                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-20-2007

Patel v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2884




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                                                     NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                            No. 06-2884


                   MUKESHKUMAR R. PATEL,
                                Petitioner

                                 v.

         ATTORNEY GENERAL OF THE UNITED STATES,
                                Respondent


               Petition for Review of an Order of the
                United States Department of Justice
                   Board of Immigration Appeals
                       (BIA No.A73-162-623)
          Immigration Judge: Honorable Alberto J. Riefkohl


             Submitted Under Third Circuit LAR 34.1(a)
                        December 13, 2007

Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges.

                     (Filed: December 20, 2007)


                    OPINION OF THE COURT
RENDELL, Circuit Judge.

       Mukesh Kumar Patel,1 his wife Hemlata Patel, and their children Dharmesh and

Kavish — all natives of India — petition for review of the order of the Board of

Immigration Appeals (“BIA”) denying their motion to reopen their immigration case. We

have jurisdiction pursuant to 8 U.S.C. § 1252. Since the BIA applied the wrong standard

in assessing the Patels’ motion to reopen, we will grant the Patels’ petition for review,

vacate the BIA’s order, and remand to the BIA for a re-evaluation of the motion to reopen

using the proper standard.

       The Patels seek asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”) based on their fear of persecution and torture in India by the

Hindu extremist group, the Rastriya Sevak Sangh (“RSS”). The Patels are Hindus but

claim that RSS members beat and threatened Mr. Patel and other family members because

Mr. Patel helped protect Muslims from the RSS. The Immigration Judge (“IJ”) denied

the Patels relief because he did not find Mr. Patel to be credible due to inconsistencies

between his written statements and testimony. The BIA adopted the pertinent parts of the

IJ’s findings.

       The Patels filed an untimely motion to dismiss based on new evidence that was

unavailable beforehand. See 8 C.F.R. § 1003.2(c)(2), (3)(ii). Specifically, they submitted




  1
    Although Mr. Patel’s name is spelled “Mukeshkumar” by the BIA and on our docket,
the Patels spell it “Mukesh Kumar” in their brief.

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affidavits indicating that, in the time since the BIA issued its final order, RSS members

had twice gone to the home of Ms. Patel’s father, where they demanded money,

vandalized the property, threatened him, and said they would physically harm Mr. Patel

when he returned to India.

       The BIA accepted the untimely motion due to the new evidence on which it was

based and appears to have found that evidence credible. However, it rejected the motion

on the merits, finding that the Patels “failed to establish that reopening is warranted”

because the evidence they submitted “does not establish that [they] could not relocate to a

different locality in India, where the RSS is not aware of [Mr. Patel’s] previous

activities.” (A.R. Supp. 2.) Mr. Patel testified before the IJ that relocation within India

would be a “big problem” because he did not know any of the languages spoken in

India’s other provinces. (A.R. 100.) Furthermore, the Patels submitted evidence to

suggest that the RSS was affiliated with the then-ruling Bharatiya Janata Party (“BJP”)

and was active throughout India. The Patels now claim that the BIA failed to address this

evidence and thus erred in finding that they “failed to sustain their burden to show that

they would not be free from persecution elsewhere in India.” (Petr.’s Br. at 3-4.)

       We review the BIA’s denial of a motion to reopen for abuse of discretion, which

means that we will not disturb it unless it is “arbitrary, irrational, or contrary to law.”

Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). We have made clear that the grant of

a petition for review is warranted when the BIA holds an applicant to an “excessively



                                               3
rigorous standard” in its evaluation of a motion to reopen. Id. at 563-64.

       To succeed on a motion to reopen, an applicant must establish prima facie

eligibility for the relief he seeks. Id. at 563. To establish prima facie eligibility, the

applicant must produce objective evidence demonstrating that there is a “reasonable

likelihood” that he can establish that he is entitled to relief. Id. As we explained in Guo,

“[a] ‘reasonable likelihood’ means merely showing a realistic chance that the petitioner

can at a later time establish that [relief] should be granted.” Id. at 564.

       In effectively requiring the Patels to “establish” that they could not relocate

elsewhere in India, the BIA applied a more rigorous standard than it should have for the

evaluation of a motion to reopen.2 An applicant for asylum or withholding of removal

who has not established past persecution “bear[s] the burden of establishing that it would

not be reasonable for him or her to relocate, unless the persecution is by a government or

is government-sponsored.” 8 C.F.R. §§ 208.13(b)(3)(i), 208.16(b)(3)(i). Therefore, in

the context of a motion to reopen, an applicant claiming fear of persecution that is not by

a government or government-sponsored must show a reasonable likelihood that he or she

would be able to establish at a later time that relocation within the country would be

unreasonable. At the motion-to-reopen stage, an applicant need not actually establish that

such relocation is impossible or unreasonable, but the BIA required the Patels to do so in

  2
    The Patels do not directly challenge the standard that the BIA employed but, in order
to rule on their argument that the BIA erred in the conclusion that it reached regarding
their ability to relocate within India, we need to determine exactly what the Patels had the
burden to demonstrate at the motion-to-reopen stage.

                                               4
this case.

       If the persecution that an applicant for asylum or withholding of removal fears is

either by the government or is government-sponsored, the applicant does not have the

burden to show that relocation would be unreasonable. Rather, relocation is presumed to

be unreasonable and it is the government’s burden to show that it would be reasonable.

8 C.F.R. §§ 208.13(b)(3)(ii), 208.16(b)(3)(ii). The Patels seem to assert that the RSS is

sufficiently intertwined with the government for persecution by the RSS to constitute

government or government-sponsored persecution. They point to the February 23, 2001

State Department Country Report’s description of the ties between the RSS and the BJP,

“a Hindu nationalist political party with links to Hindu extremist groups.” (A.R. 187.)

The Report explains: “Many BJP leaders and party workers are members of [the RSS]

and share some of its ideology. However, the BJP is an independent political party and

the degree of RSS influence over its policy making is not clear. . . . Most BJP leaders also

are RSS members.” Id. The BIA, however, never explicitly indicated whether

persecution by the RSS qualifies as government or government-sponsored persecution —

even though the answer to this question bears directly on whether the Patels had the

burden to demonstrate anything regarding the unreasonableness of relocation in their

motion to reopen. If relocation factors into the BIA’s decision on remand, it should

clearly address this question.

       There is also no need to establish that internal relocation is impossible or



                                              5
unreasonable in order to make out a prima facie case for relief under the CAT. In ruling

on an application for CAT relief, the BIA must consider “[e]vidence that the applicant

could relocate to a part of the country of removal where he or she is not likely to be

tortured” — along with considering any other “evidence relevant to the possibility of

future torture.” 8 C.F.R. § 208.16(c)(3). Therefore, at most, the Patels should have been

required to show in their motion to reopen that they were reasonably likely to be able to

establish at a later time that there is no place they can relocate in India where they are

unlikely to be tortured.

       Since the BIA held the Patels to a more rigorous standard than it should have

regarding all three forms of relief that they seek, we will grant the petition for review,

vacate the BIA’s order, and remand the case to the BIA for a re-evaluation of the motion

to reopen using the proper standard.




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