                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-6-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3415




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                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                          No. 07-3415
                                          ___________

                             BHUPENDRA KUMAR PATEL,
                                           Petitioner

                                              v.

                  ATTORNEY GENERAL OF THE UNITED STATES
                     ____________________________________

                           On Petition for Review of an Order
                          of the Board of Immigration Appeals
                                Agency No. A79 415 065
                           Immigration Judge: Henry S. Dogin
                       ____________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    February 1, 2008

                Before: AMBRO, FUENTES and FISHER, Circuit Judges

                             (Opinion filed February 6, 2008)
                                      ___________

                                           OPINION
                                          ___________

PER CURIAM

       Bhupendra Kumar Patel petitions for review of an order of the Board of

Immigration Appeals (BIA) denying his motion to reopen or reconsider. For the reasons

that follow, we will deny the petition.
       Patel is a native and citizen of India. In removal proceedings, he admitted

removability, but filed applications for asylum, withholding of removal and relief under

the United Nations Convention Against Torture. Patel claimed that his family, which is

Hindu, was persecuted in India for donating land to a Christian society to build a school.

Patel testified that on July 1, 2001, a group of people came to his family’s house, beat up

his parents, and burned their sugar cane crop. A.R. 141. Patel was not there at the time.

He never returned home after the incident, first fleeing to Bombay and then to the United

States. A.R. 141, 143-45. He additionally testified that his brother has been missing

since July 2001.

       The Immigration Judge (IJ) found Patel credible, and found that Patel could

potentially claim asylum on the basis of religion. A.R. 79. However, the IJ found that

Patel had not personally been persecuted in the past, as he was never harmed, and found

that it was not likely he would be persecuted in the future, as the persecution of his family

was based on one event that occurred five years earlier, and his parents continued to live

in the same place without harm. A.R. 80. The IJ also noted that Patel could relocate to

another area of India if he was not comfortable with returning to the area of the family

home. A.R. 81. The IJ thus denied all relief.

       The BIA affirmed without opinion. Patel then filed a motion to reopen and

reconsider, which the BIA denied. Patel filed a timely petition for review.

       This court reviews the Board’s denial of a motion for reconsideration for abuse of



                                             2
discretion only. Nocon v. INS, 789 F.2d 1028, 1029 (3d Cir. 1986).1 Similarly, the

decision to deny a motion to reopen is within the Board’s discretion. See 8 C.F.R.

§ 1003.2(a); Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001). Under the regulations, the

Board “has discretion to deny a motion to reopen even if the party moving has made out a

prima facie case for relief.” 8 C.F.R. § 1003.2(a). As the Supreme Court has stated, the

regulations “plainly disfavor” such motions. INS v. Abudu, 485 U.S. 94, 110 (1988).

Accordingly, the Court reviews the Board’s denial of a motion to reopen for abuse of

discretion with “broad deference” to its decision. Ezeagwuna v. Ashcroft, 325 F.3d 396,

409 (3d Cir. 2003). Thus, in order to succeed on the petition for review, Patel must

ultimately show that the Board’s discretionary decision was somehow arbitrary, irrational,

or contrary to law. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994).

       A motion to reopen proceedings based on changed country conditions “shall state

the new facts that will be proven at a hearing to be held if the motion is granted and shall

be supported by affidavits or other evidentiary material.” § 1003.2(c)(1). Patel’s motion

to reopen was purportedly based on changed country conditions. Patel’s motion stated

that there had been “unfortunate changes for the worst [sic] in India’s political

landscape–where a government is still and becomes more unable to control the religiously

persecuted in Respondent’s situation . . . .” A.R. 11. Patel also included a printout from



   1
     This court’s review does not extend to the BIA’s earlier order, because the petition
for review was only timely as to the order entered on July 31, 2007. See Stone v. INS,
514 U.S. 386, 405 (1995); Nocon, 789 F.2d at 1033-34.

                                             3
an internet blog detailing recent persecution of Christians. We agree with the BIA that

the articles “have not been shown to have any relevance to the respondent’s claim or

demonstrate any increased threat to respondent.” Given the lack of support for his

motion, we find that the Board did not abuse its discretion in denying the motion to

reopen.

       To the extent the motion could be construed as a motion to reconsider, we agree

with the BIA that the motion simply reargued the basis for the appeal and disagreed with

the Board’s conclusions, but did not identify “any material factual or legal errors in the

prior decision that are supported by pertinent authority.” The BIA thus did not abuse its

discretion in denying the motion to reconsider.

       For the foregoing reasons, the petition will be denied.




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