Daya Bathula v. Eric Holder, Jr.

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 11-3622 & 12-2596
D AYA D INKAR B ATHULA, et al.,
Petitioners,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petitions for Review of Orders
of the Board of Immigration Appeals.
A098-516-459, A098-696-572
A RGUED F EBRUARY 12, 2013—D ECIDED JULY 25, 2013
Before R IPPLE and T INDER, Circuit Judges, and Z AGEL,
District Judge.Œ
R IPPLE, Circuit Judge. Daya Dinkar Bathula and her
husband, Bathula Dinkar Christopher Reddy, citizens
of India, applied for asylum in separate affirmative ap-
plications before the Asylum Office. They claimed that
Œ
The Honorable James B. Zagel, of the Northern District of
Illinois, sitting by designation.
2 Nos. 11-3622 & 12-2596
their family had been subjected to persecution at the
hands of a local criminal group after Mr. Reddy testified
against certain of its members on trial for murder. The
asylum applications were denied by the Department of
Homeland Security (“DHS”). In removal proceedings,
they together renewed their request for asylum and
alternatively requested withholding of removal and
relief under the Convention Against Torture (“CAT”).
The immigration judge (“IJ”) denied relief and ordered
them removed to India, and the Board of Immigration
Appeals (“BIA” or “Board”) adopted and affirmed the IJ’s
decision. Thereafter, they sought reopening before the
Board on the basis of ineffective assistance of counsel,
and the Board again denied relief. They now petition for
review of both the initial final order of removal of the
Board and the order denying reopening. For the reasons
set forth in this opinion, we deny their petitions.
I
BACKGROUND
A. Facts
Mr. Reddy and Ms. Bathula are citizens of India and
former residents of the town of Madhapur in the state
of Andhra Pradesh. They have two adult children, a son
and a daughter. In India, Ms. Bathula was a trained
preschool teacher and worked in the home; Mr. Reddy
studied law, worked in real estate and, beginning in
roughly 1991, became active in the local politics of a
regional party, the Telugu Desam Party (“TDP”).
Mr. Reddy rose through the local ranks of the TDP, eventu-
Nos. 11-3622 & 12-2596 3
ally attaining the position of a “legal cell general secre-
tary.” 1 His party work occurred on a daily basis, without
compensation, and totaled a few hours a week, while
his real estate business provided his living. 2 His posi-
tion afforded him a degree of influence over public mat-
ters. Because of his position, he also sometimes at-
tempted to mediate private disputes as a representative
of the TDP.
A “land mafia” had been active in Mr. Reddy’s area
of the country since the 1990s.3 According to Mr. Reddy’s
description, the land mafia illegally “grab[s]” public land
to sell on the private market.4 Their precise workings
are not clear from the record, but it is clear that they
use illegal means to acquire land, sometimes with the
complicity of government officials. They also capitalize
on the inefficiencies of the Indian judicial system,
knowing that any challenge to particular land actions
requires a complainant to institute a civil action that is
likely to languish over some period of years, even if it
would eventually be resolved against them.5 By the
early 2000s, the land mafia operating in Mr. Reddy’s
1
A.R. at 386. All record citations in this opinion are to the
Administrative Record filed in case 12-2596.
2
Id. at 387, 545.
3
Id. at 391.
4
See id. at 391-92. In the documents filed with the motion to
reopen, Mr. Reddy described them principally as “squatting” on
vacant land. Id. at 109.
5
See id. at 392.
4 Nos. 11-3622 & 12-2596
town consisted of twenty to thirty individuals, including
a man named Arjun, who was also a TDP official.
Allah Baksh,6 a neighbor of Mr. Reddy’s, began com-
plaining that the land mafia had constructed, on a public
road, a shop that partially blocked the entrance to
Baksh’s home. He initiated legal proceedings against
Arjun, and Mr. Reddy unsuccessfully attempted to arbi-
trate the dispute on behalf of the TDP. Baksh eventually
obtained an order to demolish the shop Arjun had
built, and, on January 28, 2002, when municipal
officials came to accomplish the demolition, several
hundred people were watching. Baksh walked out of a
store near his home, and Arjun and his men pursued
him. Mr. Reddy and dozens of others witnessed Arjun
and his companions murder Baksh using construc-
tion stones.
Mr. Reddy had reservations about testifying in the
ensuing legal proceedings. Nevertheless, he and more
than twenty other individuals ultimately agreed to co-
operate with the investigation and to testify against
Arjun and the mafia. Mr. Reddy claims that he was moti-
vated by a desire to take a firm stance on crime. Prior to
the trial, he was interviewed by a television station re-
garding the murder, and the evening report made his
name and face public. Mr. Reddy soon began receiving
threats: He received anonymous calls roughly twice a
6
Mr. Baksh’s name is transcribed inconsistently in the record.
We have used the form employed by the IJ’s opinion. See, e.g.,
id. at 331.
Nos. 11-3622 & 12-2596 5
week telling him that he was “finished”;7 twice rocks
were thrown into his home compound; and people
twice knocked on his door in the middle of the night
and ran. He made complaints to the police about the
threats. The land mafia also attempted to bribe him to
persuade Baksh’s widow to accept a compromise
and drop the criminal case. He declined and reported
the pressure to the authorities.
Ms. Bathula also was targeted. She was trailed by
Arjun’s associates five or six times and ultimately elected
to remain in the house for safety.
In February 2003, Mr. Reddy testified against Arjun
and his cohort. He was the only original witness who
had not been persuaded by bribe or threat to recant. The
men were convicted and sentenced to life imprison-
ment, but have since been released.
Following his testimony, the pressure on Mr. Reddy
and his family continued. He was run off the road by
another vehicle that deliberately had crashed into him,
and he was stopped on the street and again threatened
that he would be “finished.”
