Samuel Bhimanpalli v. Eric Holder, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1504
SAMUEL RICHARD BHIMANPALLI; RAVINDER RUFUS BHIMANPALLI;
RITA BHIMANPALLI; REBECCA RICHARD BHIMANPALLI; RODHA RACHEL
BHIMANPALLI,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: November 20, 2012 Decided: November 30, 2012
Before DUNCAN, AGEE, and WYNN, Circuit Judges.
Petition dismissed in part and denied in part by unpublished per
curiam opinion.
Anser Ahmad, ADVANCED IMMIGRATION LAW GROUP, Harrisburg,
Pennsylvania, for Petitioners. Stuart F. Delery, Acting
Assistant Attorney General, Leslie McKay, Assistant Director,
Sara J. Bergene, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samuel Richard Bhimanpalli, Ravinder Rufus
Bhimanpalli, Rita Bhimanpalli, Rebecca Richard Bhimanpalli and
Rodha Rachel Bhimanpalli, natives and citizens of India,
petition for review of an order of the Board of Immigration
Appeals (“Board”) dismissing their appeal from the immigration
judge’s order denying their applications for asylum, withholding
from removal and withholding under the Convention Against
Torture (“CAT”). We dismiss in part and deny in part the
petition for review.
The asylum applications were denied because the
applications were not timely filed and the Petitioners failed to
show changed country conditions or extraordinary circumstances
that would excuse the late filings. Under 8 U.S.C. § 1158(a)(3)
(2006), the Attorney General’s decision regarding whether an
alien has complied with the one-year time limit for filing an
application for asylum or established changed or extraordinary
circumstances justifying waiver of that time limit is not
reviewable by any court. Thus, this court has held that it
lacks jurisdiction over an asylum claim that was denied as
untimely. Niang v. Gonzales, 492 F.3d 505, 510 n.5 (4th Cir.
2007). This court has also held that it lacks jurisdiction to
review the immigration judge’s discretionary determination based
on factual circumstances that the alien failed to establish
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changed or extraordinary circumstances excusing the late filing
of the asylum application. Gomis v. Holder, 571 F.3d 353, 358-
59 (4th Cir. 2009) (“We join the majority of courts who have
reached this issue and hold that we lack jurisdiction to review
the immigration judge’s discretionary determination, as affirmed
by the BIA, that Gomis had not demonstrated changed or
extraordinary circumstances to excuse her untimely filing.”).
Although 8 U.S.C. § 1252(a)(2)(D) (2006) provides that
nothing in § 1252(a)(2)(B), (C), “or in any other provision of
this Act . . . which limits or eliminates judicial review, shall
be construed as precluding review of constitutional claims or
questions of law,” the question of whether the Petitioners
timely filed their asylum application is a question of fact, and
therefore is not affected by § 1252(a)(2)(D).
We conclude that the Petitioners’ claim that they were
denied due process in this instance on the basis that the
immigration judge determined that the applications were untimely
before a hearing taking evidence is without merit. The record
clearly shows that the immigration judge heard evidence on this
issue and rendered a decision that was supported by the
evidence. Accordingly, having disposed of the Petitioners’ due
process claim, this court does not have jurisdiction to review
the factual finding that the Petitioners failed to show changed
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country conditions or extraordinary circumstances, and we
dismiss in part the petition for review.
An alien who has filed an untimely asylum application
is still potentially eligible for the relief of withholding of
removal. To establish eligibility for withholding of removal,
an alien must show a clear probability that, if she was removed
to her native country, her “life or freedom would be threatened”
on a protected ground. 8 U.S.C. § 1231(b)(3)(A) (2006); see
Camara v. Ashcroft, 378 F.3d 361, 370 (4th Cir. 2004). A “clear
probability” means that it is more likely than not that the
alien would be subject to persecution. INS v. Stevic, 467 U.S.
407, 429-30 (1984). If the applicant establishes past
persecution, it is presumed that her life or freedom would be
threatened on account of a protected ground. 8 C.F.R.
