Naik v. Atty Gen USA

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
10-29-2004
Naik v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1838
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
NOS. 03-1838 & 03-3965
____________
NAYANABEN NAIK
Petitioner
v.
JOHN ASHCROFT, AS ATTORNEY GENERAL OF THE UNITED STATES;
MICHAEL J. GARCIA, AS ASSISTANT SECRETARY FOR THE
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT,
DEPARTMENT OF HOMELAND SECURITY; WILLIAM RILEY,
DISTRICT DIRECTOR, PHILADELPHIA BUREAU OF
IMMIGRATION AND CUSTOMS ENFORCEM ENT,
Respondents
___________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A73 039 409)
___________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 26, 2004
BEFORE: NYGAARD, AMBRO and VAN ANTWERPEN, Circuit Judges.
(Filed October 29, 2004)
__________
__________
OPINION
__________
VAN ANTWERPEN, Circuit Judge.
Nayanaben Naik (“Petitioner”) seeks review of a United States Department of
Justice Board of Immigration Appeals decision upholding the denial by the Immigration
Judge (“IJ”) of her applications for asylum, withholding from removal, protection under
the Convention Against Torture, and suspension of deportation. Our jurisdiction arises
under former Immigration and Naturalization Act (“INA”) § 106(a)(1), 8 U.S.C. §
1105a(a)(1).1 We will deny the petition to review.
I.
Because we write solely for the benefit of the parties, we state the facts only as
they pertain to our analysis. Nayanaben Naik, a citizen of India, entered the United States
without inspection on July 30, 1988. On February 14, 1994, she sought asylum. In her
hearing before the IJ on September 14, 1998, Petitioner testified that she encountered
persecution from Muslims due to her Hindu religion and her activities as a member of the
Vishwa Hindu Parishad (“VHP”) political and religious party in the state of Gujarat. She
1
Because Petitioner’s deportation proceedings commenced on December 13, 1995
with an Order to Show Cause and remained in progress on April 1, 1997, the amendments
to the INA made by the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), Pub.L. 104-208, 110 Stat. 3009, do not apply. IIRIRA § 309(c)(1).
However, the IIRIRA transitional rules concerning judicial review do apply, since
Petitioner’s final order of deportation was entered “more than 30 days after [September
30, 1996].” Id. § 309(c)(4)(E).
2
testified that she had participated in VHP parades in Gujarat three or four times a year
between 1986 and 1988. Muslims allegedly beat her with sticks and their fists during
such parades. In the one attack Petitioner testified to with specificity, approximately 50
or 60 Muslims armed with “small sticks” attacked an entire parade of approximately 100
to 200 Hindus. Petitioner testified that Muslims hit her on the back and on the legs on
this occasion. Petitioner also testified that Muslims left notes at her residence threatening
to bomb her home and cause her physical harm. Petitioner testified that she was now
afraid to return to India, as she believed that Hindus receiving similar notes were killed or
had their properties burned. She believed M uslims were engaging in such activity
throughout India, including India’s major cities. During Petitioner’s activities with the
VHP, Petitioner testified that she lived with her parents, as her husband lived in the
United States. Petitioner additionally testified that she did not receive any threats from
Muslims after late 1987, that she left Gujarat for the United States in July, 1988, and that
Gujarat is approximately 70 percent Hindu and 20 to 25 percent Muslim.
In oral decisions dated September 14, 1998 and December 4, 1998, the IJ denied
Petitioner’s applications for asylum, withholding of removal, Convention Against Torture
protection, and suspension of deportation. The IJ found that Petitioner, while credible,
had not sustained her burden of proof to establish either past persecution or a well-
founded fear of future persecution as set forth in 8 C.F.R. § 208.13(a) and (b). The IJ
alternatively found that, even if Petitioner had established persecution, the evidence,
3
including evidence on country conditions, showed relocation within India would be
reasonable. 8 C.F.R. § 208.16(b)(3). Petitioner timely filed a petition for review with
the Board, which dismissed her appeal in an order entered on February 24, 2003.
Petitioner filed a motion for reconsideration on March 26, 2003, which the Board denied
on September 10, 2003. Petitioner then filed a timely petition for review.
II.
Petitioner’s appeal challenges factual findings controlled by the substantial
evidence standard. Xie v. Ashcroft, 359 F.3d 239, 246 (3d Cir. 2004). Where, as here, the
Board defers to the findings and decision of an IJ, we look to the reasoning of the IJ in
our review of that decision. Dia v. Ashcroft, 353 F.3d 228, 244 (3d Cir. 2003) (en banc).