Throughout this period, Mr. Reddy had been given
significant police protection from the threat of harm
by Arjun and his associates. At certain times—the week
after trial, holidays, furlough periods for prisoners,
crowded festivals—police would remain at his home
around the clock. Mr. Reddy testified that, “[a]s a TDP
member, [he] had a little leverage in the police depart-
7
Id. at 431-32.
6 Nos. 11-3622 & 12-2596
ment,” and so the police “would help [him] if [he]
ha[d] some trouble.” 8
In May 2004, Ms. Bathula came to the United States for
a wedding, intending to stay three months. At about the
same time, national elections were held, and the
Congress Party, which is not allied with the TDP, took
power. The new Congress government removed the
former police official that had authorized the assistance
to Mr. Reddy and his family, and Mr. Reddy felt that
the family’s safety could not be assured. He therefore
instructed Ms. Bathula to remain in the United States.
Mr. Reddy traveled to the United States in June of
2006 on a visitor’s visa.
B. Removal Proceedings
1. Proceedings Before the IJ
In November 2004, a few weeks before the expiration
of her visitor’s visa, Ms. Bathula filed an asylum applica-
tion based on the events surrounding Baksh’s
murder and the trial at which Mr. Reddy had testified.
Ms. Bathula’s application was denied, and she was
placed in removal proceedings.
In June 2006, Mr. Reddy was admitted to the United
States as a visitor. Five months later, he filed his own
asylum application, on which he included Ms. Bathula
as a derivative. In early 2007, his application also was
denied, and he was placed in removal proceedings.
8
Id. at 405.
Nos. 11-3622 & 12-2596 7
Before the IJ, the separate proceedings involving
Ms. Bathula and Mr. Reddy were consolidated. Ms. Bathula
and Mr. Reddy filed an updated application requesting
asylum, withholding of removal and CAT relief. In
two hearings held two-and-one-half years apart, the
petitioners presented evidence in support of their claims.
Ms. Bathula and Mr. Reddy were the only witnesses.
In addition to the facts set forth above, the petition-
ers’ written submissions and testimony also addressed
several other subjects. Mr. Reddy claimed that during
the two years following Ms. Bathula’s entry into the
United States, he remained in India in hiding, moving
among relatives’ houses and staying away from his own
home. He admitted that he was not harassed in these
locations. He stated that he was forced to leave one rela-
tive’s home in the state of Goa upon learning of a plot
by the land mafia to find him. The Reddy home
was vacant during this period, and in 2005, when their
daughter briefly returned, she alerted the police that it
had been broken into, jewelry and valuables stolen, and
a rod-like weapon left on the bed. Ms. Bathula also
testified about an incident involving their daughter in
which men associated with the land mafia unsuccessfully
attempted to kidnap her;9 Ms. Bathula’s testimony re-
9
As the daughter’s own affidavit submitted with the motion to
reopen describes it, on a return home from school one day she
saw a man who she knew to be associated with the land
mafia. He opened the trunk and came towards her with his
arms out, which she interpreted as an attempt to take her.
(continued...)
8 Nos. 11-3622 & 12-2596
garding the details, however, was somewhat vague and
inconsistent, especially as to the date. The family stated
that although the son safely attended flight school,
the daughter was unable to continue her schooling and
was forced to move every few months for her safety.
Ten months after the close of the proceedings, the
IJ issued a lengthy written decision denying all relief
and ordering removal.
The IJ credited the bulk of the petitioners’ testimony
regarding the existence of the land mafia, Mr. Reddy’s
role in opposing its members at the murder trial and the
actions taken by the land mafia against the family in
response. The IJ, however, found the petitioners’ testi-
mony not credible on several points: First, the IJ did not
credit Mr. Reddy’s testimony about his movements in
the two-year period after the trial and before he
departed for the United States, calling it “vague and
unpersuasive” and “not sufficiently detailed to be credi-
ble.” 10 Second, the IJ concluded that Ms. Bathula’s account
of the attempted kidnapping of their daughter
was “conflicting and uncorroborated.”1 1 Specifically, the
IJ observed that the written submissions had indicated
that the incident occurred in June 2004, when the
Congress party was in power and Ms. Bathula was in
9
(...continued)
She was on a public street and screamed out, and her alleged
kidnapper fled. Id. at 139.
10
Id. at 337, 338.
11
Id. at 338.
Nos. 11-3622 & 12-2596 9
the United States, but her oral testimony indicated that
it had occurred in 2003, when the TDP was in power. In
his view, “the date of the attempted kidnapping . . . [wa]s
so unclear as to call into question whether it occurred
at all.” 12 Finally, although the IJ generally accepted the
testimony regarding the land mafia’s local activities
and found it corroborated by the documentary evidence
in the record, he did not believe that the evidence sup-
ported Mr. Reddy’s assertions that the local network
had nationwide connections that would have en-
dangered him anywhere in India.
Turning to the legal basis for the claim, the IJ found
(1) that the petitioners had not established that any
harms they suffered were “on account of” a protected
ground (the “nexus” requirement), (2) that the harms
suffered in the past did not rise to the level of persecution
and (3) that the possibility of internal relocation pre-
cluded a finding of a well-founded fear of future persecu-
tion.
Regarding nexus to a protected ground, the IJ first
expressed doubt that either social group identified by
the petitioners, “active, law-supporting citizens” or “those
willing to participate, despite personal risk, in the orderly
administration of justice against criminal elements,” were
the basis for the harms that Mr. Reddy and his family
12
Id. at 344.
10 Nos. 11-3622 & 12-2596
suffered.13 The IJ noted that the record was devoid of
any evidence of widespread harm to the large group of
law-supporting citizens who never had interfered
with the land mafia. Further, he found that, despite
Mr. Reddy’s opposition to the land mafia’s activities,
Arjun and his cohort did not seek to harm him until he
testified against them; in the IJ’s view, therefore, the
land mafia’s motivation was retribution for the testimony.
