Hasmukhlal Patel v. Jefferson Sessions, III ( 2018 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 18a0203n.06
No. 17-3890
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
HASMUKHLAL GORDHANDAS PATEL, ) Apr 18, 2018
) DEBORAH S. HUNT, Clerk
Petitioner, )
)
ON PETITION FOR REVIEW
v. )
FROM THE UNITED STATES
)
BOARD OF IMMIGRATION
JEFFERSON B. SESSIONS, III, Attorney General, )
APPEALS
)
Respondent. )
)
)
BEFORE: GILMAN, COOK, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
Hasmukhlal Gordhandas Patel petitions this court for review of the Board of Immigration
Appeals’s (BIA) order dismissing his appeal from the denial of his applications for withholding
of removal under the Immigration and Nationality Act (INA), 8 U.S.C. § 1231(b)(3)(A), and
protection under the Convention Against Torture (CAT), 8 C.F.R. § 208.16. Because Patel
abandoned his challenge to the agency’s adverse credibility determination (which is nonetheless
supported by substantial evidence), and Patel’s due process rights were not violated during the
proceedings, we deny the petition for review.
I.
Patel, a native and citizen of India, entered the United States without inspection in 2011.
The Department of Homeland Security instituted removal proceedings against Patel, who
conceded removability. Patel subsequently filed an application for relief in the form of a request
No. 17-3890, Patel v. Sessions
of withholding of removal under the INA and protection under the CAT. He rested both claims
on the same ground—that he would be persecuted in India on account of his political opinion as
a member of the ruling Bharatiya Janata Party (BJP).
Relevant here, Patel alleged in his application and affidavit that between 2008 and 2009,
opposition party supporters stalked and threatened to harm him and his family, threatened to
sexually assault his daughter, and had thrown stones at his home. Patel added in his affidavit
that “[e]ven complaining at a police station did not stop them.” Then, at his withholding hearing,
Patel testified that six people on three bikes beat him with hockey sticks. Patel had no medical
or other records to support this claim, but he presented a corroborating witness who described
how “three or four people came in a vehicle,” beat Patel with hockey sticks, and then “took [a]
bike and ran away.” Patel equivocated on whether he reported any of these alleged events to the
police.
After the hearing, the immigration judge (IJ) denied Patel relief in a written decision.
The IJ concluded that, as a threshold matter, Patel was not credible because: (1) there were
“material discrepancies” between Patel’s application materials and his hearing testimony;
(2) Patel’s hearing testimony was both “internally inconsistent” and inconsistent with that of his
corroborating witness; (3) Patel gave vague descriptions of certain events “important to his
claim;” and (4) he was “evasive” and “nonresponsive” throughout the hearing.
The IJ also concluded that the merits alternatively doomed Patel’s claims. The IJ held
that Patel was not eligible for relief under the INA because he could reasonably and safely
relocate within India to avoid persecution, and he had not demonstrated “that he would be
singled out for persecution . . . based on his political opinion, or that there exist[ed] a pattern or
practice of persecution of similarly situated individuals” there. Nor, reasoned the IJ, was Patel
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eligible for CAT protection because he could safely relocate, and he had failed to provide
sufficient evidence that he had suffered any actual torture in India, or that a pattern of such
human-rights violations persisted against BJP members.
On appeal, the BIA upheld the IJ’s adverse credibility finding. The BIA likewise agreed
with the IJ’s alternative finding that Patel was not eligible for withholding of removal. The BIA
explained that the IJ’s relocation and past-torture determinations were not clearly erroneous, and
added that the record evidence also failed to establish that Patel was likely to be tortured with the
consent or acquiescence of an Indian public official or other person acting in an official capacity,
as required for CAT protection. Moreover, the BIA found no merit to Patel’s argument that the
IJ had “behaved in a biased or unjust manner” at the hearing or had otherwise denied Patel due
process. This timely petition for review followed.
II.
Patel argues that he credibly established his eligibility for withholding of removal, and
that the IJ denied him due process by failing to provide any opportunity at the hearing to explain
the inconsistencies the agency relied upon to find him incredible. “Where, as here, the BIA
issues its own decision rather than summarily affirming the IJ, the BIA decision is reviewed as
the final agency decision, but the IJ’s decision is also reviewed to the extent that the BIA adopted
it.” Harmon v. Holder, 758 F.3d 728, 732 (6th Cir. 2014).
A.
We begin with a brief note regarding the agency’s adverse credibility determination.
Unless the evidence compels a contrary conclusion, we cannot reverse. Ndrecaj v. Mukasey,
522 F.3d 667, 675 (6th Cir. 2008). Here, although Patel generally contends that he met “his
burden [of] establishing past persecution and demonstrating a nexus between the past persecution
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and . . . future persecution,” he did not develop a cogent argument as to why we are compelled to
conclude the IJ erred by finding him incredible. We therefore deem this issue abandoned. See,
e.g., Vander Boegh v. EnergySolutions, Inc., 772 F.3d 1056, 1063 (6th Cir. 2014).
