Sah v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 2, 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
KANHAI LAL SAH,
Petitioner,
No. 04-9556
v. (Agency No. A71-948-896)
(Petition for Review)
ALBERTO R. GONZALES; *
MICHAEL CHERTOFF, **
Respondents.
ORDER AND JUDGMENT ***
Before SEYMOUR , McCONNELL , and TYMKOVICH , Circuit Judges.
*
On February 4, 2005, Alberto R. Gonzales became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Gonzales is substituted for John Ashcroft as a
Respondent in this action.
**
On March 3, 2005, Michael Chertoff became the Secretary of the
Department of Homeland Security. In accordance with Rule 43(c)(2) of the
Federal Rules of Appellate Procedure, Mr. Chertoff is substituted for Tom Ridge
as a Respondent in this action.
***
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
This appeal arises from a decision by an immigration Judge (IJ) denying a
request by Appellant Kanhai Lal Sah for asylum or withholding of removal. The
Board of Immigration Appeals (BIA) affirmed this decision. We also affirm.
I.
Mr. Sah was born in India in 1964 and came to the United States in 1990.
He is Hindu. 1
Shortly before his entry visa expired in 1991, Sah applied for
asylum, alleging that he would be targeted by Muslims in his home province,
located in the southeastern part of India.
When Sah lived in India, he was active in a group called Vishwa Hindu
Parishad (Vishwa). Vishwa, according to Sah, is an organization committed to
Hindu nationalism. In his 1991 asylum application, Sah stated that Vishwa was
“fighting to demolish Babri Mosque,” a mosque in southern India, because “[t]his
mosque is built on our sacred land.” R. 148. In fact, in 1992, after Sah had
1
India is home to more than one billion people, with Hindus representing a
substantial majority. See The World Factbook: India , at http://www.cia.gov/cia/
publications/factbook/geos/in.html (last updated Apr. 21, 2005). Muslims are the
largest religious minority in India, accounting for roughly 12 percent of the
population. See id.
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already come to the United States, Hindu extremists rioted and destroyed the
mosque. In his asylum application, Sah noted that he “took a very active part in
organizing and conducting [anti-mosque] meeting[s]” and that he “actively
participated in the riots to [attempt to] demolish the Babri Mosque.” Id.
Nothing in the record indicates that the Government ever ruled on Sah’s
asylum application. Instead, the Government in 1997 initiated removal
proceedings based on Sah’s failure to depart from the United States after his visa
expired. He then filed a second application for asylum or withholding of removal,
asserting, among other things, his fear of persecution if he returned to India. In
explaining his participation in Vishwa in the second application, Sah said
Vishwa’s goal was to “retake or share the land where the Barbri [ sic ] Mosque is
located.” R. 140 (emphasis added). Sah subsequently testified at his removal
hearing that Vishwa was not violent and that he personally did not favor the
destruction of the Babri Mosque.
The IJ denied the request for asylum, relying largely on three findings.
First, the IJ concluded that Sah’s oral statements were not credible in light of the
contradiction between his testimony and his original asylum application. Second,
the IJ found that, notwithstanding his testimony to the contrary, Sah had
participated in the persecution of non-Hindus and thus was ineligible for asylum.
Third, the IJ noted that “India has approximately 800 million Hindus living there
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and [Sah] has not shown that he could not live in another area where it is more
peaceful for people of his religion.” R. 46.
On appeal, the BIA held that the IJ’s credibility finding was supported by
the record. Accordingly, the Board affirmed the decision denying Sah’s asylum
application.
II.
Sah initially challenges the IJ’s factual findings. The BIA affirmed the IJ’s
credibility finding and otherwise relied on the IJ’s disposition of the case. We
review the IJ’s findings to determine whether there was “substantial evidence in
the record” to support them. Estrada-Escobar v. Ashcroft , 376 F.3d 1042, 1046
(10th Cir. 2004); cf. Gemechu v. Ashcroft , 387 F.3d 944, 947 (8th Cir. 2004)
(stating that the IJ’s findings should be treated as part of the final agency decision
to the extent that the BIA adopts those findings).
Ordinarily, an alien seeking asylum must establish that he is a refugee who
faces or has faced persecution in his homeland. See 8 U.S.C. §§ 1101(a)(42) &
1158(b)(i). To establish refugee status, the applicant must demonstrate that he has
suffered past persecution or has “a well-founded fear of [future] persecution on
account of race, religion, nationality, membership in a particular social group, or
political opinion.” Id. § 1101(a)(42)(A). “Persecution” under this section means
not only persecution by the government but also by a non-governmental group that
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the government is “unwilling or unable to control.” Estrada-Escobar v. Ashcroft ,
376 F.3d 1042, 1046 (10th Cir. 2004) (citation omitted). A person may not claim
refugee status under the statute, however, if he “ordered, incited, assisted, or
otherwise participated in the persecution of any person on account of . . .
religion.” 8 U.S.C. § 1101(a)(42); see also id. § 1158(b)(2)(A)(i) (listing
persecution of others (described in language identical to § 1101(a)(42)) as
circumstance disqualifying applicant from asylum). Nor does an applicant qualify
for asylum by merely showing a well-founded fear of returning to a particular city
or region in his home country; rather, he must demonstrate he is unable to return to
any place within that country. 8 C.F.R. §§ 208.13(b)(2)(ii), 1208.13(b)(2)(ii). In
this case, the IJ found that Sah was ineligible for asylum based on his participation
in the persecution of non-Hindus and the lack of a well-founded fear of returning
to his home country.