Citing Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009), and
Wang v. Gonzales, 445 F.3d 993 (7th Cir. 2006), the IJ con-
cluded that such a motivation was best characterized
as personal animus rather than membership in any iden-
tifiable social group necessary to establish asylum eligi-
bility.
Nor, in the IJ’s view, had the petitioners presented
a viable political opinion claim. The petitioners acknowl-
edged that TDP membership had not motivated the
land mafia, but they claimed it was the reason that the
police had denied protection to the family following the
2004 elections and the change in government. The IJ
disagreed. He noted Mr. Reddy’s testimony that, in the
period before and immediately following the trial, when
the TDP was in power, his TDP membership had
afforded him additional access to law enforcement re-
sources, including twenty-four hour protection at his
home for periods of time. In his view, the fact that, follow-
13
Id. at 341. The IJ presumed that this group encompassed
Baksh as well, because he had challenged the land mafia in
civil courts.
Nos. 11-3622 & 12-2596 11
ing the election, the family was no longer provided
with protective law enforcement presence at their home
was better characterized as “a lack of special treatment”
previously provided on the basis of TDP member-
ship rather “than a [new] policy of discrimination” against
TDP members after 2004.1 4
Regarding whether the family had suffered past persecu-
tion, the IJ concluded that the record fell short;
instead, the evidence demonstrated primarily a series of
unfulfilled threats and a pattern of harassment and in-
timidation. Although there had been testimony re-
garding “more serious and concrete threats,” including
the attempted kidnapping, the IJ already had deter-
mined that the testimony was not credible on these
points.15 With no threat carried out, and no threat “so
immediate and menacing” as to itself qualify as persecu-
tion, the harms “in the aggregate” did not rise to the
level of persecution.1 6
Furthermore, the IJ found no evidence that the govern-
ment was unable or unwilling to protect the fam-
ily. Although the significant protection they had received
from the TDP-appointed law enforcement officials had
ended, the IJ concluded that there were many reasons
such a decision could have been made by an unbiased
officer. He noted that the change of government had
14
Id. at 342.
15
Id. at 344.
16
Id.
12 Nos. 11-3622 & 12-2596
occurred a year after the trial and, in the interim, the
perpetrators had been sentenced and imprisoned. The IJ
also concluded that the prosecution of Baksh’s murderers
demonstrated that “[t]he government ha[d] proven capable
of protecting the [petitioners].” 1 7 The IJ already had
rejected Mr. Reddy’s testimony regarding his two years in
hiding, but separately found that, because the evidence
regarding the years following the trial was “generalized”
and included “very few details regarding his life interac-
tions with the local police, or his life as a fugitive,” it was
“impossible . . . to conclude that the [Indian] government
became completely helpless or apathetic to the [petition-
ers’] plight.” 18 The IJ also suggested that denial of police
protection services at the family home was not itself a
sufficient harm to amount to persecution.
Finally, on the issue of a well-founded fear of future
persecution, the IJ held that the family had not demon-
strated adequately an inability to relocate within India.
The IJ concluded that the particular land mafia was a
local one. It operated in a specific town and was con-
trolled principally by the Eranolla family, of which
Arjun was a member. Mr. Reddy’s claims to the contrary
were, in the IJ’s view, speculative and lacked “objective
and reliable” support in the evidentiary record.1 9 The
record did not support the assertion that Mr. Reddy
would have to remain effectively in hiding to have a
17
Id.
18
Id.
19
Id. at 346.
Nos. 11-3622 & 12-2596 13
measure of safety in India. Indeed, the IJ specifically
noted that Mr. Reddy’s son had lived in New Delhi
without any difficulty.
Having concluded that the petitioners did not meet
the burden of establishing eligibility for asylum, the IJ
also denied relief under the higher standards of proof
applicable to withholding of removal. The IJ also denied
the petitioners’ CAT claim without considering whether
the record supported a likelihood of torture, instead
concluding again that the possibility of internal reloca-
tion barred such relief.
2. Appeal to the BIA
The petitioners, still represented by their trial attorney,
appealed the denial of asylum and withholding to the
Board, but abandoned their CAT claim. The Board
adopted and affirmed the IJ’s decision ordering removal,
but added as well its own analysis.
The Board first rejected the petitioners’ claim that the
IJ had disregarded the evidence or had failed to
aggregate the harms that both petitioners suffered. It also
agreed with the IJ’s determination that the harm did not
rise to the level of persecution. On the subject of nexus,
the Board described the petitioners’ situation as “unfortu-
nate,” but agreed with the IJ’s conclusions that the peti-
tioners’ harms were based on “a purely personal mat-
ter” that was “not tethered to a statutorily protected
14 Nos. 11-3622 & 12-2596
category.” 20 The Board further agreed that Mr. Reddy
was not harmed on the basis of his political opinion
when the police officials appointed by the new Congress
government declined to extend him the same “special
privileges” that had been provided under the previous
administration on account of Mr. Reddy’s “political
connections.” 21 Finally, the Board noted without discus-
sion that the petitioners “failed to meet their burden
of establishing a well-founded fear of future persecution
by showing a reasonable possibility of persecution that
cannot be avoided by reasonably relocating within[]
their home country given the local nature of the ‘land
mafia’ criminals.” 22
In summary, the Board concluded that the IJ had
“correctly determined that the [petitioners] fear a small
number of criminals, that their account indicates that the
police are capable of protecting the public, and that the
[petitioners] may relocate to avoid any future problems.” 2 3
Accordingly, for the reasons identified in the Board’s
opinion “and those additional and alternative bases
20
Id. at 258. The Board assumed without deciding that
the social groups proffered by the petitioners were cognizable
under the Immigration and Nationality Act, but concluded
that the harms that the family had suffered were not “on
account of” membership in the identified groups. Id.
