Nazirmohammad I. Vah v. Eric H. Hol , 707 F.3d 904 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3189
N AZIRMOHAMMAD I. V AHORA,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A 088-558-982
A RGUED M AY 31, 2012—D ECIDED F EBRUARY 25, 2013
Before M ANION, K ANNE, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Nazirmohammad I. Vahora
is a citizen of India. He is also Muslim. In 2002, a train
caught fire in Gujarat, India, where he lived. Many
Hindu pilgrims and activists were killed, and violence
between Hindus and Muslims followed. Vahora testified
that he and several Muslim friends were shot in the
days after the train fire by local Hindu religious or
2 No. 11-3189
political leaders, and that these persons continued to
pursue him throughout India in the four years he
remained there. The Board of Immigration Appeals
(“BIA”) affirmed the immigration judge’s conclusion
that the persecution of which Vahora complains was not
carried out by persons the government of India was
unable or unwilling to control. While evidence in the
record reflects that the government of India has taken
steps to prosecute persons alleged to be responsible for
the violence in the aftermath of the train burning, other
than a conversation with a police officer whom he
said visited him in the hospital and advised him to tell
people that he was shot randomly during a police
fight, Vahora never sought help from any authorities.
Because substantial evidence supports the BIA’s deter-
mination that Vahora was not persecuted by persons
the government of India is unable or unwilling to
control, we deny the petition for review.
I. BACKGROUND
The immigration judge accepted Vahora’s testimony
as true for the purposes of its decision, and the narrative
that follows reflects Vahora’s account. On February 27,
2002, at least fifty-eight people were killed after a
train caught fire near the Godhra train station in
Gujarat, India. Most of those killed were Hindu
pilgrims and activists. The tragedy led to increased
tension between Hindu and Muslim groups in the
region, as there was suspicion that a mob of Muslim
individuals had attacked the train and was responsible
No. 11-3189 3
for the fire. A period of violence and riots followed,
resulting in the death of nearly 1,000 people.
Vahora is Muslim. He testified at a hearing before
an immigration judge that on March 3, 2002, he and
three of his friends were sitting at a teahouse in Gujarat
when two Hindu religious and political leaders, accom-
panied by four or five police officers, approached
Vahora and his friends. He said the two, whom he de-
scribed in his statement as religious and political
leaders, were Sandeep Patel, the head of a local unit of
the Bharatiya Janata Party (“BJP”), a political party, and
Ketan Mistry, the local leader of the Vishwa Hindu
Parishad (“VHP”), a Hindu nationalist organization.
Vahora testified that the Hindu leaders threatened
him and said the country was meant for Hindus and not
for Muslims. They then blamed Vahora and his friends,
who were also Muslim, for the burning of the train.
Vahora said that after one friend denied that allegation,
Patel took a gun from one of the policemen and fatally
shot Vahora’s friend. Vahora stated that his other friend
tried to resist, but that Patel shot and killed him as
well. Vahora testified that Patel then shot him in the
chest and left, thinking Vahora had died.
Vahora recounted that while he recovered in the
hospital, a police officer named Mr. Bhatt came to inter-
view him. Vahora said that after he told Bhatt what
had happened, Bhatt told him to tell everyone that
police were fighting at the time and that he just got
caught by a bullet. Vahora said that he complied with
Bhatt’s suggestion and stated in a report that he was
struck by a “police bullet.”
4 No. 11-3189
Soon after Bhatt’s visit, Vahora stated that Patel came
to the hospital, displayed a gun, warned him to maintain
his story about being injured in a “police firing,” and
threatened to kill him if he did not cooperate. Vahora
said he feared for his life and so did not report the
incident to the police. Vahora stated that he did not
leave his home for approximately five months after he
left the hospital because he was afraid. He said that
when he did leave his home, he encountered Patel at a
grocery market and Patel threatened him, asking him
whether he wanted to survive. Scared for his safety,
Vahora said he left Gujarat to stay with his sister in
Mumbai in July 2002.
Vahora claimed that one year later, in August 2003, he
ran into Mistry in Mumbai. Vahora stated that he
gave Mistry false information when asked his current
address, but that Mistry started visiting his home
looking for him and even called him one night to tell
him they were going to kill him. Vahora stated that two
days later, the leaders, along with eight to ten boys,
knocked him off his bike and hit him, and that he was
only saved when local shopkeepers and taxi drivers
rushed to assist him.
