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


12-6-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1443




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                                    No. 03-1443


                             SAVAR ALLAUDDIN;
                          GULAM SERVER RAHMATH;
                              HARONE JAAVED,

                                                  Petitioners

                                            v.

                         JOHN ASHCROFT, ATTORNEY
                       GENERAL OF THE UNITED STATES,

                                                  Respondent

                                 _______________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                              (Board No. A72-020-034)


                     Submitted Under Third Circuit LAR 34.1(a)
                                 on May 24, 2004


               BEFORE: ROTH and STAPLETON, Circuit Judges, and
                       SCHWARZER,* Senior District Judge


                          (Opinion filed: December 6, 2004)


  *
   The Honorable William W Schwarzer, Senior United States District Judge for the
Northern District of California, sitting by designation.
                                       OPINION




ROTH, Circuit Judge:


        Petitioners seek review of a final order of deportation. For the reasons that follow,

we will deny the petition.

        On December 20, 1998, the Immigration and Naturalization Service (INS)**

charged Sarvar Allauddin, Gulam Sarvar Ramath, and Harone Jaaved with removal under

section 237(a)(1)(B) of the Immigration and Nationality Act (INA), 8 U.S.C. §

1227(a)(1)(B) (2004), for overstaying their visas. Sarvar and Gulam are husband and

wife, and Haron is their son. They are all natives and citizens of India and entered the

United States on August 21, 1988, as non-immigrant B-2 visitors with permission to

remain in the United States for a temporary period not to exceed February 20, 1989. They

remained in the United States beyond that date without proper authorization from the

INS.

        Appearing before the Immigration Judge (IJ) on July 19, 2000, petitioners, through




   **
    We recognize, of course, that the Department of Homeland Security recently took
over the functions of the former INS. For the sake of convenience, and because the INS
was the actor at most times relevant to this appeal, we continue here to refer to the INS.

                                              2
counsel, conceded removability. They sought relief from removal by petitioning for

political asylum, withholding of removal, voluntary departure and withholding of removal

under the Convention Against Torture. Their applications for political asylum were based

on fear of the persecution they would face if forced to return to India. The IJ denied their

applications on the basis of an adverse credibility determination but granted voluntary

departure.

          Petitioners filed a timely notice of appeal with the BIA. In an order issued January

23, 2003, the BIA affirmed the IJ’s decision without opinion. Petitioners filed a timely

petition for review of the BIA’s decision. They allege that the BIA erred by summarily

affirming, without a separate opinion, the removal orders pursuant to the streamlining

regulations of 8 C.F.R. § 3.1(a)(7) (2004).*** They also contend that the IJ incorrectly

decided their applications.

                                                 I.

          Petitioners assert that the BIA committed reversible error because it affirmed the

IJ’s decision without issuing a separate opinion. See id. § 3.1(a)(7)(ii).**** We have

   ***
      Since the time of Petitioners’ appeal to the BIA, the streamlining regulations have
been moved to a different section of Chapter 8 of the Code of Federal Regulations. See
id. § 1003.1(a)(7).
   ****
          Section 3.1(a)(7)(ii) provides, in relevant part:
           The single Board Member . . . may affirm the decision of the . . .
           Immigration Judge, without opinion, if the Board Member determines that
           the result reached in the decision under review was correct; that any errors
           in the decision under review were harmless or nonmaterial; and that
           (A) the issue on appeal is squarely controlled by existing Board or federal

                                                 3
jurisdiction over final orders of removal issued by the BIA pursuant to 8 U.S.C. § 1252

(2004). After the Petitioners filed their petition for review of the BIA order, this Court

held that the streamlining regulations and the BIA’s authority to issue an order affirming

the IJ’s order without a separate opinion does not violate the INA or the United States

Constitution. Dia v. Ashcroft, 353 F.3d 228, 234-45 (3d Cir. 2003) (en banc). “The fact

that the review is done by one member of the BIA and that the decision is not

accompanied by a fully reasoned BIA decision may be less desirable from the petitioner’s

point of view, but it does not make the process constitutionally ‘unfair.’” Id. at 243-44.