21
Id.
22
Id.
23
Id.
Nos. 11-3622 & 12-2596 15
and reasons discussed by the Immigration Judge,” the
Board adopted and affirmed the order of removal. 2 4
3. Motion to Reopen Proceedings Before the Board
The petitioners retained new counsel and moved to
reopen their proceedings with the Board. They contended
that their prior attorney had provided ineffective repre-
sentation, and, as a result, they were denied due process
of law. They addressed the requirements in the Board’s
decision setting forth the standards for ineffective assis-
tance claims, Matter of Lozada, 19 I. & N. Dec. 637 (BIA
1988). The petitioners contended that two of the prior
attorney’s decisions were so egregiously wrong as to
demonstrate ineffective assistance. First, they claimed
that, although their daughter was available in the United
States to testify at the time of the second hearing, their
attorney had not called her as an additional witness. The
failure, they contended, was consequential: The IJ had
refused to credit Ms. Bathula’s account of arguably the
most serious incident the petitioners had described, the
attempted kidnapping of their daughter. The IJ rejected
the testimony because Ms. Bathula’s uncorroborated
narrative had not given a consistent account of when it
had occurred. Second, they claimed that their attorney
was ineffective because he had not pursued the CAT
claim on appeal. The petitioners noted that the IJ and
Board had rejected their claims not only because they
24
Id. at 259.
16 Nos. 11-3622 & 12-2596
had failed to demonstrate past persecution or a well-
founded fear of future persecution, but also because
any harms that they had suffered did not have the nexus
to a protected ground required by the statute for
asylum and withholding of removal. The petitioners
observed that the statute requires no nexus to a protected
ground for a petitioner to succeed under the CAT, and,
therefore, their attorney’s decision to abandon the CAT
claim prejudiced their proceedings before the Board. In
their view, the CAT claim, because of the absence of a
nexus requirement, provided a stronger avenue for relief.
Along with the motion to reopen, they submitted an
affidavit from their daughter in which she described the
attempted kidnapping, as well as an incident in which
her scooter was rammed from behind and an incident
in which she elected to remain safely inside a college
building after believing she saw the same car involved in
the attempted kidnapping outside waiting for her.2 5
25
The filings also included the petitioners’ prior attorney’s
response to the disciplinary complaint that the petitioners
had filed against him. He claimed that Mr. Reddy was
adamant that his daughter should not testify or otherwise be
involved in the proceedings, and that, in any event, he
believed that, in the limited time he had to present the peti-
tioners’ case to the IJ, the petitioners’ own testimony was of
greater significance. In his words, he made a tactical choice
not to appeal the CAT claim, because he believed it was
weaker; although a nexus to a protected ground was not
required to succeed, the petitioners would have to have
(continued...)
Nos. 11-3622 & 12-2596 17
The Board denied the motion to reopen. It noted that the
claim had been denied in part because the petitioners
had failed to establish the requisite nexus, and the daugh-
ter’s testimony would not have corrected that failing.
It also ruled that the former attorney’s “tactical decision”
not to appeal the CAT claim did not cause prejudice,
because it did not address the failure of the petitioners
to establish that internal relocation was not possible.2 6
Ms. Bathula and Mr. Reddy timely petitioned for
review of each decision.
II
DISCUSSION
A. The Initial Order of Removal
1. Standards on Review
Where, as here, “the BIA’s decision adopts and affirms
the IJ’s conclusion as well as provid[es] its own analysis,
25
(...continued)
shown a higher level of harm, which the IJ already had found
lacking under the lower burden applicable to asylum. The
petitioners submitted a supplemental affidavit disputing
their attorney’s account of the decision not to have their daugh-
ter testify.
26
Id. at 4. In a footnote, the Board took note of the attorney’s
response, which indicated that the decision not to appeal the
CAT claim was based on the “lack[ of] solid evidence or a
solid argument regarding both internal relocation and govern-
ment acquiescence for purposes of CAT relief.” Id.
18 Nos. 11-3622 & 12-2596
we review both decisions.” Familia Rosario v. Holder, 655
F.3d 739, 743 (7th Cir. 2011). We review the Board’s
decision denying asylum and withholding of removal
for substantial evidence. Vahora v. Holder, 626 F.3d 907,
912 (7th Cir. 2010). “Our standard of review for legal
questions is de novo; [h]owever, we defer to the Board’s
factual findings, reversing the Board only if the record
lacks substantial evidence to support its factual conclu-
sions.” Id. (alteration in original) (internal quotation
marks omitted). “Under the substantial evidence
standard, the agency’s determination will stand if it is
supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Id. (internal
quotation marks omitted). Reversal is appropriate only
where, reviewing the record as a whole, “a reasonable
factfinder would have to” reach a contrary conclusion.
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
In order to obtain asylum, an alien must establish that
he meets the definition of a refugee set forth in 8 U.S.C.
§ 1101(a)(42)(A), specifically, that he “is unable or unwill-
ing to return to, and is unable or unwilling to avail
himself . . . of the protection of, [his home] country
because of persecution or a well-founded fear of persecu-
tion on account of race, religion, nationality, membership
in a particular social group, or political opinion.”
To establish eligibility for withholding of removal,
an alien must demonstrate a “clear probability,” Mustafa
v. Holder, 707 F.3d 743, 751 (7th Cir. 2013) (internal quota-
tion marks omitted), that his “life or freedom would be
threatened in that country because of the alien’s race,
Nos. 11-3622 & 12-2596 19
religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A).
