         09-0102-ag
         Ghotra v. Holder
                                                                                         BIA
                                                                                    Videla, IJ
                                                                                A 073 418 186
                                                                                A 075 330 325
                                                                                A 075 330 326
                                                                                A 075 330 327
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
     AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
     ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
     “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
     TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
     BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
     PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
     ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
     DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 1            At a stated term of the United            States Court of Appeals
 2       for the Second Circuit, held at the            Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl            Street, in the City of
 4       New York, on the 5 th day of January,           two thousand ten.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                BARRINGTON D. PARKER,
 9                GERARD E. LYNCH,
10                          Circuit Judges.
11       ______________________________________
12
13       TARSEM SINGH GHOTRA, SWARN KAUR
14       GHOTRA, KULVINDER SINGH GHOTRA, AND
15       JASVINDER SINGH GHOTRA
16                Petitioners,
17                 v.                                           09-0102-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL, *
21                Respondent.
22       ______________________________________

                  *
               Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Eric H. Holder, Jr., is
         automatically substituted for former Attorney General
         Michael B. Mukasey as respondent in this case.
 1   FOR PETITIONERS:          Saul C. Brown, New York, New York.
 2
 3   FOR RESPONDENT:           Tony West, Assistant Attorney
 4                             General; John S. Hogan, Senior
 5                             Litigation Counsel; Kathleen Kelly
 6                             Volkert, Attorney, Office of
 7                             Immigration Litigation, United
 8                             States Department of Justice,
 9                             Washington, D.C.
10
11       UPON DUE CONSIDERATION of this petition for review of a

12   Board of Immigration Appeals (“BIA”) decision, it is hereby

13   ORDERED, ADJUDGED, AND DECREED, that the petition for review

14   is DENIED.

15       Petitioners, natives and citizens of India, seek review

16   of a December 12, 2008 order of the BIA affirming the May

17   15, 2007 decision of Immigration Judge (“IJ”) Gabriel C.

18   Videla, which denied their applications for asylum,

19   withholding of removal, and relief under the Convention

20   Against Torture (“CAT”).     In re Tarsem Singh Ghotra, Swarn

21   Kaur Ghotra, Kulvinder Singh Ghotra, Jasvinder Singh Ghotra,

22   Nos. A 073 418 186, A 075 330 325, A 075 330 326, A 075 330

23   327 (B.I.A. Dec. 12, 2008), aff’g Nos. A 073 418 186, A 075

24   330 325, A 075 330 326, A 075 330 327 (Immig. Ct. N.Y. City

25   May 15, 2007).     We assume the parties’ familiarity with the

26   underlying facts and procedural history in this case.

27       When the BIA adopts the decision of the IJ and


                                     2
1    supplements the IJ’s decision, we review the decision of the

2    IJ as supplemented by the BIA.    See Yan Chen v. Gonzales,

3    417 F.3d 268, 271 (2d Cir. 2005).    We review the agency’s

4    factual findings under the substantial evidence standard.

5    8 U.S.C. § 1252(b)(4)(B); see also Manzur v. DHS, 494 F.3d

6    281, 289 (2d Cir. 2007).   We review de novo questions of law

7    and the application of law to undisputed fact.    See

8    Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

9    I.   Tarsem Singh Ghotra

10        After initially having been granted asylum, Tarsem

11   Singh Ghotra’s asylee status was terminated upon a finding

12   that he had committed fraud in his initial asylum

13   proceeding.   After a second asylum hearing, the IJ found

14   Ghotra not credible.   We find no error in that

15   determination.

16        As a preliminary matter, Ghotra does not challenge the

17   IJ’s findings that: (1) his testimony that only Swarn,

18   Kulvinder, and Jasvinder were included in his application

19   for adjustment of status was inconsistent with his statement

20   that he signed the application while it was blank and never

21   reviewed it; (2) his testimony that Dalvir Ghotra was his

22   nephew’s “true and correct name” was inconsistent with a


                                   3
1    fingerprint check proving the nephew’s name to be “Jasvir

2    Singh”; (3) his testimony on direct examination that he did

3    not know how his new attorney could have obtained Dalvir’s

4    name and birth date in order to prepare the fraudulent birth

5    certificate was inconsistent with his testimony on cross

6    examination that the attorney ordered his file from a

7    previous attorney; and (4) his testimony that his family

8    moved to Punjab after he fled India was inconsistent with

9    Swarn and Jasvinder’s testimony that the family remained in

10   Delhi during that time.    Accordingly, those findings stand

11   as valid bases for the IJ’s adverse credibility

12   determination.    See Shunfu Li v. Mukasey, 529 F.3d 141, 146

13   (2d Cir. 2008).