Therefore, the mere fact that the BIA streamlined the appeal is not reversible error.

                                             II.

       Petitioners also argue that their applications were wrongly decided. Where the

BIA adopts the Immigration Judge’s decision as its own, we review the merits by

reviewing the Immigration Judge’s decision as the final decision of the agency.” Chen v.

Ashcroft, No. 02-2978, 2004 WL 362287, at *802 (3d Cir. Feb. 25, 2004).

       To be granted asylum as refugees, applicants must establish that they are unable to

return to their homeland “because of persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular social group, or political



      court precedent and does not involve the application of precedent to a novel
      fact situation; or
      (B) the factual and legal questions raised on appeal are so insubstantial that
      three-Member review is not warranted.
8 C.F.R. § 3.1(a)(7)(ii).

                                              4
opinion.” 8 U.S.C. § 1101(a)(42) (2004). Whether an applicant has demonstrated

“persecution” or a “well-founded fear of persecution” is a factual determination reviewed

under the substantial evidence standard. Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir.

2001). Under this standard, we will uphold findings of fact to the extent they are

“supported by reasonable, substantial, and probative evidence on the record considered as

a whole.” Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998) (internal quotation

and citation omitted). Similarly, adverse credibility determinations are also reviewed for

substantial evidence, see Dia, 353 F.3d at 247, and must be upheld unless “any reasonable

adjudicator would be compelled to conclude to the contrary.” Gao v. Ashcroft, 299 F.3d

266, 272 (3d Cir. 2002) (citing INA § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B)) (internal

quotation omitted). Only discrepancies that “involve the heart of the asylum claim” can

support an adverse credibility finding. Id. “[M]inor inconsistencies” do not provide an

adequate basis for an adverse credibility finding. Id.

       We have reviewed the record in its entirety and find substantial evidence to

support the adverse credibility determination. Petitioners argue that, because they are

Muslim, they will be persecuted by the primarily Hindu population if returned to India.

However, when Allauddin, the father, testified before the IJ, he did not provide any

specific or substantial evidence of past persecutions. As the IJ noted, Allauddin “paint[s]

with . . . [a] broad brush.”

       Allauddin alleged that, throughout his life, the Hindu majority harmed him,



                                             5
discriminated against him, harassed him, persecuted him, and threatened his life.

Nevertheless, Allauddin was a flight attendant for the government-run India Airlines for

seven and a half years before moving to the United States. During this time, Allauddin

received complimentary airline tickets to the United States. When Allauddin did finally

decide to leave India in May 1987, he remained in the United States for only a short

period of time. On this first trip, he came alone, without his wife and son. After

returning to India for a couple of months, Allauddin decided to return to the United

States. In November 1987, he did so, accompanied by his wife and son. Inconsistent

with Allauddin’s testimony regarding how bad things were for him as a Muslim in India,

Allauddin decided to take his family back to India after only a few months in the United

States. Again this is inconsistent with Allauddin’s testimony about past persecutions of

himself and his family. If petitioners were truly fearful of being persecuted in India, it is

difficult to understand why they would return to the country they feared so much.

Petitioners ultimately returned to the United States in August 1988 and have been here

ever since.

       Allauddin’s testimony was also inconsistent with the State Department’s 1996

report on India, Comments on Country Conditions and Asylum Claims, and with

petitioners’ asylum application. The 1996 Country Report states that “[a]pproximately

100 million Muslims lead productive lives in India. They live, work and worship without

interference by the Government.” The IJ found that petitioners’ vague allegations of



                                              6
persecution were inconsistent with the specific findings of the Department of State. In

their application for asylum, they made no claim that they had been beaten by Hindus or

that they had received threats against their lives. These inconsistencies go to the heart of

their asylum claims and would not compel any reasonable factfinder to find that their

claims were credible.

                                             III

       For the foregoing reasons, we will deny the petition for review.




                                              7
