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


5-19-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2119




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                                                             NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                     No. 07-2119
                                     __________

                         ROMA BHAGUBHAI PATEL and
                          NIKHIL BABUBHAI PATEL,
                                       Petitioners

                                          v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                     Respondent

                                     __________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                        BIA Nos. A97 439 831/A97 438 832
                         Immigration Judge: Annie S. Garcy
                                    ___________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                   May 15, 2008
                                   ___________

      Before: McKee and Garth, Circuit Judges, and RODRIGUEZ, District Judge *
                          (Opinion Filed: May 19, 2008)
                                   ___________

                                     OPINION
                                    ___________



      *
      The Honorable Joseph H. Rodriguez, Senior District Judge for the District of
New Jersey, sitting by designation.
GARTH, Circuit Judge:

       Roma Bhagubhai Patel and Nikhil Babhubhai Patel petition for review of a Board

of Immigration Appeals (“BIA”) decision, which affirmed an order of an Immigration

Judge (“IJ”), denying their applications for asylum, withholding of removal, and

protection under the Convention Against Torture. We will deny the petition.

                                             I.

       Roma Bhagubhai Patel and Nikhil Babhubhai Patel are natives and citizens of

India. They are also husband and wife. Mrs. Patel entered the United States in 1998 as a

nonimmigrant visitor, authorized to remain for six months. She remained beyond this

time without authorization. Mr. Patel entered the United States in 1999 as a

nonimmigrant student. He failed to maintain his student status.

       In an attempt to remain in the United States, the Patels sought the assistance of

Pravin Patel (“Pravin”). The Patels purchased various documents from Pravin, such as

United States passports, drivers licenses, and social security numbers. All of these

documents were fraudulent. When the Patels attempted to use one of the documents to

obtain a United States passport, officials discovered the document was not genuine. Mr.

Patel then admitted to the officials that he purchased the documents from Pravin.

       Mr. Patel began cooperating with federal law enforcement officials investigating

Pravin’s false documents ring. Apparently, Pravin contacted Mr. Patel and warned him

that one of his associates said he would “take care of” Mr. Patel if he disclosed


                                            -2-
information about the associate to federal law enforcement officials. Additionally, one

of Mr. Patel’s relatives warned him that Pravin may seek retribution for Mr. Patel’s

cooperation with the officials. Pravin’s whereabouts are currently unknown. Mr. Patel

believes, however, that he may be living in India.

      The Department of Homeland Security (“DHS”) commenced removal proceedings

against the Patels in 2005. The DHS charged that Mrs. Patel was removable under 8

U.S.C. § 1227(a)(1)(B) for remaining in the United States beyond the period authorized.

The DHS further charged that Mr. Patel was removable under 8 U.S.C. §

1227(a)(1)(C)(i) for failing to comply with the conditions of his admission. After

conceding removability, the Patels applied for asylum, withholding of removal, and

protection under the Convention Against Torture. Essentially, the Patels claim they

possess a well-founded fear of persecution in India by Pravin and his associates for

cooperating with federal law enforcement officials.

      The IJ denied the Patels’ applications and ordered them removed to India. The

Patels then appealed to the BIA, which adopted and affirmed the IJ’s decision. This

petition timely followed.

                                            II.

      We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C. §

1252(a)(1). Because the BIA adopted the IJ’s findings and added its own reasoning, we

review both the BIA’s and the IJ’s decisions. Jarbough v. AG of the United States, 483



                                            -3-
F.3d 184, 191 (3d Cir. 2007). We uphold factual determinations if supported by

substantial evidence, Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998), and will

reverse them only if “any reasonable adjudicator would be compelled to conclude to the

contrary,” 8 U.S.C. § 1252(b)(4)(B). We review legal conclusions de novo. Toussaint v.

AG of the United States, 455 F.3d 409, 413 (3d Cir. 2006).

                                             III.

