                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-4-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4619




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 02-4619




                      SUSHILABEN BHARATKUMAR PATEL,
                                               Petitioner

                                           v.

                                 JOHN ASHCROFT,
                         Attorney General of the United States,
                                                             Respondent




                 On Petition for Review of a Decision and Order of the
                             Board of Immigration Appeals
                                (BIA No. A70-584-748)


                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  May 25, 2004
     Before: SCIRICA, Chief Judge, RENDELL and ALARCÓN*, Circuit Judges

                                 (Filed: June 4, 2004 )




                              OPINION OF THE COURT




   *The Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
SCIRICA, Chief Judge.

       In this immigration case, petitioner seeks review of a Board of Immigration

Appeals decision upholding the Immigration Judge’s denial of her applications for asylum

and withholding of removal. For the following reasons, we will deny the petition to

review.

                                             I.

       Petitioner Sushilaben Patel, a citizen of India, entered the United States on August

11, 1992 on a six-month nonimmigrant visa. Patel overstayed her visa, and on March 24,

1999, the Immigration and Naturalization Service issued a notice to appear, charging her

as removable under 8 U.S.C. § 1227(a)(1)(B). While Patel conceded removability, she

applied for asylum, withholding of removal, and protection under the Convention Against

Torture.

       In her hearing before the Immigration Judge, Patel testified that she encountered

persecution from Muslim extremists due to her Hindu religion and her activities as a

member and organizer in the Baj Rang Dal party. 1 Muslims allegedly threw stones at her

house, sprayed kerosene on her house (but were chased away by Hindu members of the




   1
    The Baj Rang Dal party, alternately named the Janata Dal or Ekta Dal party, is a
fundamentalist Hindu political party. As part of her activities, Patel allegedly helped to
organize a movement to destroy the Babri Masjid, a Muslim mosque built on the site of
what is believed to be the birthplace of the Hindu Lord Rama, and build a new temple to
Rama. Patel states she did not participate in the actual destruction of the mosque, but she
claims that Muslim groups believe she did.

                                             2
community before setting fire to the house), and threatened and beat her and her husband

when they passed close to a mosque. Because of this harassment, Patel switched to the

Janata Dal political party, a moderate, non-fundamentalist party she believed to be less

threatening to the Muslim community. After changing parties, however, Patel claims the

Baj Rang Dal party harassed her for joining the Janata Dal party, so she switched

affiliations to the Bharatiya Janata Party (BJP). She contends this reduced, but did not

eliminate, the harassment from Muslim extremists and the Baj Rang Dal party. Finally,

Patel alleges Indians from other castes persecuted her family for belonging to the Patel

social caste, stealing her family’s animals and destroying their crops.

       On November 16, 1999, the IJ issued an oral decision denying Patel’s applications

for asylum, withholding of removal, and protection under the Convention Against

Torture. Patel appealed with respect to the asylum and withholding of removal claims.

She also alleged the IJ’s conduct during the hearing prejudiced her claims. The Board

upheld the decision of the IJ, finding that her past experiences did not amount to

persecution as defined in 8 C.F.R. § 208.13(a), and that she did not have a well-founded

fear of future persecution as described in 8 C.F.R. § 208.13(b). In addition, the Board

rejected Patel’s claim that she was prejudiced by the conduct of the IJ. Patel filed this

timely petition for review.




                                              3
                                               II.

       We review the BIA’s findings of facts under the deferential substantial evidence standard

as found in INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Abdille v. Ashcroft, 242 F.3d 477,

483-84 (3d Cir. 2001). We must uphold these findings unless the evidence compels a contrary

conclusion. Amanfi v. Ashcroft, 328 F.3d 719, 724-25 (3d Cir. 2003). This Court has

jurisdiction under 8 U.S.C. § 1252.

                                              III.

A.     Asylum Claim

       An asylum applicant has the burden of proof to establish he is a refugee by

showing that he has suffered past persecution or has a well-founded fear of future

persecution. 8 C.F.R. §§ 208.13(a), (b) (2004). We have defined “persecution” narrowly

to only include extreme conduct including injury or suffering. Fatin v. INS, 12 F.3d

1233, 1238 (3d Cir. 1993); see also Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000) (“To

qualify as persecution, a person’s experience must rise above unpleasantness, harassment,

and even basic suffering.”). To demonstrate a well-founded fear of future persecution,

the applicant must show that he has a subjective fear of persecution in his home country

and that there is a reasonable possibility of suffering such persecution if he were to return

to that country. 8 C.F.R. § 208.13(b)(2).




