                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-22-2009

Utpal Desai v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1480




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"Utpal Desai v. Atty Gen USA" (2009). 2009 Decisions. Paper 1321.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1321


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CLD-188                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 09-1480
                                     ___________

                            UTPAL AJITKUMAR DESAI,
                                             Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                      Respondent

                           ___________________________

                       On Petition for Review of a Decision of the
                            Board of Immigration Appeals
                              (Agency No. A037-061-888)
                           Immigration Judge: Susan G. Roy
                      ____________________________________

                 Submitted for Possible Summary Action Pursuant to
                       Third Circuit LAR 27.4 and I.O.P. 10.6
                                    May 14, 2009
            Before: RENDELL, HARDIMAN and COWEN, Circuit Judges

                             (Opinion filed: May 22, 2009)
                                      _________

                                      OPINION
                                      _________

PER CURIAM

      Utpal Ajitkumar Desai, a native and citizen of India, was admitted to the United

States as a lawful permanent resident in 1980. On June 4, 2008, Desai was served with a
notice to appear alleging that he was subject to removal under INA §§ 237(a)(2)(B)(i) and

237(a)(2)(A)(iii) for the following offenses: (1) possession of a controlled substance in

2002; and (2) third degree theft in 1994. At his removal hearing, the Immigration Judge

(“IJ”) found that Desai was subject to removal as charged in the notice to appear. Desai

sought deferral of removal under the Convention Against Torture. Desai alleged that he

faced discrimination and persecution if he returned to India because he is HIV-positive

and would not receive proper medical treatment.1 Desai also alleged that he would be

detained and subjected to persecution by the government and police in India because of

his criminal history in the United States. The IJ denied relief and the Board of

Immigration Appeals (BIA) upheld the IJ’s decision. Through counsel, Desai filed a

timely petition for review. The government filed a motion for summary affirmance and

Desai has filed a response.

          We have jurisdiction over Desai’s petition for review pursuant to INA § 242. The

petition presents a question of law, one concerning the proper legal interpretation of

torture. We review that question de novo. Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d

Cir. 2008) (en banc). We may summarily deny a petition for review that presents us with

no substantial question. 3d Cir. LAR 27.4 and I.O.P. 10.6. For the reasons that follow,

we will do so.

          In order to obtain deferral of removal, Desai must show that it is more likely than



   1
       At his hearing, Desai testified to having full-blown AIDS.

                                                2
not that he will be tortured if returned to India. See 8 C.F.R. § 208.17(a). He must show

a specific intent to torture, i.e., “that his prospective torturer will have the motive or

purpose to cause him pain or suffering.” Pierre, 528 F.3d at 189. An act is torture if it is

intentionally inflicted on a person for the purposes of obtaining information or a

confession, punishment, intimidation or coercion, or for any reason based on

discrimination of any kind, by the instigation or with the consent or acquiescence of a

public official or other person acting in an official capacity. See 8 C.F.R. § 208.17(a).

       The BIA correctly concluded that Desai failed to establish that the government of

India had any specific intent or motive to torture him. See Pierre, 528 F.3d at 189. The

pain and suffering Desai claimed that he would experience as a result of either inadequate

medical treatment or being detained upon return to India would not, as the BIA correctly

noted, be the result of any specific intent to torture by the Indian government, but an

unintended consequence of medical care that is deficient compared to what he is now

receiving. See Pierre, 528 F.3d at 189 (“The lack of medical care and likely pain that [a

petitioner] will experience [in detention] is an . . . unintended consequence . . . that . . . is

not the type of proscribed purpose contemplated by the CAT.”).

       Similarly, the BIA correctly held that Desai failed to show that any discrimination

that he may face in India, based on his HIV status, would be directed or encouraged by

the government of India, but rather is general discrimination that does not constitute

torture. See id. Given the lack of evidence that Desai would be singled out for torture,



                                                3
the BIA did not err in concluding that Desai failed to meet the requirements for relief

under CAT.

       As this appeal presents no substantial question, we will grant the Government’s

motion for summary action. See 3d Cir. LAR 27.4 and 3d Cir. I.O.P. 10.6.




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