Vahora stated that he then moved to Delhi and began
working at a hotel there in November 2003. Two years
later, he said, Patel and some others came to the hotel’s
front desk and asked for him. He said that when he
saw one with a knife, he ran outside, and they assaulted
him but ran away when the hotel owner came to the
scene. Vahora said that he returned to his hometown
No. 11-3189 5
because he missed his wife and brothers, saw the
leaders when he and his wife were out for a walk, and
was again saved when shopkeepers came to his rescue.
Vahora testified that he left for Guatemala a few days
later and arrived there in February 2006. A person there
helped him travel through Mexico and then into the
United States, where he said he arrived on June 29, 2006.
He filed his application for asylum on June 28, 2007. A
hearing took place before an immigration judge. The
immigration judge gave Vahora “the benefit of the
doubt” and concluded that he had timely applied for
asylum within one year of his entry into the United
States. Although the immigration judge stated that
Vahora set forth a “somewhat improbable, or at least
implausible” story that two local Hindu leaders con-
tinued to pursue him even after he left Gujarat, the immi-
gration judge declined to make an adverse credibility
finding. Instead, the immigration judge ruled that even
accepting Vahora’s testimony as true, Vahora had not
presented a cognizable claim of past persecution or
shown that he had a well-founded fear of future per-
secution because he did not demonstrate that the
Indian government was unable or unwilling to protect
him. On appeal, the Board of Immigration Appeals af-
firmed, also ruling that Vahora failed to show that he
suffered past persecution or that he had a well-founded
fear of future persecution by a group that the govern-
ment is unable or unwilling to control. Vahora now
petitions this court for review.
6 No. 11-3189
II. ANALYSIS
The Board of Immigration Appeals issued its own
opinion rather than simply adopting the immigration
judge’s decision, and we will uphold the BIA’s deter-
mination so long as it is supported by substantial evi-
dence. Zhou Ji Ni v. Holder, 635 F.3d 1014, 1018 (7th
Cir. 2011). Under this standard, we let the agency’s de-
termination stand “if it is ‘supported by reasonable, sub-
stantial, and probative evidence on the record considered
as a whole.’ ” Raghunathan v. Holder, 604 F.3d 371, 376
(7th Cir. 2010) (citations omitted).
To receive asylum, Vahora bears the burden of proving
that he is a “refugee” within the meaning of the Immigra-
tion and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(42).
8 C.F.R. § 1208.13(a). A “refugee” under the INA is a
person who is unable or unwilling to return to his home
country, “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.” 8 U.S.C.
§ 1101(a)(42). When a petitioner establishes that he was
the victim of past persecution, a rebuttable presump-
tion that he has a well-founded fear of persecution in
the future results. 8 C.F.R. § 208.13(b)(1); Zhou Ji Ni,
635 F.3d at 1018.
To constitute persecution, the harm suffered must be
sufficiently severe. The conduct in question must rise
above the level of mere harassment; the conduct must
“threaten death, imprisonment, or the infliction of sub-
No. 11-3189 7
stantial harm or suffering.” Sharif v. INS, 87 F.3d 932,
935 (7th Cir. 1996). Vahora testified that he was shot,
which is unquestionably sufficiently severe. The govern-
ment also does not contest that Vahora was shot “on
account of” his religion.
That does not end the inquiry, however. A petitioner
will not receive asylum if he could relocate to another
part of his country of nationality and it would be rea-
sonable under the circumstances to expect him to do so.
8 C.F.R. § 208.13(b)(2)(ii); Oryakhil v. Mukasey, 528 F.3d
993, 998 (7th Cir. 2008). In addition, and most relevant
here, “persecution” under the INA does not encompass
purely private actions. Jonaitiene v. Holder, 660 F.3d
267, 270 (7th Cir. 2011). The INA does not afford relief,
for example, to “those who are unfortunate enough to
be victims of ordinary crime or generalized chaos.” Escobar
v. Holder, 657 F.3d 537, 543 (7th Cir. 2011). Rather, to
receive protection under the statute, the persecution
must be inflicted by the government, or by private
actors whom the government is unable or unwilling to
control. Jonaitiene, 660 F.3d at 270. It was on this basis
that the immigration judge, and later the BIA, denied
Vahora’s asylum request.