An alien’s proof of eligibility for asylum or withholding
may follow one of two paths, or, in many cases, both:
He must show that he has suffered past persecution or
that he has a well-founded fear of future persecution.2 7
If the alien can establish that he has suffered past persecu-
tion on the basis of a protected ground, the existence of a
well-founded fear is presumed. 8 C.F.R. § 1208.13(b)(1)
(asylum); id. § 1208.16(b)(1) (withholding). The Govern-
ment can rebut the presumption by showing either a
fundamental change in conditions in the applicant’s
home country or that, “under all the circumstances,
it would be reasonable to expect the applicant to”
relocate “to another part of the applicant’s country.” Id.
§ 1208.13(b)(1)(i) (asylum); see also id. § 1208.16(b)(1)(i)
(withholding). “In cases in which the applicant has not
established past persecution,” that is, where the alien
proceeds by claiming exclusively a well-founded fear of
future persecution, however, “the applicant shall bear
the burden of establishing that it would not be reasonable
for him . . . to relocate, unless the persecution is by a
go ve rn m en t o r is governm ent-sponsored.” Id.
§ 1208.13(b)(3)(i) (emphasis added) (asylum); see also id.
§ 1208.16(b)(2) (withholding).
Mr. Reddy and Ms. Bathula attempted to estab-
lish past persecution and a well-founded fear of future
27
A well-founded fear is one that is both “subjectively genuine
and objectively reasonable.” Bolante v. Mukasey, 539 F.3d 790,
794 (7th Cir. 2008).
20 Nos. 11-3622 & 12-2596
persecution. Their claims were denied by the agency
on multiple grounds. First, the IJ and Board found that
the harms the petitioners experienced did not rise to
the level of past persecution. Second, the IJ and Board
found that, even if the harms did rise to the level of past
persecution, the petitioners had not identified a nexus to
a protected ground under the statute, i.e., that they
had been persecuted, or would be persecuted on account
of race, religion, nationality, membership in a particular
social group, or political opinion. Finally, because
the agency concluded that there had been no showing
of past persecution, the petitioners could succeed only
by demonstrating independently a well-founded fear of
future persecution and that the risk of that persecution
was present on a country-wide basis such that internal
relocation was not reasonable. The IJ and Board deter-
mined that the petitioners had not carried this burden.
The petitioners claim that each of the agency’s deter-
minations is not supported by substantial evidence.
We address their arguments in turn. However, because
we conclude that the agency’s conclusions regarding a
lack of past persecution and a lack of a nexus under the
statute are supported by substantial evidence, we need
not and do not consider whether the record establishes
that internal relocation would have been unreasonable
or that the Indian government was involved in or acqui-
esced in the land mafia’s treatment of the petitioners.
2. Past Persecution
The IJ credited the petitioners’ testimony that, in the
months leading up to and following Mr. Reddy’s testi-
Nos. 11-3622 & 12-2596 21
mony at the murder trial, the family received calls
roughly twice a week threatening to “finish” Mr. Reddy,
the compound was twice attacked by someone throwing
rocks and twice individuals approached the door in
the middle of the night and then fled. In addition,
Mr. Reddy was approached on the street by a land mafia
associate and told that he would be “finished.” On
another occasion, his car was run off the road by
someone he identified as associated with the land mafia.
Ms. Bathula and their daughter also were trailed five or
six times by a relative of Arjun, and Ms. Bathula felt it
safer if she remained in the home.
In reaching the conclusion that these harms, considered
in the aggregate, did not rise to the level of persecution,
the IJ began by noting the general rule that threats are
insufficient to demonstrate past persecution, citing
Bejko v. Gonzales, 468 F.3d 482, 486 (7th Cir. 2006). He
characterized the harm suffered by the family as “a series
of threats and harassment.” 2 8 The petitioners take issue
with this characterization of the record as an understate-
ment of their treatment by the land mafia. They submit
that the incidents described rose above threats to actual
harm, and that, in any event, even if the record could
be characterized as showing threats alone, those threats
were of sufficient severity to constitute persecution with-
out actual harm.
We begin by noting that neither the IJ nor the BIA
employed a “threats-alone” approach to the petitioners’
28
A.R. at 343.
22 Nos. 11-3622 & 12-2596
evidence. Moreover, the language of the IJ’s opinion,
noting a pattern of “threats and harassment” echoes pre-
cisely the language we often employ to distinguish be-
tween those harms that rise to the level of past persecu-
tion and those that do not. See, e.g., Chun Hua Zheng v.
Holder, 666 F.3d 1064, 1067 (7th Cir. 2012) (describing
beating as conduct that “crosses the line that dis-
tinguishes persecution from mere harassment” (emphasis
added)). In any event, our task is to assess whether the
agency’s ultimate conclusion that the record does not
establish past persecution is supported by substantial
evidence. See Elias-Zacarias, 502 U.S. at 481. We conclude
that it is.
In considering the line between conduct that is best
characterized as harassment and conduct that is truly
persecutory, we recently stated:
Harassment involves targeting members of a
specified group for adverse treatment, but without
the application of significant physical force.
Had [the alleged persecutors,] furious at [the peti-
tioners] being soft on Albanians[,] followed his
taxi (he was a taxicab driver in Macedonia) and
ticketed him whenever he exceeded the speed
limit by one mile per hour, that would be an
example of harassment. A common form of sexual
harassment is pestering a subordinate for a date or
making lewd comments on her appearance, or
perhaps hugging her, which is physical but gener-
ally not violent.
Persecution involves, we suggest, the use of
significant physical force against a person’s body,
Nos. 11-3622 & 12-2596 23
or the infliction of comparable physical harm
without direct application of force (locking a
person in a cell and starving him would be an
example), or nonphysical harm of equal grav-
ity—that last qualification is important because
refusing to allow a person to practice his religion
is a common form of persecution even though
the only harm it causes is psychological. Another
example of persecution that does not involve
actual physical contact is a credible threat to
inflict grave physical harm, as in pointing a gun
at a person’s head and pulling the trigger but
unbeknownst to the victim the gun is not loaded.