§ 1208.16(b)(1) (2012). A determination regarding eligibility
for withholding of removal is conclusive if supported by
substantial evidence on the record considered as a whole.
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
Persecution is an “extreme concept” and may include
actions less severe than threats to life or freedom but must
rise above mere harassment. Qiao Hua Li v. Gonzales, 405 F.3d
171, 177 (4th Cir. 2005). “A key difference between persecution
and less-severe mistreatment is that the former is ‘systematic’
while the latter consists of isolated incidents.” Baharon v.
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Holder, 588 F.3d 228, 232 (4th Cir. 2009). The Board is
instructed to look at all incidents in the aggregate, including
violence or threats to family members, to determine if there is
past persecution, rather than looking at each incident in
isolation. Id.The Petitioners claim that they suffered past
persecution. They further claim that even if they did not show
past persecution, they did show a clear probability of
persecution if they returned to India based on a pattern or
practice of persecuting Christians. To succeed on a pattern or
practice claim, the Petitioners must show that there is a
pattern or practice of persecution of persons similarly situated
to them and that it is more likely than not that their life and
freedom would be threatened upon their return because they are
members of the group. See 8 C.F.R. § 208.16(b)(2)(i) (2012).
The Petitioners must show that the persecution is “thorough or
systemic.” Yong Hao Chen v. INS, 195 F.3d 198, 203 (4th Cir.
1999).
We have reviewed the record and conclude that
substantial evidence supports the finding that the Petitioners
did not establish that they were the victims of past persecution
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or that there is a pattern or practice of persecuting Christians
in India. *
The Petitioners also claim that they were eligible for
relief under the CAT. To qualify for protection under the CAT,
a petitioner bears the burden of showing that “it is more likely
than not that he or she would be tortured if removed to the
proposed country of removal.” 8 C.F.R. § 1208.16(c)(2) (2012).
To state a prima facie case for relief under the CAT, the
Petitioners must show that they will be subject to “severe pain
or suffering, whether physical or mental . . . by or at the
instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.” 8
C.F.R. § 1208.18(a)(1) (2012); see Saintha v. Mukasey, 516 F.3d
243, 246 & n.2 (4th Cir. 2008). “A public official acquiesces
to torture if, ‘prior to the activity constituting torture, [the
official] ha[s] awareness of such activity and thereafter
breach[es] his or her legal responsibility to intervene to
prevent such activity.’” Lizama v. Holder, 629 F.3d 440, 449
(4th Cir. 2011) (quoting 8 C.F.R. § 1208.18(a)(7) (2012)).
*
In their brief, the Petitioners argue that in the absence
of past persecution, they nonetheless established a well founded
fear of persecution necessary to show eligibility for asylum.
This argument is moot in light of the fact that this court does
not have jurisdiction to review the denial of asylum.
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We conclude that substantial evidence supports the
finding that it is not more likely than not that the Petitioners
face torture by or at the acquiescence of the Indian public
officials. We recognize that the record contains evidence of
numerous incidents of harassment, persecution and even torture
of Christians, particularly pastors, ministers and nuns. We
cannot conclude, however, that the record compels a finding that
government officials caused or breached their responsibility to
intervene to prevent such activity.
The Petitioners also claim they were denied due
process because the immigration judge (1) consolidated their
cases at their request despite indicating a lack of time to hear
all the cases at once; (2) decided that the asylum applications
were untimely before hearing evidence; and (3) decided that the
Petitioners did not qualify for CAT relief before hearing the
evidence. We have reviewed the record and conclude that the
Petitioners were not denied due process. It is clear from the
record that the immigration judge gave the Petitioners all the
time they needed in order to present their case. It is further
clear that the immigration judge made relevant findings of fact
only after hearing the evidence offered in support of the
Petitioners’ claims.
Accordingly, we dismiss in part and deny in part the
petition for review. We dispense with oral argument because the
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facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
PETITION DISMISSED IN PART
AND DENIED IN PART
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