Vahora maintains that the BIA wrongly concluded
that he did not establish that he was persecuted, or had
a well-founded fear of future persecution, from per-
sons that India’s government is unable or unwilling to
control. Vahora predicates his claim of persecution on
the actions of Patel and Mistry. He did not suggest in
his testimony that Patel or Mistry worked for India’s
8 No. 11-3189
government, nor did he present any evidence that they
did. He instead described them as local leaders of a
political party and a Hindu nationalist organization.
Because Vahora alleges persecution by private actors, to
receive asylum he must show that India’s government
“either condones [the persecution] or is helpless to pre-
vent it.” Hor v. Gonzales, 421 F.3d 497, 501 (7th Cir. 2005).
The BIA’s conclusion that Vahora failed to show that
the government of India was unable or unwilling to
protect him is supported by substantial evidence. The
State Department’s Country Report on Human Rights
Practices for 2008 reflects that the government of India
has taken steps to punish the persons responsible for
the violence in Gujarat in 2002, including local leaders of
the BJP and VHP and local police officers. But Vahora
did not seek assistance from the authorities and never
filed any sort of report of what he now says happened
to him.
Vahora made no attempt to seek protection from the
federal or state government during the four years he
remained in India prior to his February 7, 2006
departure, even after he relocated to different cities
throughout India in an attempt to stay away from local
BJP and VHP leaders from his hometown. He also did
not complain to anyone in authority about his assailants
after the incidents in Mumbai and Delhi. Although
Vahora speculated that reporting to authorities would
have been futile, substantial evidence supports the
BIA’s determination otherwise. Cf. Ornelas-Chavez v.
Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006) (stating an
No. 11-3189 9
applicant need not have reported the persecution if
doing so would have been futile or subjected him to
further abuse). The BIA pointed to the 2008 Country
Report which indicates that the Indian government was
continuing efforts to find those persons responsible
for violence in 2002 following the train burning at
Godhra, that police officers were being tried for their
alleged roles in the violence, that political leaders had
been arrested in connection with the riots, and that a
Special Investigation Team had been instituted to look
into the cases relating to the train burning and resulting
communal riots.
More specifically, the Report states that the Supreme
Court had followed the recommendations of a Central
Review Committee and directed in 2004 that 134
persons charged under a different statute for the 2002
Gujarat train burning be charged under the Penal Code.
It also recounted that in 2003 the Court had instituted a
Special Investigation Team to reinvestigate the Gujarat
train cases, and that within six months had arrested
eleven people allegedly connected to the 2002 train
burning and resulting communal riots. Significantly,
among those arrested were local leaders of the BJP and
VHP. The Country Report also notes that 41 police
officers were being tried for their alleged roles in the
violence, another fact relevant to Vahora’s case to the
extent he is suggesting that police officers present at
the scene of his shooting are pertinent to his claim.
The Country Report further states that the Supreme
Court was continuing its efforts to find those responsible
10 No. 11-3189
for the violence following the train burning and that the
Court had asked Gujarat police to review the closure
of numerous cases without investigation, though the
police concluded that a majority could not be reinvesti-
gated due to lack of witnesses. It also noted that the
National Human Rights Commission and the National
Commission for Minorities, two government entities,
had intervened in several high-profile cases, including the
2002 anti-Muslim violence in Gujarat. Although many
persons responsible for the 2002 violence still have not
been brought to justice, the Country Report reflects that
the Indian government has taken steps to punish
offenders and that it neither condones the persecution
Vahora fears nor is powerless to prevent it. And
although we have cautioned about overreliance on
State Department reports, this is not a case where the
immigration court blindly relied on such reports while
ignoring other evidence in the record. Cf. Gomes v.
Gonzales, 473 F.3d 746, 756 (7th Cir. 2007).
The BIA was also not persuaded by the conversation
Vahora claims he had with a police officer in his
hospital room soon after the shooting. Vahora testified
that while recovering in the hospital, an officer came
to see him and advised him not to tell the truth about
who had shot him and instead to say that he had been
shot during a random police firing. Vahora contends
that this officer’s failure to protect him demonstrates
that the Indian government was unable or unwilling to
protect him. Other than this conversation with a local
police officer, however, Vahora never attempted to
obtain help from authorities in the four years between
No. 11-3189 11
the shooting incident and his departure from India,
even after he relocated to different states in India and
even though he said that the threats continued.
