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


5-9-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1575




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                            NOT PRECEDENTIAL


   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT


           Nos. 06-1575 and 06-1576


           IMRAN DHANAKWALA,

                            Petitioner in No. 06-1575

                       v.

ATTORNEY GENERAL OF THE UNITED STATES



       HAJIASHRAF DHANAKWALA,

                            Petitioner in No. 06-1576

                       v.

ATTORNEY GENERAL OF THE UNITED STATES


   On Petition for Review from an Order of the
         Board of Immigration Appeals
        (D.C. No. 0312-2: A97-434-254;
         D.C. No. 0312-2: A97-434-256)


 Submitted Pursuant to Third Circuit LAR 34.1(a)
                 April 13, 2007




 BEFORE: SMITH and COWEN, Circuit Judges
                               and YOHN*, District Judge

                                   (Filed: May 9, 2007)


                                        OPINION



COWEN, Circuit Judge.

       Hajiashraf Dhanakwala and Imran Dhanakwala, natives and citizens of India,

petition for review of orders of the Board of Immigration Appeals (“BIA”), affirming an

Immigration Judge’s (“IJ”) denial of their applications for withholding of removal

pursuant to the Immigration and Nationality Act (“INA”) and protection under the

Convention Against Torture (“CAT”). For the reasons stated below, we will deny their

petitions for review.

                                             I.

       Because we write only for the parties, we will recite only those facts helpful to our

brief discussion. Hajiashraf Dhanakwala entered the United States on or about May 10,

2002, as a non-immigrant visitor with authorization to stay until November 9, 2002. On

June 26, 2003, the Department of Homeland Security issued a Notice to Appear charging

him with remaining in the United States for a time longer than permitted. Subsequently,



*Honorable William H. Yohn Jr., Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.



                                             2
Mr. H. Dhanakwala submitted an application for withholding of removal and protection

under CAT.

       At a merits hearing held on September 20, 2004, Mr. H. Dhanakwala admitted the

charges against him and offered testimony and documentary evidence in support of his

application for relief. He testified that while in India, he was a practicing Muslim and

participated in three rallies to protest the destruction of a mosque. During the rallies,

Indian police beat some of the demonstrators with sticks, causing Mr. H. Dhanakwala to

fear for his own safety. He testified that after the last rally, the Indian police harassed

him at his home and visited him at his shop several times. He further testified that the

Indian police demanded that he provide information about his son, required him to close

his shop to come to the police station, threatened to arrest him, and extorted money from

him. He conceded, however, that the police never formally arrested, detained, or beat

him.

       At the conclusion of the merits hearing, the IJ denied Mr. H. Dhanakwala’s

application for withholding of removal and protection under CAT, and ordered him

removed to India. The IJ reasoned that even assuming the truthfulness of his testimony,

Mr. H. Dhanakwala failed to meet his burden of establishing a clear probability that his

life or freedom would be threatened on any of the statutorily enumerated grounds if he

returned to India, and made no showing that he was likely to be tortured upon his return.

The Board adopted and affirmed the IJ’s decision, and this petition for review ensued.

                                              II.

                                               3
       Imran Dhanakwala, Mr. H. Dhanakwala’s nephew, entered the United States

without inspection on or about June 23, 2001. On June 26, 2003, the Department of

Homeland Security issued a Notice to Appear charging him with being present in the

United States without having been admitted or paroled. Subsequently, Mr. I. Dhanakwala

submitted an application for withholding of removal and protection under CAT.

       At a merits hearing held on September 20, 2004, Mr. I. Dhanakwala admitted the

charges against him and presented testimony and documentary evidence in support of his

application for relief. Like his uncle, he testified that he was a practicing Muslim and

participated in rallies in India to protest the destruction of a mosque. He testified that

following the last rally, the Indian police visited his home on numerous occasions for a

two-month period, and that he stayed in hiding during that time. He claimed that he was

one of the people the police were attempting to arrest. Like his uncle, however, Mr. I.

Dhanakwala admitted that he was never arrested, detained or beaten by the Indian police.

       After hearing the testimony and considering the documentary evidence, the IJ

denied Mr. I. Dhanakwala’s application for withholding of removal and protection under

CAT, and ordered him removed to India. As in the related case, the IJ reasoned that even

assuming the truthfulness of his testimony, Mr. I. Dhanakwala failed to meet his burden

of establishing a clear probability that his life or freedom would be threatened on any of

the statutorily enumerated grounds if he returned to India, and made no showing that he

was likely to be tortured upon his return. The Board adopted and affirmed the IJ’s

decision, and this petition for review ensued.

                                              4
                                             III.

       We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Where, as here, the BIA

adopts the decision of the Immigration Judge, we review the decision of the Immigration

Judge. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). The factual findings of the

Immigration Judge are deemed conclusive “unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see INS v.

Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992).

                                             IV.

                                              A.

       Petitioners make essentially four arguments on appeal. First, they argue that to

demonstrate relief under CAT, they need only show the government’s awareness of the

torture inflicted on them by non-governmental actors, not the government’s actual

knowledge, or willful acceptance, of the torture. See Zheng v. Ashcroft, 332 F.3d 1186

(3d Cir. 2003). They devote no less than five pages to this argument in their respective

briefs, citing legislative history and about half of a dozen cases, and alleging that “the

government of Columbia is unable or unwilling to protect its citizens from threats made

by these powerful and unlawful gangs . . . .” (emphasis added). This entire argument is

wholly irrelevant to the instant petitioners’ claims of persecution based upon torture by

police officials in India.

