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


11-24-2004

Patel v. Secretary Homeland
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3952




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"Patel v. Secretary Homeland" (2004). 2004 Decisions. Paper 119.
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                                                             NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              _______________

                                     No. 03-3952
                                  ________________

                    YOGESH KUM AR JASHUBHAI PATEL,

                                                      Petitioner
                                        v.

             SECRETARY OF DEPARTMENT OF HOMELAND SECURITY

                     On Petition for Review of a Final Order of the
                            Board of Immigration Appeals
                               (Board No. A79-447-939)
                     ____________________________________


                     Submitted Under Third Circuit LAR 34.1(a)
                               November 18, 2004
                Before: ROTH, SMITH and BECKER, Circuit Judges


                              (Filed November 24, 2004)

                             _______________________

                                    OPINION
                             _______________________

BECKER, Circuit Judge.

      This is a petition by Yogesh Kumar Jashubhai Patel for review of the final order of

the Board of Immigration Appeals (BIA) denying his applications for asylum,

withholding of removal and protection under the Torture Convention (CAT). Patel’s
brief to the Board is couched in terms of an argument that Patel is entitled to asylum,

mentioning the CAT only in a conclusory fashion. As a result, the Attorney General

argues that we lack jurisdiction to review Patel’s request for CAT protection because he

failed to exhaust his administrative remedies with respect to the CAT claim. See

Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003). We agree. However, and

at all events, there is no merit to his petition, for the Immigration Judge (IJ) acted

reasonably in concluding that Patel did not show that he would be tortured if he returned

to India.1

       The IJ’s finding that an alien is ineligible for protection under the CAT must be

affirmed if substantial evidence supports the conclusion that the alien failed to prove a

clear probability of torture if returned to the country of removal. See INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992); Wang v. Ashcroft, 368 F.3d 346, 349-50 (3d Cir.

2004) (applying the substantial evidence standard on review of a CAT claim). Under this

standard, the IJ’s determination that an alien is not eligible for protection under the CAT

must be upheld unless the evidence presented “was so compelling that no reasonable

factfinder could fail to find” the requisite probability of persecution or torture. Elias-

Zacarias, 502 U.S. at 483-84 (emphasis added). Patel does not come close to meeting the

exacting standard. Patel is a Hindu who claims that he would be tortured by Muslims if

  1
    There is also no merit to Patel’s contention that the BIA, which affirmed the order of
the IJ under its streamlining procedures, abused its discretion because it failed to provide
a reasoned explanation for its decision. We rejected this argument in Dia v. Ashcroft, 353
F.3d 228, 236-38 (3d Cir. 2003) (en banc).

                                               2
forced to return to India. There is evidence that Patel had on occasion been threatened by

Muslims in India, and that, on one occasion, thirty-five Muslims came to his father’s

house while the family was sleeping and burned the house down. However, we agree

with the IJ that the harassment and discrimination Patel experienced at the hands of

Muslims in India was not sufficient to rise to the level of past persecution, and thus did

not create a presumption that Patel’s life or freedom would be threatened if returned to

India, much less a presumption that he would be tortured. We also agree that he

independently failed to establish that it was more likely than not that he would be tortured

(or persecuted) if returned to his home country. Indeed, as the IJ noted, Patel is a Hindu

from a predominately Hindu country and that “it is inconceivable that the [Petitioner]

would not be able to obtain protection from the government were he to be harmed or

injured by Muslims.”

       The petition for review will be denied.




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