Our task is to determine whether it is supported by substantial evidence in the record. See
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Gao v. Ashcroft, 299 F.3d 266, 272 (3d
Cir. 2002). The scope of review is narrow. “[T]he administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude the
contrary.” 8 U.S.C. § 1252(b)(4)(B). That is, “[u]nder the substantial evidence standard,
the BIA’s findings must be upheld unless the evidence not only supports a contrary
conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001).
4
III.
We have defined “persecution” narrowly to only include extreme conduct. See
Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003) (“persecution connotes extreme
behavior, including ‘threats to life, confinement, torture, and economic restrictions so
severe that they constitute a threat to life or freedom.’”) (quoting Fatin v. INS, 12 F.3d
1233, 1240 (3d Cir. 1993)); see also Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000)
(“To qualify as persecution, a person’s experience must rise above unpleasantness,
harassment, and even basic suffering”).
However deplorable, the IJ correctly found that the attacks and threatening notes
described by Petitioner in her testimony do not rise to the level of persecution as
contemplated in 8 C.F.R. §§ 208.13(a) and (b). Petitioner and other parade participants
were hit multiple times at one or more parades with small sticks and fists, but Petitioner
did not testify to a need for medical treatment, and she testified that she participated in as
many as seven other VHP parades over a two-year period without incident. Similarly,
while Petitioner received threatening notes at her residence, she also testified that she did
not receive any threats from Muslims after late 1987, and the evidence in the record
revealed no other threats or acts of violence against Petitioner. The same is true for
Petitioner’s mother and father, with whom Petitioner lived in Gujarat, as well as her
brother, who also lived in the area. The record evidence also included two State
Department reports on India, a 1996 Country Report and a 1996 Comments on Country
5
Conditions and Asylum Claims, which did not document Muslim persecution of Hindus
but rather a broader Hindu-Muslim conflict over religious differences. Given the
evidence as a whole, we cannot say that a reasonable fact finder would be compelled to
conclude to the contrary of the IJ, who found that Petitioner failed to meet her burden as
to past persecution or a well-founded fear of future persecution.
Having found that substantial evidence supports the denial of asylum, we conclude
that withholding of removal was also properly denied. See Lukwago v. Ashcroft, 329 F.3d
157, 182 (3d Cir. 2003) (“If [a petitioner] is unable to satisfy the standard for asylum, he
necessarily fails to meet the standard for withholding of removal under [the INA].”).
Because the IJ’s findings with respect to persecution were supported by substantial
evidence, we need not consider whether the IJ erred in alternatively finding that
Petitioner’s relocation elsewhere in India would be reasonable. In any event, because
Petitioner raised this contention in a motion to reconsider, we review only for abuse of
discretion. Nocon v. INS, 789 F.2d 1028, 1033 (3d Cir. 1986). We discern no such abuse
here. As Hindus comprise approximately four-fifths of India’s population nationwide, the
IJ correctly found that Petitioner could relocate to other areas in India where she would
not risk interaction with Muslims, a solution suggested in the U.S. State Department’s
Country Profile on India.
6
IV.
Petitioner raises two additional issues, but we may not hear them. First, Petitioner
asks this Court to remand her case to the Board, so that she may seek administrative
closure of her case pending a final decision in her husband’s separate immigration
proceeding. Because the record shows she never requested administrative closure before
either the IJ or the Board, Petitioner has not exhausted this issue in the proceedings
below. See Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir. 1989) (noting that the
exhaustion requirement “bars consideration of particular questions not raised in an appeal
to the Board”). 2 Second, to the extent Petitioner contends it was error to deny suspension
of deportation pursuant to former INA § 244(a), 8 U.S.C. § 1254(a), we lack jurisdiction
to hear that argument. IIRIRA’s transitional rules provide that “there shall be no appeal
of any discretionary decision under section . . . 244 [of the INA].” IIRIRA §
309(c)(4)(E). Petitioner also waived this contention as she did not pursue this argument
in her brief. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993) (declining to
address issues not pursued on appeal).
For the foregoing reasons, the petition is denied.
2
In their respective briefs, the Government acknowledges Petitioner cannot be
removed while her husband’s application is pending, and Petitioner represents she is
eligible for an extension of voluntary departure for up to two years under the Family
Unity Program. 8 C.F.R. § 236.15.
7