The line between harassment and persecution is
the line between the nasty and the barbaric, or
alternatively between wishing you were living
in another country and being so desperate that
you flee without any assurance of being given
refuge in any other country.
Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011)
(emphasis in original).
Here, the cases that the petitioners cite in support of
their assertion that the record establishes past persecu-
tion speak of harms on a wholly different order than
what the petitioners themselves were forced to endure.
See Pet’rs’ Br. 12-13 (collecting cases). Although the peti-
tioners rightly assert that we have held that credible
threats of imminent death or serious physical harm can
themselves amount to past persecution, Boykov v. INS,
109 F.3d 413, 416 (7th Cir. 1997) (acknowledging that
24 Nos. 11-3622 & 12-2596
threats “of a most immediate and menacing nature
might, in some circumstances, constitute past persecu-
tion”), we have done so under circumstances much
more severe than those presented here. The character of
the threats and the accompanying menacing behavior in
the present case, even when we account for the fact
that they were carried out by a group with the ability
and will to physically harm or kill its opponents, are
simply not such as would require the agency to
conclude that they amount to persecution. In particular,
although the family was not under constant protection
and had numerous personal encounters with members
of the land mafia, no serious harm ever befell them,
despite the fact that the group was willing to murder
another opponent in plain sight of a crowd on a public
street. Cf. Vahora, 626 F.3d 907 (holding that a teenager
targeted after he witnessed a murder, who was chased
from his home by the perpetrators, who was repeatedly
and menacingly sought after his departure, and whose
grandparents’ home was burned, had not established
past persecution).
Accordingly, the agency’s decision that the petitioners
did not suffer past persecution is supported by substantial
evidence, and we shall not disturb it.
3. Nexus to a Protected Ground
Even if an alien satisfies the burden of establishing the
requisite fear of persecution, he does not automatically
obtain relief: “He must also show that the feared persecu-
tion would be on account of his race, religion, nationality,
Nos. 11-3622 & 12-2596 25
membership in a particular social group, or political
opinion.” Matter of Mogharrabi, 19 I. & N. Dec. 439, 447
(BIA 1987).
Before the agency, the petitioners put forward claims
related to Mr. Reddy’s political opinion as an official in
the TDP, as well as membership in two possible social
groups: “active, law-supporting citizens” and “those
willing to participate in the legal process, despite great
personal risk, to ensure justice against criminal elements.” 2 9
The Board, however, viewed any harm that the peti-
tioners suffered as the result of a “personal dispute” with
the land mafia “that is not tethered to a statutorily pro-
tected category.” 30 The Board further stated that “even
assuming, arguendo, that the [petitioners’] proposed
social groups are sufficient under the Act, they have
failed to establish that the past or feared harm in India
is on account of their membership in such groups, or on
account of any other protected ground.” 3 1
We need not examine the sufficiency of the petitioners’
proffered social groups under the statute because we
conclude that the Board’s decision that the petitioners
failed to establish that any harm befell them on account
of their membership in either group is supported by
substantial evidence. As the Board noted, the record is
devoid of evidence that “active, law-supporting citizens,”
29
A.R. at 258 n.2
30
A.R. at 258.
31
Id. (second emphasis added).
26 Nos. 11-3622 & 12-2596
generally, are targeted for persecution in India.
Although the more specific group of “those willing to
participate in the legal process, despite great personal risk,
to ensure justice against criminal elements” presents a
closer question, it does so only modestly. As the Board
points out, the record evidence does not suggest that
Mr. Reddy was targeted because he was willing, or, in
fact, did “participate in the legal process.” There is no
suggestion in the record that the land mafia sought to
destroy the legal process generally, or to attack those
who supported it. Mr. Reddy’s filings clearly demon-
strate that he was the victim of intimidation and then
retaliation for his specific testimony in a specific case
against the land mafia.3 2
32
Before this court, the petitioners essentially admit that this
much narrower issue was the land mafia’s motivation, here
describing their social group as “people willing to be witnesses
to ensure prosecution of crimes the land mafia commits.” Pet’rs’
Br. 18. The petitioners claim that this makes their case compara-
ble to Sepulveda v. Gonzales, 464 F.3d 770, 772 (7th Cir. 2006), in
which we remanded a case for further proceedings upon
concluding that former prosecutors targeted by an insurgent
group could constitute a social group. Even if this formula-
tion had been preserved by presenting it directly to the Board,
cf. A.R. at 262-63 (describing the proffered social groups in
the appeal to the Board without this formulation), we are not
persuaded that Sepulveda, rather than Pavlyk v. Gonzales, 469
F.3d 1082, 1088-89 (7th Cir. 2006), is the closest analog in
our cases.
(continued...)
Nos. 11-3622 & 12-2596 27
The Board’s conclusion that Mr. Reddy had not demon-
strated that he was harmed “on account of” his political
opinion is also supported by substantial evidence. There
is nothing in the record to support the view that the
land mafia opposed Mr. Reddy because of his TDP mem-
bership; indeed, Arjun himself also held a position of
some authority in the party. Further, to the extent that
the political opinion claim is based upon the withdrawal
of police protection, again, the Board did not err in con-
cluding that the record failed to establish that it was
32
(...continued)
In Pavlyk, we rejected a proposed social group of “uncorrupt
prosecutors” interested in “exposing government corruption.”
Id. at 1088. We noted that the petitioner had not presented
evidence of vulnerability intrinsic to the proposed group;
instead, the record suggested that “any persecution stemmed
from his conduct in [two] particular investigations and not
because of his status as a member of a group of prosecutors.”
Id. at 1088-89. The same is true of the record in this case. The
land mafia’s targeting of the petitioners was directly related
to Mr. Reddy’s testimony in the murder trial. The evidence
he has presented does not show that witnesses against the
land mafia are persecuted generally, or, indeed, that there
have been any other prosecutions and witnesses.