Sah’s original asylum application provided evidence of his role in the
persecution of Muslims by stating that Sah had a leadership role in a group
favoring the demolition of the Babri Mosque. Sah bore the burden of refuting this
evidence and demonstrating that he was not disqualified from seeking asylum. See
Hernandez v. Reno , 258 F.3d 806, 812 (8th Cir. 2001); see also Elzour v.
Ashcroft , 378 F.3d 1143, 1151 n.10 (10th Cir. 2004) (applying a similar allocation
of burdens under a different provision of § 1158(b)(2)(A)). Sah attempted to meet
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this burden in two ways. First, he asked the IJ to reinterpret the references to
Vishwa’s goals with respect to the mosque in the original asylum application as to
“share or remove” it rather than to “demolish” it. R. 63. Second, he testified that
Vishwa actually favored sharing the Babri Mosque site with Muslim worshipers
and, more generally, opposed violence against non-Hindus.
The IJ found Sah’s representations not credible. The IJ’s credibility
determination relied largely on the inconsistency between Sah’s characterization of
his background and conduct at the hearing and his earlier, more militant statements
in the asylum papers. The IJ also considered it notable in assessing credibility that
Sah testified that this mother and brother died two years apart, when official
records showed that their deaths were separated by only a few weeks. The IJ
found that Sah’s misstatement of such a basic fact—a fact used by Sah in order to
convince the IJ of future persecution if he returned to India—cast significant doubt
on Sah’s credibility. Finally, the IJ found that Vishwa was affiliated with the
Bharatiya Janata Party (BJP), which a State Department report characterized as “a
Hindu nationalist party with links to Hindu extremist groups that have been
implicated in violent acts against Christians and Muslims.” R. 45 (quotation
omitted).
Sah contends that the IJ’s findings are unsupported by the evidence. We
disagree. The record supports the IJ’s conclusion that Sah made inconsistent
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statements over time to bolster what he thought was his strongest argument for
asylum. In light of these “specific, cogent reasons for disbelieving the witness’
testimony,” we must uphold the IJ’s credibility finding. Elzour , 378 F.3d at 1152(quotation omitted).
Sah also claims that the IJ erred by finding that Vishwa was affiliated with
the BJP. Our review of the record suggests that the IJ may have indeed confused
the BJP with a group called Rashtriya Swayamsewak Sangh (RSS). According to
the State Department, there is considerable overlap among the leadership and
membership of the BJP and the RSS, but “the BJP is an independent political
party, and the degree of RSS influence over its policy making is not clear.”
R. 112. Sah acknowledged that Vishwa was linked to the RSS but did not describe
any connection with BJP.
Nevertheless, the connection between Vishwa and the RSS does not
undermine the IJ’s conclusion that Sah was complicit in the attempted persecution
of Muslims and Christians. It is evident from the State Department’s report about
India that the RSS and the BJP espouse similar principles. Thus, it is immaterial
whether Vishwa was linked to the RSS (as described by Sah) or the BJP (as stated
by the IJ); the effect on this appeal is the same. What is important is Sah’s own
evidence about his role in anti-Muslim activities. Accordingly, any confusion on
the part of the IJ was harmless and provides no basis for reversal of the decision
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denying asylum. See Nazaraghaie v. INS , 102 F.3d 460, 465 (10th Cir. 1996)
(holding that BIA’s alleged failure to consider particular evidence was harmless
and therefore did not merit reversal).
Finally, we note that Sah has not challenged the IJ’s finding that Sah could
relocate to a region within India that is more accepting of Sah’s religion and
culture. Indeed, this determination would be difficult to refute; as approximately
800 million Hindus live in India (nearly 80% of the population), they constitute the
dominant religion and culture in that country. While we acknowledge that
portions of Sah’s testimony suggest that Vishwa activists face reprisals throughout
India, we will not overturn the IJ’s finding when Sah himself has not challenged it.
Cf. United States v. Cantley , 130 F.3d 1371, 1377-78 (10th Cir. 1997) (according
dispositive effect to the district court’s uncontested finding that the defendant
lacked standing to raise a Fourth Amendment claim).
III.
In his last remaining claim, Sah asserts that the BIA improperly engaged in
its own fact-finding on appeal. We disagree. In asserting this claim, Sah has not
identified any specific factual determination made by the BIA. Because he has
failed to develop this argument adequately, we cannot grant relief on the record
before us. See Threet v. Barnhart , 353 F.3d 1185, 1190 (10th Cir. 2003).
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We note, moreover, that the BIA’s opinion does not support Sah’s
characterization of it. Contrary to Sah’s assertion, the BIA did not engage in de
novo fact-finding, in violation of 8 C.F.R. § 1003.1(d)(3)(iv). Instead, the BIA
properly assessed whether the IJ’s factual determinations were clearly erroneous,
as prescribed by 8 C.F.R. § 1003.1(d)(3)(I).
IV.
For the foregoing reasons, we AFFIRM the decision of the BIA denying
Sah’s request for asylum or withholding of removal.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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