14       Ghotra argues that, in finding him not credible, the IJ

15   erred by relying on several instances of fraud.    However, as

16   we have made clear, an adverse credibility determination may

17   be based on the applicant’s submission of a false document

18   as evidence in an asylum proceeding.    See Siewe v. Gonzales,

19   480 F.3d 160, 170 (2d Cir. 2007) (once an IJ concludes that

20   a document is false, he or she is “free to deem suspect

21   other documents (and to disbelieve other testimony) that

22   depend for probative weight upon [the applicant’s]


                                    4
1    veracity”).    Here, the IJ found that Ghotra: (1)

2    fraudulently included Dalvir Ghotra as his son on his asylum

3    application; (2) falsely testified that Dalvir was his son

4    at his asylum interview; and (3) submitted a fraudulent

5    birth certificate for Dalvir with his asylum application.

6    Given this fraudulent testimony and evidence, the IJ was

7    free to disbelieve the balance of Ghotra’s claim.      See id.

8    Accordingly, substantial evidence supports the IJ’s adverse

9    credibility determination.     See Corovic v. Mukasey, 519 F.3d

10   90, 95 (2d Cir. 2008).    Because Ghotra failed to establish

11   his eligibility for asylum due to his lack of credibility,

12   he also failed to meet the higher standard required for

13   withholding of removal.    See Paul v. Gonzales, 444 F.3d 148,

14   156 (2d Cir. 2006).

15   II.   The Remaining Petitioners

16         Although the IJ did not make an adverse credibility

17   determination with respect to the remaining petitioners, the

18   IJ reasonably found that they failed to establish either

19   past persecution or an objectively reasonable fear of future

20   persecution.    Swarn Ghotra testified that she was “bothered”

21   by her neighbors for being a Sikh, but stated that she was

22   never physically mistreated.      Furthermore, Kulvinder and


                                     5
1    Jasvinder testified that they were harassed by the police,

2    but Jasvinder stated that the harassment occurred only twice

3    in the seventeen years he lived in India, and neither

4    sibling was ever arrested, beaten, or detained by police.

5    Such “mere harassment” does not rise to the level of

6    persecution.   Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d

7    332, 341 (2d Cir. 2006).

8        To establish asylum eligibility absent a showing of

9    past persecution, an applicant must show that he or she

10   subjectively fears persecution and that this fear is

11   objectively reasonable.    Ramsameachire v. Ashcroft, 357 F.3d

12   169, 178 (2d Cir. 2004).    A fear is objectively reasonable

13   “even if there is only a slight, though discernible, chance

14   of persecution.” Diallo v. INS, 232 F.3d 279, 284 (2d Cir.

15   2000) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 431

16   (1987)).   On the other hand, a fear is not objectively

17   reasonable if it lacks “solid support” in the record and is

18   merely “speculative at best.” Jian Xing Huang v. INS, 421

19   F.3d 125, 129 (2d Cir. 2005).

20       The IJ found no evidence indicating that Swarn Ghotra

21   would be persecuted if returned to India.    The IJ also found

22   that Kulvinder and Jasvinder did not establish a well-


                                     6
1    founded fear of future persecution because: (1) there was no

2    evidence that the police would remember them or their father

3    some ten years after they fled India; and (2) they no longer

4    wore long hair and beards, identifying characteristics of

5    Sikhs in India.    The IJ also found that Kulvinder’s claim

6    that the police would remember him because he had a “record”

7    was undermined by his father’s testimony that the Punjab

8    police reported to the Delhi police that he was not a

9    criminal.    Finally, the IJ found no pattern or practice of

10   persecution against Sikhs in India, observing that: (1)

11   India elected a Sikh prime minister in 2004; (2) the 2006

12   State Department Country Report on India did not discuss any

13   instances in which Sikhs were persecuted; and (3) the 1999

14   Country Report on India noted that the U.N. found a “climate

15   of religious tolerance” in India.     Therefore, the IJ

16   reasonably concluded that the petitioners’ claims were

17   “speculative at best,” and thus did not err in rejecting

18   their applications for asylum.     Jian Xing Huang, 421 F.3d at

19   129.

20          The IJ also did not err in finding that, because the

21   petitioners were unable to show the objective likelihood of

22   persecution needed to make out an asylum claim, they were

23   necessarily unable to meet the higher standard required to

                                    7
1    succeed on a claim for withholding of removal.   See Paul,

2    444 F.3d at 156.   Petitioners do not challenge the agency’s

3    denial of their claims for CAT relief.

4        For the foregoing reasons, the petition for review is

5    DENIED.   As we have completed our review, any stay of

6    removal that the Court previously granted in this petition

7    is VACATED, and any pending motion for a stay of removal in

8    this petition is DISMISSED as moot. Any pending request for

9    oral argument in this petition is DENIED in accordance with

10   Federal Rule of Appellate Procedure 34(a)(2), and Second

11   Circuit Local Rule 34(b).

12                               FOR THE COURT:
13                               Catherine O’Hagan Wolfe, Clerk
14
15
16                               By:___________________________




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