                                              B.



                                              5
       Closer to the mark, but equally unavailing, is petitioners’ second argument. In

support of their claims for withholding of removal and CAT protection, petitioners argue

that the conduct to which they were subjected in India rises to the level of persecution

and/or torture.

       In order to be entitled to withholding of removal, an applicant must “demonstrate[]

a ‘clear probability’ that, upon return to his or her home country, his or her ‘life or

freedom would be threatened’ on account of race, religion, nationality, membership in a

particular social group, or political opinion.” Chen v. Ashcroft, 376 F.3d 215, 223 (3d

Cir. 2004). “Persecution” includes “threats to life, confinement, torture, and economic

restrictions so severe that they constitute a threat to life or freedom.” Fatin v. INS, 12

F.3d 1233, 1240 (3d Cir. 1993). The concept of “persecution” denotes “extreme conduct”

that does not include every sort of treatment our society regards as offensive, unfair,

unjust, or even unlawful or unconstitutional. Id. at 1240 & n.10, 1243.

       In Li v. Attorney General, 400 F.3d 157, 164 (3d Cir. 2005), we opined that

“[t]hreats standing alone . . . constitute persecution in only a small category of cases.” Id.

(citation and internal quotation marks omitted). We held that “unfulfilled threats must be

of a highly imminent and menacing nature in order to constitute persecution.” Id. On the

issue of economic harm, we said in Li that “the deliberate imposition of severe economic

disadvantage which threatens a petitioner’s life or freedom” may constitute persecution.

Id. at 168. We gave as examples “the deprivation of liberty, food, housing, employment,

and other essentials of life.” Id. (citation and internal quotation marks omitted).

                                              6
       To qualify for protection under CAT, an applicant must “establish that it is more

likely than not that he or she would be tortured if removed to the proposed country of

removal.” 8 C.F.R. § 208.16(c)(2). Torture is defined, in relevant part, as “any act by

which severe pain or suffering, whether physical or mental, is intentionally inflicted on a

person.” Id. § 208.18(a)(1).

       Applying these principles, we conclude that substantial evidence supports the IJ’s

conclusions that the petitioners failed to establish a likelihood of persecution or torture if

returned to India. Although petitioners assert that they received “credible threats against

[their] li[ves],” there is nothing in the record to support their bald assertion. The record is

also devoid of any facts tending to show that the police’s threats to arrest Mr. H.

Dhanakwala were of a “highly imminent and menacing nature.” Li, 400 F.3d at 164.

Similarly, the record does not demonstrate that the Indian police’s extortion of money

from Mr. H. Dhanakwala or the police’s demand that he close his shop for several hours

imposed a “severe economic disadvantage which threaten[ed] [his] life or freedom.” Id.

at 168. Finally, none of the other police conduct described by petitioners rises to the level

of persecution or torture. Cf. Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (holding

that alleged persecutors’ forced entry into home and store was not sufficiently severe to

constitute persecution).

                                              C.

       Petitioners’ third argument is that the country reports in the record demonstrate

that there is a pattern or practice of persecution by the government in India. An applicant

                                               7
can qualify for withholding of removal by showing that he or she has suffered past

persecution, or that it is “more likely than not that he or she would be persecuted” either

by being singled out individually or because of the existence of a “pattern or practice of

persecution of a group of persons similarly situated.” 8 C.F.R. § 208.16(b)(1), (2). We

have said that “to constitute a ‘pattern or practice,’ the persecution of the group must be

systemic, pervasive, or organized.” Lie, 396 F.3d at 537 (citation omitted). Here,

petitioners fail to point to any specific information in the four country reports in the

record showing systemic and pervasive persecution of a group of persons similarly

situated to them. Certainly, we cannot conclude that the reports compel the conclusion

that petitioners’ lives or freedom would be persecuted if returned to India, or that it is

more likely than not they will be tortured if returned there.

                                              D.

       Fourth, and finally, petitioners make a rather lengthy argument that the BIA erred

in affirming the IJ’s decision “without specifying what additional documentary evidence

would be needed.” Citing to Abdulai v. Ashcroft, 239 F.3d 542 (2001), they maintain that

we should remand this case so that the Board is given an opportunity to identify the

inadequacies or missing elements of petitioners’ claims which require additional

corroborating evidence. Their argument is misplaced. Neither the IJ in denying their

claims, nor the BIA in affirming and adopting the IJ’s decisions, rested on any failure on

the part of petitioners to provide corroborating evidence. Rather, the IJ concluded, and



                                              8
the BIA affirmed, that the incidents that petitioners described did not rise to the level of

persecution or torture. We find no error in the IJ’s evaluation of petitioners’ evidence.

       In summary, we conclude that the evidence in the record is insufficient to compel

any reasonable adjudicator to conclude that there is a clear probability that petitioners’

lives or freedom would be threatened on account of a protected ground if returned to

India, or that it is more likely than not they will be tortured if returned there. For the

foregoing reasons, the petitions for review will be denied.




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