And even if it were not abandoned, the BIA reasonably concluded that the “totality of the
circumstances”—namely, the discrepancies between eyewitness accounts of the beating Patel
allegedly suffered at the hands of opposition party supporters, Patel’s omission of that incident
from his application and affidavit, and his omission from his hearing testimony of any mention
of the specific threat of sexual assault against his daughter alleged in his application and
affidavit—supported an adverse credibility determination. Indeed, these inconsistencies and
omissions “[go] to the heart of [Patel’s] claim[s]” of withholding for fear of persecution on
account of a political opinion. See Liti v. Gonzales, 411 F.3d 631, 637 (6th Cir. 2005); see also 8
U.S.C. § 1158(b)(1)(B)(iii). This determination is fatal to Patel’s claims for relief under the INA
and the CAT because both are based on the same ground. See Slyusar v. Holder, 740 F.3d 1068,
1073–74 (6th Cir. 2014). And because “an application deemed incredible will not be reviewed
on the merits,” we decline to address Patel’s challenges to the BIA’s adverse relocation and
likelihood-of-future-persecution findings. Id. at 1074.
B.
Rather than attempt to explain or reconcile any of the discrepancies identified by the IJ
and BIA, Patel asserts that the IJ violated his due process rights by failing to provide him an
opportunity to do so at the withholding hearing. We review de novo Patel’s due process
allegations. Bi Qing Zheng v. Lynch, 819 F.3d 287, 296 (6th Cir. 2016).
The Fifth Amendment entitles aliens facing removal “to a full and fair hearing.”
Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir. 2001). A due process violation occurs
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only “when the proceeding was so fundamentally unfair that the alien was prevented from
reasonably presenting his case.” Hassan v. Gonzales, 403 F.3d 429, 436 (6th Cir. 2005) (internal
quotation marks and citation omitted). The applicant must show “not only error, but also
substantial prejudice.” Lin v. Holder, 565 F.3d 971, 979 (6th Cir. 2009) (internal quotation
marks omitted). Here, Patel contends in a single sentence that the IJ never “raise[d] concerns
about” the discrepancies related to “reporting to the police” or to the beating, and even
“stopp[ed] [him] from testifying.” But the record belies any allegation that Patel had no “full
and fair” opportunity to address these issues at the hearing. See Huicochea-Gomez, 237 F.3d at
699.
Take, for example, the IJ’s and the BIA’s finding that Patel took inconsistent positions on
whether he reported threats to the police. During the hearing, Patel’s attorney prompted him to
explain why he did not want to report anything to the police. The government then questioned
Patel repeatedly about whether, and what events, he reported. The government also confronted
Patel with his affidavit in which he stated that he had complained to the police, but Patel gave
irreconcilable responses. First, he maintained that he must have meant the BJP had filed a
complaint, and then recanted and asserted that he had gone to the police himself at some point.
The IJ inserted himself into this line of questioning only to ask the government to clarify a
question for Patel’s benefit, and to ask Patel to explain why he thought he would be arrested if he
reported the hockey-stick incident to the police.
Patel was also questioned, on direct and on cross-examination, about the hockey-stick
incident. He was able to explain his version of events, describe his injuries, and mention a
doctor visit. He was also able to present a corroborating witness. But when the government
asked Patel why he had not included the beating in his application or affidavit, Patel again gave
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confused responses. Patel first asked: “What happened? What are you––which one?” The
government then repeated that it was asking about the affidavit Patel had submitted with his
withholding application. Patel still did not address the omission, stating vaguely that “[t]he
things which ha[d] already happened in India with the affidavit which I have got a paper from
India. That is what I have reported.” It was only after these two failed attempts at eliciting a
coherent response that the IJ admonished Patel for being nonresponsive and directed the
government’s attorney to ask his next question about the beating. Thus the IJ did not “prevent”
Patel from testifying about the police reporting issue or the hockey-stick incident. And Patel’s
counsel could have revisited either topic on redirect, and sought clarification, but she did not.
Accordingly, and contrary to his assertions, Patel was afforded a reasonable opportunity
at the hearing to explain these material inconsistencies. Although he faults the IJ for failing to
“raise concerns” at the hearing, Patel bore the stringent burden of production and persuasion.
See Liti, 411 F.3d at 640–41; see also 8 C.F.R. § 1208.16(b), (c)(2). Patel advances no support
for the claim that the IJ had a duty to raise and address every possible inconsistency on an
applicant’s behalf. See Jin Ju Zhao v. Holder, 322 F. App’x 437, 440 (6th Cir. 2009) (per
curiam) (upholding the IJ’s adverse credibility determination where petitioner had a “fair
opportunity to explain the most relevant discrepancies in the record evidence”). Nor does Patel
explain how the IJ’s cited attempts to actively involve himself in questioning witnesses and to try
to understand their testimony rendered the “proceeding so fundamentally unfair that [Patel] was
prevented from reasonably presenting his case.” See Hassan, 403 F.3d at 436. Indeed, we afford
the IJ “broad discretion to control the manner of interrogation in order to ascertain the truth.”
Mikhailevitch v. INS, 146 F.3d 384, 391 (6th Cir. 1998) (internal quotation marks and citation
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omitted). In sum, we agree with the BIA’s conclusion that Patel “received a full and fair hearing
on the merits of his” claims.
III
For these reasons, we deny Patel’s petition for review of the BIA’s decision.
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