In any event, the petitioners have forfeited any argument
about this narrower social group formulation by failing to
present it to the agency. Further, the en banc court recently
heard argument in Cece v. Holder, No. 11-1989, on the
meaning of the statutory term “particular social group” and
related Board precedents, and we decline to wade into these
waters unnecessarily in this case.
28 Nos. 11-3622 & 12-2596
based upon Mr. Reddy’s TDP membership. Although the
change in the family’s treatment by the authorities oc-
curred following the replacement of the a local police
official by the new Congress government, the IJ and Board
both reasonably concluded that the decision not to post
officers at the family home preemptively may have had
“some other legitimate basis.” A.R. at 258; see also id. at
342 (“[T]he poorly trained and underfunded police may
have simply decided to direct scarce resources toward
other needs in the community. . . . [T]he men he testified
against were in jail. A reasonable, unbiased [police
official] may have directed resources to more urgent
needs. In fact, [Mr. Reddy] suggested that the protection
that he received before May of 2004[] was due to his
political connections.”).
On review, the petitioners contend that the agency
understated the change in treatment. In their view, the
family was denied “the ordinary protection all citizens
should be entitled to from the police,” not merely any
“special” privileges to police protection they received
during the TDP’s term in power. Pet’rs’ Br. 21. As evi-
dence, they cite the fact that, following the home
invasion, his daughter attempted to make a police
report, but when Mr. Reddy later inquired about the
status of the investigation, he was told that no report
had been made. Even if we were to conclude that this
single incident involving the response of the police to the
break-in constituted persecution, which we do not, the
petitioners simply have not put forward sufficiently
“compelling” evidence, “direct or circumstantial,” that
the police were motivated by his TDP membership. See
Nos. 11-3622 & 12-2596 29
Elias-Zacarias, 502 U.S. at 483-84. The petitioners rely
primarily on the timing of the change in treatment—that
it occurred following the change in power. Although that
is permissible evidence that could support an inference
of political motive, it is certainly not so strong as to
require the Board to have accepted it.3 3 In short, this is
simply not a case where “the factual circumstances
alone may constitute sufficient circumstantial evidence
of a persecutor’s . . . motives.” Martinez-Buendia v. Holder,
616 F.3d 711, 715 (7th Cir. 2010) (alteration in original)
(internal quotation marks omitted); cf. id. at 717 (noting
the existence of “uncontested evidence in the re-
cord” that the alleged persecuting group, the FARC,
viewed members of petitioner’s group “as political oppo-
nents”).
33
See, e.g., Bueso-Avila v. Holder, 663 F.3d 934, 938 (7th Cir. 2011)
(“The fact that some of the threats against Bueso-Avila
occurred after church group meetings does not necessarily
mean that the gang members were reacting to Bueso-Avila’s
religious beliefs[.] . . . Bueso-Avila’s testimony that . . . the gang
members persecuted him on account of these characteristics[]
is an inference based on circumstantial evidence. Now this is a
possible and legitimate inference to make. But we cannot
say that this inference is supported by circumstantial evidence
that is so compelling that no reasonable fact-finder could
fail to find that the MS-13 gang was motivated to persecute
Bueso-Avila on the basis of his religion or group member-
ship.” (internal quotation marks omitted)).
30 Nos. 11-3622 & 12-2596
B. The Motion to Reopen
In addition to their challenge to the underlying order
of removal, the petitioners claim that the Board erred in
denying their motion to reopen on the basis of ineffective
assistance of counsel. We review the decision to deny a
motion to reopen “for an abuse of discretion, upholding
it unless it was made without rational explanation, in-
explicably departed from established policies, or rested
on an impermissible basis.” Marinov v. Holder, 687 F.3d
365, 368 (7th Cir. 2012).
At the merits hearings, prior counsel did not offer the
Reddys’ daughter as a witness; following the removal
orders issued by the IJ, prior counsel also elected not
to appeal the IJ’s denial of CAT relief to the BIA. Peti-
tioners moved to reopen claiming that these decisions
demonstrated that they had received ineffective assis-
tance. The Board denied reopening upon concluding that,
even if counsel’s performance were deficient, the petition-
ers had not shown any prejudice. The petitioners, appro-
priately, do not dispute the Board’s methodology,3 4 but
contend that its prejudice determinations were erroneous.
We begin with the CAT claim. The petitioners
contend that the claim was “at least as strong as the
asylum and withholding claims” because no nexus is
34
To succeed on an ineffective assistance claim, the petitioners
must demonstrate not only that counsel’s performance was
deficient, but that they “could have succeeded on the merits”
of their claims, but for counsel’s defective performance.
El-Gazawy v. Holder, 690 F.3d 852, 860 (7th Cir. 2012).
Nos. 11-3622 & 12-2596 31
required, and that was a principal failing identified by
the agency in its denial of asylum and withholding.
Pet’rs’ Br. 11. This is not a correct statement of the
burdens applicable in a CAT case as we have identified
them: “Although the torture need not be on account of
one of the enumerated traits required for asylum claims,
the burden of proof for CAT protection is nonetheless
more stringent than the burden for establishing asylum
eligibility.” Hassan v. Holder, 571 F.3d 631, 644 (7th Cir.
2009) (emphasis added) (internal quotation marks omit-
ted). Because the asylum and withholding claims
were denied on the grounds that the petitioners failed to
establish persecution in addition to the failure to establish
a nexus, it is simply incorrect to state that the CAT
claim, which required a showing not merely of a likeli-
hood of persecution, but torture, was on stronger footing
than the other requests for relief. Sarhan v. Holder, 658
F.3d 649, 653 (7th Cir. 2011) (“Unlike the remedy of with-
holding of removal, relief under the CAT is not condi-
tioned on proof that the alien has been persecuted
because of one of the five grounds listed in the INA. On
the other hand, the need to prove ‘torture[]’ . . . sets a
high bar for relief.”).
