that internal relocation is impossible or
5
unreasonable in order to make out a prima facie case for relief under the CAT. In ruling
on an application for CAT relief, the BIA must consider “[e]vidence that the applicant
could relocate to a part of the country of removal where he or she is not likely to be
tortured” — along with considering any other “evidence relevant to the possibility of
future torture.” 8 C.F.R. § 208.16(c)(3). Therefore, at most, the Patels should have been
required to show in their motion to reopen that they were reasonably likely to be able to
establish at a later time that there is no place they can relocate in India where they are
unlikely to be tortured.
Since the BIA held the Patels to a more rigorous standard than it should have
regarding all three forms of relief that they seek, we will grant the petition for review,
vacate the BIA’s order, and remand the case to the BIA for a re-evaluation of the motion
to reopen using the proper standard.
6