                                               4
       1.     Political Opinion and Religion

       Patel claims that substantial evidence in the record contradicts the Board’s finding

that she failed to establish past persecution or a well-founded fear of persecution on

account of her political opinion or religion. She claims that Muslim extremists

mistakenly believed she was involved in the destruction of the Babri Mosjid mosque, and

as a result they allegedly threw stones at and sprayed kerosene on her house and attacked

her and her husband as they walked close to a mosque. She also maintains the Baj Rang

Dal party harassed her after she switched to the Janata Dal political party, although she

provides no specific instances of harassment. Finally, Patel maintains the Baj Rang Dal

party and Muslim extremists will persecute her if she returns to India.

       As the Board correctly concluded, the isolated incidents of harassment cited by

Patel do not rise to the level of persecution as contemplated in 8 C.F.R. §§ 208.13(a) and

(b). Furthermore, Patel has presented no evidence to substantiate her fears of further

persecution upon her return to India. Patel concedes that any harassment by the Baj Rang

Dal party diminished after she joined the BJP. Since Hindus comprise eighty percent of

India’s population, Patel could relocate to an area where she would not encounter

persecution from Muslims, a solution suggested in the U.S. State Department’s Country

Profile on India. Substantial evidence in the record supports the Board’s decision.




                                             5
       2.     Membership in a Social Group

       Patel also claims the Board incorrectly concluded she was not persecuted and did

not have a well-founded fear of persecution on account of her membership in a particular

social group, the Patel social caste. According to Patel, members of other castes in India

“used to get into your farm in the night and used to steal all the cows, buffalos, all the

cattle . . . They used to cut our lawn, all the grass, too.” But Patel only testified as to what

other castes “used to do” to her family members. She presented no evidence that she

personally experienced any instances of persecution as defined by 8 C.F.R. §§ 208.13(a)

and (b) due to her membership in the caste, nor did she present evidence of persecution

encountered by other members of her caste, comprising approximately one and a half

million people. Patel claims she would be persecuted anywhere in India for her

membership in the Patel caste, as her language, dress, and customs are distinctive to that

caste, yet she has not supported this claim with substantial evidence. There is no

evidence in the record that would compel a reasonable fact-finder to reach a different

conclusion than that reached by the Board. Because of this, we will affirm the Board’s

denial of Patel’s application for asylum.

B.     Withholding of Removal Claim

       Patel also claims the Board erred in refusing her request for withholding of

removal. Under 8 U.S.C. § 1231(b)(3)(A), the Attorney General may not remove an alien

to his home country if it determines that the “alien’s life or freedom would be threatened



                                               6
in that country because of the alien’s race, religion, nationality, membership in a

particular social group, or political opinion.” To qualify for mandatory relief under

withholding of removal, Patel must show she “more likely than not . . . will face

persecution if [s]he is deported.” Li Wu Lin v. INS, 238 F.3d 239, 244 (3d Cir. 2001).

       As discussed, Patel failed to present sufficient evidence to substantiate her claims

of past persecution and fear of future persecution. She has not demonstrated that

persecution will “more likely than not” occur upon her return to India. There is

substantial evidence supporting the Board’s conclusion that Patel failed to meet the

standard required for granting mandatory withholding of removal.

C.     Prejudice by the IJ

       Finally, Patel claims the IJ prejudiced her case when he expressed doubts about the

merits of her applications for asylum and withholding of removal before the hearing. The

IJ specifically stated at the master calendar hearing:

       We have an asylum application here. I have reviewed it. Before we went on the
       record, I said that, in my opinion, it has no basis whatsoever. There’s nothing I
       can do about it. We’re going to have to go ahead and adjudicate it and she can
       appeal, but the basis for – the reason why I said that is to be helpful to you and
       your client.
              She needs to realize that this is not going to result in her obtaining lawful
       permanent resident status in the United States. And while she still has time, she
       should look to see if she can qualify for either a labor certification or a relative
       visa petition.




                                              7
App. 99-100. Patel alleges that the IJ’s statement and alleged predisposition toward

denying her applications violated her due process rights and chilled her testimony and

presentation of evidence.

       In order for the IJ to have violated Patel’s due process rights, its actions must have

been “fundamentally unfair.” Burkett v. Cunningham, 826 F.2d 1208, 1220-22 (3d Cir.

1987). This was not the case here. As demonstrated by his comments, the IJ intended to

give Patel an opportunity to collect stronger evidence in preparation for the hearing while

encouraging her to investigate other avenues of relief. Patel presents no substantive

evidence of potential bias, intimidation or ways in which the IJ’s statement “chilled” her

testimony. Lacking any further evidence, we find the IJ’s advice and warning did not

violate Patel’s due process rights. See, e.g., Ciorba v. Ashcroft, 323 F.3d 539, 544 (7th

Cir. 2003) (holding that isolated comments by an IJ designed to focus counsel’s attention

on the inadequacy of evidentiary submissions did not establish bias on the part of the IJ).

                                             IV.

       For the reasons stated, we will deny the petition for review.




                                              8