In any event, the Board decided the prejudice issue
only on the ground that the petitioners “submitted insuffi-
cient evidence with their motion which would alter the
Immigration Judge’s finding that the [petitioners] could
32 Nos. 11-3622 & 12-2596
safely relocate into another part of India,” 3 5 and it is
this reasoning upon which the agency’s decision must
stand or fall, SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)
(noting that a court cannot affirm an agency’s inade-
quately justified decision “by substituting what it con-
siders to be a more adequate or proper basis”).
The petitioners claim that the agency committed numer-
ous errors in arriving at its relocation finding: failing to
consider Mr. Reddy’s testimony about attempted reloca-
tion, failing to balance factors against the possibility of
internal relocation under the CAT and improperly
placing the burden to establish the unreasonableness of
relocation on the petitioners.3 6
The objections, on the record before us, are without
merit. Although it is certainly correct that relocation is
not “reasonable” if it requires a petitioner to “live in
35
A.R. at 4.
36
Contrary to the petitioners’ assertions that the Board did not
“squarely discuss” relocation, Pet’rs’ Br. 15, the Board specifi-
cally held in its original order dismissing the appeal that
“[t]he Immigration Judge correctly determined that the [peti-
tioners] fear a small number of criminals, that their account
indicates that the police are capable of protecting the public,
and that the [petitioners] may relocate to avoid any future
problems.” A.R. at 258; see also id. (noting that the petitioners
“failed to meet their burden of establishing a well-founded
fear of future persecution by showing a reasonable possibility
of persecution that cannot be avoided by reasonably relocating
within[] their home country given the local nature of the
‘land mafia’ criminals”).
Nos. 11-3622 & 12-2596 33
hiding,” see, e.g., Sarhan, 658 F.3d at 661, the record does
not require the conclusion that this was Mr. Reddy’s fate.
The IJ considered Mr. Reddy’s testimony and determined
that, on the salient points, he was not credible, in part
because there was no objective evidence in the record
to support his assertion of the land mafia’s nationwide
reach. Moreover, because we already have held that the
finding of a lack of past persecution was supported by
the record, it was not error to require the petitioners to
bear the burden of proving that relocation was unrea-
sonable. See Rashiah v. Ashcroft, 388 F.3d 1126, 1132 (7th
Cir. 2004) (assuming that the burden-shifting frame-
work applies in CAT cases, holding that an IJ did not err
in holding the burden to the petitioners where she “explic-
itly found that petitioner had not presented evidence
establishing past persecution or a well-founded fear of
future persecution”); cf. Perez-Ramirez v. Holder, 648
F.3d 953, 958 (9th Cir. 2011) (shifting the burden on re-
location in a CAT claim where the IJ specifically found
that the past treatment the alien suffered constituted
torture).
The petitioners also claim that the IJ erred in failing
to consider relocation as only one piece of a broader
CAT inquiry. The regulations direct that the agency
consider “all evidence relevant to the possibility of
future torture,” and provide a non-exclusive list
including the possibility of internal relocation among
34 Nos. 11-3622 & 12-2596
other factors. See 8 C.F.R. § 1208.16(c)(3)(i)-(iv).3 7 We agree
with the petitioners that CAT claims are to be treated
under this multi-factor analysis and that the Board’s
decision in this case, brief as it is on this topic, does not
make clear that it used this approach. Nevertheless, we
must read this section of the opinion in context.
Although there is no other specific, stated finding on
CAT relief, in the context of evaluating the petitioners’
other claims, the Board already had concluded that the
past treatment that the petitioners had suffered did not
reach the level of persecution. A fair reading of the
Board’s opinion, therefore, is that the petitioners also did
not establish that they had been tortured in the past. See
37
Subsection 1208.16(c)(3) of Title 8 of the Code of Federal
Regulations provides:
(3) In assessing whether it is more likely than not that
an applicant would be tortured in the proposed country
of removal, all evidence relevant to the possibility of
future torture shall be considered, including, but
not limited to:
(i) Evidence of past torture inflicted upon the
applicant;
(ii) Evidence that the applicant could relocate
to a part of the country of removal where he or
she is not likely to be tortured;
(iii) Evidence of gross, flagrant or mass viola-
tions of human rights within the country of
removal, where applicable; and
(iv) Other relevant information regarding
conditions in the country of removal.
Nos. 11-3622 & 12-2596 35
Nuru v. Gonzales, 404 F.3d 1207, 1225 (9th Cir. 2005)
(“[Torture] is a fortiori conduct that reaches the level of
persecution.”). In this context, with these two critical
findings against the petitioners, it was not error for the
Board to deny reopening on the basis that they were not
prejudiced by the failure of prior counsel to pursue a
CAT claim on appeal.
The petitioners also claim that ineffective assistance
is demonstrated by the failure to present their daughter’s
testimony in the removal hearing. The petitioners acknowl-
edge that the daughter’s testimony could not alter
the nexus finding and therefore would not have affected
the asylum and withholding decisions. They claim, how-
ever, that it should have been presented to support
the CAT claim. Given its content, we cannot conclude
that the daughter’s testimony would have established
torture, or, as the Board found, that it would have
affected the relocation analysis. Under these circum-
stances, the Board did not err in concluding that the
failure to present the daughter was not prejudicial to
the CAT claim.
Conclusion
The petitioners have not presented evidence that
would require a factfinder to conclude that they were
subjected to past persecution or that any harm they
suffered was on account of a statutorily protected
ground. Accordingly, we deny the petition for review
with respect to their underlying removal order. Further,
the Board did not irrationally deny their motion to
36 Nos. 11-3622 & 12-2596
reopen on the basis of ineffective assistance because
the petitioners have not established prejudice from any
of counsel’s actions.
P ETITIONS D ENIED
7-25-13