                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-27-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2730




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                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 05-2730


                               MADAN SINGH MAHI,
                                            Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                       Respondent


                      On Petition for Review of the Order of the
                           Board of Immigration Appeals
                             (Agency No. A76 105 715)
                         Immigration Judge Donald Ferlise


                      Submitted Under Third Circuit LAR 34.1(a)
                                   July 12, 2006

          Before: BARRY, CHAGARES AND COWEN, CIRCUIT JUDGES

                                 (Filed: July 27, 2006)


                                       OPINION




PER CURIAM

      Madan Singh Mahi, a native and citizen of India, petitions for review of an order

of removal of the Board of Immigration Appeals (“BIA”). We will deny the petition.

      In his removal proceedings, Mahi conceded, through counsel, that he is removable
for being present in the United States without being admitted or paroled. See 8 U.S.C.

§ 1182(a)(6)(A). Mahi applied for asylum, withholding of removal, and relief under the

Convention Against Torture. The Immigration Judge (“IJ”) found Mahi ineligible for

asylum because Mahi did not establish that he filed his asylum application within one

year of when he entered the United States. The IJ considered Mahi’s applications for

withholding of removal and relief under the Torture Convention.

       Mahi testified that his religion is Sikh. In 1994, Mahi joined the Shiromani Akali

Dal (Mann) political party, the goal of which was an independent state of Khalistan for

the Sikhs. Mahi gave speeches and tried to recruit new party members. Mahi claims that

the local police in Punjab beat him on three occasions due to his party activities.

       The first incident occurred in 1994 when the police took Mahi from his home and

accused him of supporting the party. Mahi testified that the police beat him at the police

station with bamboo sticks and a leather belt on his arms, legs, and back. Mahi stated that

the police detained him for four days and questioned him about his party activities.

Mahi’s father and the local village council helped with his release.

       Mahi continued his party activities. Approximately two years later, in February

1996, the police arrested Mahi’s cousin, a member of the All-India Sikh Student

Federation, and charged him with supplying ammunition to radicals. The police detained

his cousin for five days and then killed him. Mahi stated that when he learned about his

cousin’s death, he, his uncle, his father, and other party members went to the police



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station and asked for the body. The police refused to give it to them. Mahi believed that

the police burned the body because they wanted to conceal evidence that he was beaten.

       After Mahi was unable to obtain his cousin’s body, he protested at the police

station with his father, uncle, and party members. As a result, the police beat Mahi, his

father, and his uncle. Mahi stated that the police beat them because they did not want

them to talk about his cousin’s death. The police released Mahi’s father who then paid

the police to release Mahi. The police detained Mahi for eight days and beat him with

bamboo sticks and a leather belt on his legs, arms, and ears. Upon his release, Mahi was

hospitalized for four days.

       Two years later, on January 26, 1998, Mahi took 200 people by truck and trolley to

a town to protest unfair treatment by the government. Mahi incited the demonstrators by

telling them about his cousin. Mahi was arrested with other party members. Mahi stated

that the police beat him with sticks and a leather belt, hung him upside down and pulled

his legs, and rolled rollers on his legs. The police told him to stop his party activities. On

February 2, 1998, Mahi’s father paid the police to release him. Mahi was treated for his

injuries at the hospital.

       On June 5, 1998, the day before an event that Mahi was organizing, the police

raided his home. Mahi was not there, and the police arrested and beat his father. The

police wanted his father to bring Mahi to the police station. Mahi did not return home

because his father told him the police were looking for him. The police searched the



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house of his aunt and uncle in an effort to find him. Mahi believed it was too dangerous

for him to stay in India. Mahi testified that he could not move to another part of India

because the police in his village would be contacted and would arrest him due to his party

membership. Mahi fears that, if he returns to India, the Punjab police will kill him.

       The BIA adopted and affirmed the decision of the IJ, who found Mahi not credible

and denied his applications for relief. The BIA also agreed with the IJ that Mahi had not

met his burden to establish the timeliness of his asylum request. In addition, the BIA

concluded that, even if Mahi were credible and eligible for asylum, the conditions in India

have changed and he no longer has a well-founded fear of persecution. The BIA further

found that Mahi could safely relocate in India.

       Mahi filed a pro se petition for review. We have jurisdiction pursuant to 8 U.S.C.

§ 1252(a)(1). We will review the IJ’s opinion to the extent that it was adopted by the

BIA. Cham v. Attorney General, 445 F.3d 683, 690 (3d Cir. 2006).

       In his brief, Mahi argues that the BIA erred in concluding that he is ineligible for

asylum because he did not establish that he filed his asylum application within one year of

when he entered the United States. Mahi contends that his testimony established his date

of arrival and the timeliness of his application. We lack jurisdiction, however, to review

the determination that Mahi did not establish that he timely filed his application. See

Sukwanputra v. Gonzales, 434 F.3d 627, 633-34 (3d Cir. 2006) (stating that, with the

exception of constitutional claims and questions of law, the Court lacks jurisdiction to



                                              4
review a determination that an asylum application was untimely filed).

       Mahi also argues that the IJ erred in concluding that he did not testify credibly.

Adverse credibility determinations are reviewed for substantial evidence. Berishaj v.

Ashcroft, 378 F.3d 314, 323 (3d Cir. 2004). If a reasonable fact finder could make a

particular finding on the administrative record, then the finding is supported by

substantial evidence. Id. at 322 (citing Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003)

(en banc)). Conversely, if no reasonable fact finder could make that finding on the

administrative record, the finding is not supported by substantial evidence. Id. at 322-23.

       The BIA affirmed the IJ’s adverse credibility determination based upon Mahi’s

shifting testimony about the death of his cousin, which gave rise to his own arrest. Mahi

initially testified that he went to the police station with his uncle, his father, and members

of the All-India Sikh Student Federation and Akali Dal (Mann), and asked for his

cousin’s dead body. He stated that “[t]he police refused to give us that dead body.” A.R.

at 151. Later in the hearing, the IJ questioned Mahi further about the incident. First,

Mahi testified that the police acknowledged that his cousin died and said that his cousin

died in a police encounter. A.R. at 184. He then stated that the police did not tell them

that his cousin was killed in an encounter. Rather, they “came to know” about the

incident. A.R. at 184.

       When the IJ asked Mahi further questions in an effort to clarify his testimony,

Mahi again stated that the police said that his cousin was killed in a police encounter.



                                              5
A.R. at 184-85. However, he then stated that he “just came to know that the police killed

him,” and the police did not acknowledge that they had his cousin in custody. A.R. at

185. Mahi further testified that the police did not acknowledge that they ever had any

contact with his cousin or that they killed him. A.R. at 185. Mahi also provided no

specific answer when the IJ asked how he came to know that the police killed him. Mahi

stated only that “[w]hen the police encounter happened, everybody knows.” A.R. at 185.

       Mahi contends that he was confused by the IJ’s questioning. The IJ, however,

gave Mahi multiple opportunities to clarify his testimony about his cousin’s death. Mahi

also argues that he submitted his cousin’s death certificate in support of his claim. The IJ

gave little weight to the certificate because Mahi’s family supplied the information

reflected in the certificate. Although Mahi argues that the certificate was prepared

pursuant to the normal procedures for the registration of deaths in Punjab, there is no

evidence in the record establishing those procedures.

       We conclude that a reasonable fact finder could make an adverse credibility

finding on the administrative record. Berishaj, 378 F.3d at 322. In light of this

conclusion, we need not address the BIA’s additional findings regarding changed

conditions in India and Mahi’s ability to relocate there. Because the adverse credibility

determination is supported by substantial evidence, we will deny the petition for review.




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