       The Patels first argue that the BIA erred in denying their applications for asylum

because they possess a well-founded fear of future persecution from Pravin in India. To

qualify for asylum based on a well-founded fear of future persecution, an applicant has

the burden to show “that she has a genuine fear, and that a reasonable person in her

circumstances would fear persecution if returned to her native country.” Gao v. Ashcroft,

299 F.3d 266, 272 (3d Cir. 2002). The persecution must be on account of the applicant’s

“race, religion, nationality, membership in a particular social group, or political opinion.”

8 U.S.C. § 1101(a)(42)(A). This Circuit, along with the BIA, has defined persecution “to

include 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).

       Upon reviewing the BIA’s and IJ’s decisions, we find no reversible error. As the

IJ correctly noted in her decision, there is no evidence that Pravin is associated with the

government of India in any way, or that the government is unable or unwilling to control

him. For this reason, their petitions must fail. Gao, 299 F.3d at 272 (stating that, to


                                             -4-
establish eligibility for asylum, an applicant must show that the persecution will be

“committed by the government or forces the government is unwilling or unable to

control.”). Furthermore, as the IJ correctly noted, three years passed between the time

that Pravin first learned of the Patel’s cooperation with federal law enforcement officials

and the date of the Patels’ removal proceedings and that, during that time, the Patels

resided at the same address. There was no evidence, though, that anyone attempted to

harm them during that time. Moreover, the IJ found the Patels’ claims of future

persecution to be unreasonable because they could likely return to India and never be

detected by Pravin due to the country’s large size and immense population. See 8 C.F.R.

§ 208.13(b)(2)(C)(ii) (precluding a finding of a well-founded fear of persecution where

the applicant could avoid persecution by relocating to another part of the country). All of

these findings were supported by substantial evidence.

       The Patels argue, though, that the IJ and BIA erred by not finding that they are

“members of a particular social group” under 8 U.S.C. § 1101(a)(42)(A): namely, “non

criminal informants from India who have cooperated extensively with law enforcement

agencies in the United States.” (Pet. Br. 19.) The BIA rejected this contention, citing its

decision in In re C-A-, 23 I. &. N. Dec. 951, 952 (BIA 2006), which held that “non-

criminal informants [are] not a ‘particular social group.’” We will not disturb this ruling.

Even if the Patels do belong to a particular social group, they have still failed to present

any evidence that the government of India is unable or unwilling to control Pravin or that


                                             -5-
they possess a well-founded fear of persecution. Accordingly, their petition must fail.

       As we have held, the IJ’s and BIA’s denial of asylum may be reversed “only if the

evidence presented by [the petitioner] was such that a reasonable fact finder would have

to conclude that the requisite fear of persecution existed.” INS v. Elias-Zacarias, 502

U.S. 478, 481 (1992). The Patels have not satisfied this burden. Accordingly, the IJ’s

and BIA’s denial of the their asylum applications will not be disturbed.1

                                             III.

       Next, the Patels argue that the BIA’s and IJ’s failure to consider the government’s

obligations under the “state-created danger theory” violated their substantive due process

rights under the Fifth Amendment of the United States Constitution. Under the state-

created danger theory, “the government has a constitutional duty to protect a person

against injuries inflicted by a third-party when it affirmatively places the person in a

position of danger the person would not otherwise have faced.” Kamara v. AG of the

United States, 420 F.3d 202, 216 (3d Cir. 2005). The Patels argue that, by offering to

help the government in its investigation of Pravin, the government had a duty to ensure

that Pravin would not harm them. In Kamara, though, we unequivocally rejected the

applicability of the state-created danger theory in the immigration context. Id. at 217.



       1
        In their briefs, the Patels do not challenge the BIA’s and IJ’s denials of their
applications for withholding of removal and protection under the Convention Against
Torture. Accordingly, those claims have been waived. See Alaka v. AG of the United
States, 456 F.3d 88, 94 (3d Cir. 2006).

                                             -6-
Therefore, we will not grant the petition on this ground.2

                                            IV.

       For the foregoing reasons, we will deny the petition.




       2
        The Patels have moved for a “stay of removal pending resolution of the petition
for review.” Inasmuch as we have denied the Patels’ petition, we will deny their motion
as moot.

                                            -7-