Although police apathy can indicate a government’s
unwillingness or inability to protect an applicant, the
BIA reasonably determined that the single conversation
with a non-supervisory police officer in the hospital
did not mean that the government was unable or
unwilling to protect Vahora. In contrast, for example, in
Guchshenkov v. Ashcroft, 366 F.3d 554, 557-58 (7th Cir.
2004), a petitioner complained to police after he was
beaten the night of his wedding by persons who told
him he should not have married someone from a
different nationality. When he went to the police, they
responded with indifference. After he was beaten a
third time and suffered a lacerated liver, he went to
the police station seven times but did not receive help
and was told a year later that his case had been lost
from the archive and that the police were overloaded
with other cases. Id. at 556.
We also found evidence that a government was unable
to protect a petitioner in Hor, 421 F.3d at 502, a case the
BIA noted in its decision in Vahora’s case. The applicant
in Hor sought help from the Algerian military but was
told it could not protect him. He then sought help from
the courts but received only a decision recommending
that he be cautious and keep a low profile. We found
that to be evidence that the government of Algeria was
incapable of protecting the applicant. See id.; see also
Pramatarov v. Gonzales, 454 F.3d 764, 766 (7th Cir.
12 No. 11-3189
2006) (“There is some evidence of governmental com-
plicity, however, in the reaction of military officers to
Pramatarov’s complaints about being beaten and humili-
ated because of his ethnicity and in the refusal of the
police to take action after he and his wife were beaten
outside the restaurant.”).
We certainly do not suggest that a person must seek and
be denied assistance seven times to receive asylum. But
Vahora had never sought and been refused police assis-
tance nor had he ever made a report to the police
or government authorities of what he now claims hap-
pened to him. Cf. Ingmantoro v. Mukasey, 550 F.3d 646, 650
(7th Cir. 2008) (denying petition where no evidence
presented suggesting that police refused to respond to
filed reports and noting fact that police did not
prevent harm on one occasion does not compel a
finding that they were unable or unwilling to prevent it).
And the Country Report in the record suggests that the
government is not unwilling or unable to take steps to
address the persecution of which Vahora complains
when it is notified.
Moreover, we agree with the government that
Vahora’s testimony undermines his claim that the Indian
government was unable or unwilling to control his assail-
ants. He testified that Patel and Mistry were pursuing
him because they feared he would implicate them in
the March 3, 2002 shooting, including to the Special
Investigation Team set up by the government to investi-
gate the violence after the train burning. Vahora also
wrote in his written statement that they threatened to
No. 11-3189 13
harm him for revealing their connection to the shootings.
But this motive for seeking to silence Vahora suggests
that Patel and Mistry indeed feared facing consequences
from the government for their crime. In other words,
Vahora’s assertion that Patel and Mistry were after him
to avoid being implicated in the shooting belies his argu-
ment that the government of India was not willing or
able to hold Patel and Mistry accountable or protect
him from persecution. After reviewing the record, we
conclude that substantial evidence supports the BIA’s
conclusion to deny Vahora asylum.
Vahora also sought withholding of removal. Because
that standard is more stringent than the standard for
asylum, an applicant who does not establish eligibility
for asylum necessarily cannot meet the higher standard
for withholding of removal. Bueso-Avila v. Holder, 663
F.3d 934, 939 (7th Cir. 2011). This request therefore fails
as well.
Finally, Vahora challenges the BIA’s denial of his
motion to reopen, a decision we review for an abuse of
discretion. See Moosa v. Holder, 644 F.3d 380, 384 (7th
Cir. 2011). A motion to reopen proceedings will not be
granted unless the “evidence sought to be offered is
material and was not available and would not have
been discovered or presented at the previous proceed-
ing.” 8 C.F.R. § 1229a(c)(7)(C)(ii); see 8 C.F.R. § 1003.2(c)(1);
Moosa, 644 F.3d at 384. Here, the only new evidence
Vahora offered was a Wikipedia article on Gujarat
and a copy of the State Department’s 2004 International
Religious Freedom Report. The 2004 report was not new
14 No. 11-3189
evidence, as the 2008 International Religious Freedom
Report was already in the record. And the Wikipedia
article was undated, so Vahora failed to show it con-
tained new information. The BIA did not abuse its dis-
cretion when it denied the motion to reopen.
III. CONCLUSION
The petition for review is D ENIED.
2-25-13