Apu Debnath v. Attorney General United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-3807
_____________
APU CHANDRA DEBNATH,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
_______________________
On Petition for Review from the Board of Immigration Appeals
Agency No. A209-953-809
Immigration Judge: Honorable John B. Carle
_______________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 24, 2018
Before: SMITH, Chief Judge, McKEE, and RESTREPO, Circuit Judges.
(Filed: November 9, 2018)
_______________________
OPINION*
_______________________
*
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SMITH, Chief Judge.
Apu Chandra Debnath, a citizen of Bangladesh, petitions for review of a decision
of the Board of Immigration Appeals, which affirmed and adopted the Immigration
Judge’s decision denying his application for asylum based on religious persecution.
Because substantial evidence supports the IJ’s finding that Debnath was not persecuted in
Bangladesh, we will deny the petition.
I.
Debnath practiced Hinduism in Bangladesh, a country that is predominantly
Muslim and that has designated Islam as its state religion. He encouraged other residents
in his town of Noakhali to “worship our God” and attend Hindu community programs.
This activity led some members of the Bangladesh Islamic Organization to both threaten
and attack him.
On three occasions between June 2014 and April 2015, members of the Noakhali
Bangladesh Islamic Organization demanded that Debnath convert to Islam or leave the
country. Organization members threatened that, if he did not comply, they would behead
him. When conveying at least one of these threats, a member held a knife to Debnath’s
throat.
After a two-month period without any threats or reprisals, several Organization
members attacked Debnath at a Hindu festival in Noakhali. Ten members told him that
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he could not practice Hinduism in Bangladesh, and then three members hit him in the
forehead with metal-topped wooden sticks. After the attack, a doctor gave Debnath four
stitches and various medications.
Debnath attended another Hindu festival in February 2016 and was attacked again
by the same members of the Bangladesh Islamic Organization. They repeated that he
needed to convert to Islam or leave Bangladesh and stabbed him in his legs, causing him
to return to the same doctor and receive more stitches. Although Debnath left Noakhali
and traveled to his uncle’s house in a town 80 miles away, he remained a target of the
Organization. Some of its members obtained his cell-phone number and called him,
telling him not to return home and that “[w]herever you go, our organization will find
you.”
Debnath’s father decided that his son should leave Bangladesh and try to live with
another uncle in the United States. Debnath journeyed to the United States but was
detained and charged with being removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I) for
lacking a “valid entry document.” He conceded removability but applied for asylum
based on religious persecution.1
1
Debnath also applied for withholding of removal, protection under the Convention
Against Torture, and asylum based on membership in a particular social group, but on
appeal he has abandoned any arguments that he is entitled to these forms of relief.
3
At a hearing before an IJ, Debnath described the Bangladesh Islamic
Organization’s attacks and threats as well as his belief that he would be killed by this
group if he returned to Bangladesh, regardless of where he lived.
The IJ found Debnath credible but denied his asylum application. The IJ decided
that the attacks and threats Debnath experienced were too “isolated” and insufficiently
severe to establish that he had been persecuted and that he failed to show that he had a
well-founded fear of future persecution. The Board of Immigration Appeals affirmed and
adopted the IJ’s decision.
II.
We have jurisdiction under 8 U.S.C. §1252(a)(1) to review the Board’s decision.
Shehu v. Att’y Gen. of U.S., 482 F.3d 652, 656 (3d Cir. 2007). The Board, having
jurisdiction pursuant to 8 C.F.R. § 1003.1(b)(3), adopted the IJ’s decision without
providing additional analysis of Debnath’s asylum application, so we review that decision
in addition to the Board’s. See Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002);
Abdulai v. Ashcroft, 239 F.3d 542, 548–49 & n.2 (3d Cir. 2001). We review for
substantial evidence the IJ’s factual findings regarding whether Debnath suffered past
persecution or has a well-founded fear of future persecution. See Gao, 299 F.3d at 272.
III.
