Madhok v. Holder

14-102
Madhok v. Holder
BIA
Christensen, IJ
A201 123 477
A201 123 478
A201 123 479
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 15th day of April, two thousand fifteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 GUIDO CALABRESI,
9 DENNY CHIN,
10 Circuit Judges.
11
12
13 HARPREET KAUR MADHOK, AKA HARPREET
14 KAUR TULI, AKA HARPREET KAUR, AKA
15 HARPREETKAUR MADHOK, ARVINDER
16 SINGH, JAPNEET SINGH MADHOK,
17 Petitioners,
18
19 v. 14-102
20 NAC
21
22 ERIC H. HOLDER, JR., UNITED STATES
23 ATTORNEY GENERAL,
24 Respondent.
25
26
27 FOR PETITIONERS: Iqbal S. Ishar, Ishar Law Firm, P.C.,
28 New York, New York.
1 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
2 Attorney General; Terri J. Scadron,
3 Assistant Director; Colin J. Tucker,
4 Trial Attorney, Office of
5 Immigration Litigation, U.S.
6 Department of Justice, Washington,
7 D.C.
89 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review is
12 DENIED.
13 Petitioners Harpreet Kaur Madhok (“Madhok”), Arvinder
14 Singh, and Japneet Singh Madhok, natives of India and citizens
15 of Australia, seek review of a December 5, 2013, decision of
16 the BIA affirming a January 12, 2012, decision of an Immigration
17 Judge (“IJ”) denying Madhok’s application for asylum,
18 withholding of removal, and relief under the Convention Against
19 Torture (“CAT”). In re Harpreet Kaur Madhok, Arvinder Singh,
20 Japneet Singh Madhok, Nos. A201 123 477/478/479 (B.I.A. Dec.
21 5, 2013), aff’g Nos. A201 123 477/478/479 (Immig. Ct. N.Y. City
22 Jan. 12, 2012). We assume the parties’ familiarity with the
23 underlying facts and procedural history in this case.
24 We review both the IJ’s and the BIA’s opinions “for the sake
25 of completeness.” Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.
2
1 2006). The applicable standards of review are well
2 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
3 Holder, 562 F.3d 510, 513 (2d Cir. 2009). Madhok requested
4 asylum, withholding of removal and CAT relief, alleging past
5 persecution and a fear of future persecution in Australia due
6 mainly to her gender and her Indian nationality. We agree with
7 the agency’s conclusion that she failed to establish her
8 eligibility for any relief.
9 I. Past Persecution
10 To show asylum eligibility based on past persecution, an
11 applicant must show that she suffered harm rising above
12 harassment and that the government either
13 imposed or acquiesced in the harm. Ivanishvili v. U.S. Dep’t
14 of Justice, 433 F.3d 332, 342 (2d Cir. 2006).
15 The IJ reasonably found that Madhok did not suffer past
16 persecution. She did not show that the government was
17 unwilling or unable to stop her physical abuse at the hands of
18 her first husband. Id. (holding that harm by private actor is
19 persecution only if government is unwilling or unable to stop
20 it). As the IJ found, the 2010 State Department Report on
21 Australia shows that the Australian government enforced
3
1 domestic violence laws, provided programs to combat domestic
2 violence, and provided battered women with support and shelter.
3 Similarly, Madhok failed to show government involvement or
4 acquiescence to discrimination in her private business. Id.5 Finally, Madhok’s detention, interrogation, and theft
6 charge do not constitute persecution. The evidence showed only
7 that she is subject to prosecution under a generally applicable
8 criminal law. She presented no evidence that the prosecution
9 was based on her Indian ethnicity. Jin Jin Long v. Holder, 620
10 F.3d 162, 166 (2d Cir. 2010) (holding that enforcement of
11 generally applicable laws is not persecution unless prosecution
12 is pretext for mistreatment on basis of protected ground).
13 II. Pattern or Practice of Persecution
14 As indicated by the absence of any past persecution, we
15 agree with the agency’s conclusion that Madhok did not establish
16 a pattern or practice of persecution of Indians in Australia.
17 A pattern or practice exists when the harm to a group is
18 “systemic or pervasive.” In re A-M-, 23 I. & N. Dec. 737, 741
19 (BIA 2005); see Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir.
20 2007); Santoso v. Holder, 580 F.3d 110, 112 n.1 (2d Cir. 2009).
21 Accordingly, Madhok had to show harm that both rose to the level
4
1 of persecution and was systemic or pervasive. Her evidence,
2 consisting mainly of news articles, describes only isolated
3 incidents of violence against Indians by individuals, not by
4 the police or other authorities. This evidence does not show
5 persecution. Ivanishvili, 433 F.3d at 342. Moreover, the
6 2010 State Department Report shows that the Australian
7 government is aware of private race discrimination in society
8 and is working to combat it. The Report mentions no
9 state-sponsored mistreatment of Indian nationals.
10 Because the agency reasonably concluded that Madhok
11 established neither past persecution nor an objectively
12 reasonable fear of harm that would constitute persecution, the
13 agency did not err in denying asylum, withholding of removal,
14 or CAT relief, as all of the claims were based on the same factual
15 predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
16 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
17 523 (2d Cir. 2006).
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of removal
20 that the Court previously granted in this petition is VACATED,
21 and any pending motion for a stay of removal in this petition
5
1 is DISMISSED as moot. Any pending request for oral argument
2 in this petition is DENIED in accordance with Federal Rule of
3 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
4 34.1(b).
5 FOR THE COURT:
6 Catherine O=Hagan Wolfe, Clerk
6