On appeal, Debnath argues that the IJ erred by concluding that the attacks he
suffered constituted mere “isolated incidents” of violence and not past persecution. He
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asserts that the attacks were not isolated because the same members of the Bangladesh
Islamic Organization perpetrated the two attacks for the same purpose—to punish him for
practicing Hinduism. He adds that the IJ further erred by failing to consider the threats
and violence he experienced in aggregate and by minimizing the seriousness of these
attacks and threats.
Regardless of how the link between the two attacks is characterized, the IJ
permissibly decided that they were insufficiently serious to qualify as persecution.
“[P]ersecution denotes extreme conduct.” Voci v. Gonzales, 409 F.3d 607, 614 (3d Cir.
2005) (internal quotation marks and citation omitted). Here, the attacks did not rise to
this high bar because Debnath was attacked only twice and his injuries required that he
receive just several stiches. See Kibinda v. Att’y Gen. of U.S., 477 F.3d 113, 117, 119–20
(3d Cir. 2007) (upholding finding that petitioner did not suffer past persecution by getting
struck in face by “heavy object” and requiring seven stitches); cf. Voci, 409 F.3d at 610,
614 (ruling that the Board erred in determining that applicant had not been persecuted
despite being beaten at least seven times and sustaining injuries requiring “extended
hospitalization”). Moreover the IJ did assess in combination the threats and attacks,
ruling that “the two physical attacks … and threats … are insufficient to establish
persecution.” As a final matter, the IJ did not diminish the death threats made against
Debnath but reasonably decided that they were not “so menacing as to cause significant
actual suffering or harm.” See Chavarria v. Gonzalez, 446 F.3d 508, 518 (3d Cir. 2006)
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(internal quotation marks and citation omitted); Ladyha v. Holder, 588 F.3d 574, 577
(8th Cir. 2009) (upholding finding that petitioner “threatened at knifepoint” was not
persecuted); Datau v. Mukasey, 540 F.3d 37, 40–41 (1st Cir. 2008) (upholding finding
that death threat at knifepoint did not show persecution).2
Debnath next contends that because the IJ found his testimony credible, the IJ
should have accepted his assertion that the attacks were “severe,” which, he suggests,
would compel the conclusion that he had been persecuted. But “[t]he fact that, as here, a
petitioner’s testimony is deemed credible is not determinative” because this fact does not
mean that the attacks and threats met the threshold of extreme conduct. Shardar v.
Ashcroft, 382 F.3d 318, 323 (3d Cir. 2004). Debnath also argues that the IJ erred by not
identifying the corroborating evidence that he needed to bolster his testimony and thereby
meet his burden to obtain relief. Yet the IJ did not rely on a lack of corroborating
evidence in denying relief (in fact, the IJ credited Debnath’s testimony in its entirety), so
he had no obligation to inform Debnath of missing corroborating evidence. See Voci, 409
F.3d at 616–17.
IV.
2
Because we conclude that the IJ permissibly decided that Debnath has not suffered past
persecution, we need not reach his arguments that the IJ erred in finding that police in
Noakhali were willing and able to control his attackers and that he is entitled to the
presumption, based on his past persecution, that he had a well-founded fear of future
persecution.
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For the reasons discussed above, we will deny the petition for review.
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Apu Debnath v. Attorney General of the United States, No. 17-3807
RESTREPO, Circuit Judge, concurring in the judgment.
I concur in the judgment of the majority denying the petition for review. However,
in my view, Debnath’s petition fails not because the threats and violence he was
subjected to are insufficiently serious or isolated in nature. Rather, I would reach the
same result upon a conclusion that Debnath “has not demonstrated that his past harm and
fears of future harm was or will be inflicted by the government of Bangladesh or by a
non-governmental actor that the government is unwilling or unable to control.” A.R. 3
(BIA decision); see also A.R. 63 (IJ decision) (“Even if a reviewing Court were to find
Respondent’s past experiences in Bangladesh rise to a level of past persecution,
Respondent has not persuaded this Court that the government of Bangladesh is unable or
unwilling to control the individuals who harmed Respondent.”); Gao v. Ashcroft, 299
F.3d 266, 272 (3d Cir. 2002); Kibinda v. Att’y Gen. of U.S., 477 F.3d 113, 119 (3d Cir.
2007).
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