                        NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   File Name: 14a0782n.06

                                                   Case No. 13-4434

                                  UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                                                                                              FILED
                                                                                                    Oct 15, 2014
WOULSTAIN STEPHEN CREADO;                                         )                            DEBORAH S. HUNT, Clerk
ESTHER MARIA D’SOUZA,                                             )
                                                                  )
           Petitioners,                                           )        ON PETITION FOR REVIEW
                                                                  )        FROM THE UNITED STATES
v.                                                                )        BOARD   OF  IMMIGRATION
                                                                  )        APPEALS
ERIC HOLDER, JR., ATTORNEY                                        )
GENERAL,                                                          )
                                                                  )
           Respondent.                                            )

____________________________________/


Before: Merritt, White, and Donald, Circuit Judges.

           MERRITT, Circuit Judge. In this immigration case, petitioners Woulstain Stephen

Creado1 and Esther Maria D’Souza, a married couple,2 seek review of a decision of the Board of

Immigration Appeals dismissing their appeal from an immigration judge’s denial of petitioners’

application for asylum, withholding of removal and relief under the Convention Against Torture.

Petitioners do not appeal the dismissal of their application for asylum, which was denied on the

ground of untimeliness. Board of Immigration Appeals Decision at 2 (Jan. 15, 2010).




1
    Petitioner Creado’s first name is alternatively spelled “Woulstein” in the briefs filed by his counsel.
2
    Creado is the lead applicant and his wife, D’Souza, a derivative beneficiary.
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       Petitioners are natives of Kuwait but citizens of India, where most of their extended

family still lives.   Creado entered the United States in 2003, and D’Souza in 2004, as

nonimmigrants on student visas. They have two children, both of whom are citizens of the

United States. Petitioners concede removability to India. Petitioners alleged they would be

persecuted in India due to their Catholic religion by two groups: (1) by Catholics, including,

primarily, their immediate families, for bearing one child out of wedlock and not having married

in the Catholic Church, and having a second child after a civil wedding, and (2) by Hindus, who

comprise the majority religion in India.

       The Supreme Court pointed out in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), that

Congress created two separate and distinct standards permitting otherwise-deportable aliens to

remain in the United States: (1) the standard for “withholding of removal” under 8 U.S.C.

§ 1253(h) of the Immigration and Nationality Act of 1980; and (2) the standard for “asylum”

under 8 U.S.C. § 1158(a), codifying the Refugee Act of 1980. Here, petitioners are ineligible for

asylum consideration because they filed beyond the applicable one-year limitation for asylum.

Therefore, the questions before us are whether they are eligible for “withholding of removal”

under the standard that “it is more likely than not that the alien would be subject to persecution,”

or relief under the Convention Against Torture.

       For the reasons that follow, we deny the petition for review.

                                                  I.

       Creado and D’Souza testified before an immigration judge that they are practicing

Catholics. They acknowledged a long-standing dispute with their parents in India over the fact

that their first child was born out of wedlock. Even though they were legally married at the time

their second child was born, petitioners have not told their families about the birth of their


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second child. Because they were not married in the Catholic Church, their families do not

recognize their marriage and would consider their second child also to have been born out of

wedlock. Creado testified that he is afraid that his father will harm him, his wife and children if

he returns to India. Specifically, he testified that after the birth of their first child, his father

threatened to fly to the United States and harm them, but he never did. Creado Decl., Ex. H to

Motion to Reopen (Feb. 12, 2010). Creado testified that his father has a violent temper and is

well connected with corrupt officials in Bombay (also known as Mumbai) who would be unable

or unwilling to control his father if he tried to harm petitioners or their children. Hr’g Tr. at 22-

23, Oct. 22, 2007; see also Creado Decl., Ex. H to Motion to Reopen. Petitioners also testified

that Hindus in India will persecute them based on their Catholic religion. Petitioners submitted

documentary evidence of violence against Christians in some parts of India.

        After their first appearance before an immigration judge, the judge denied relief, finding

that the primary reason for fear of future persecution arose from Creado’s fear of his own

family’s disapproval of the fact that his children were born out of wedlock. Oral Decision of

Immigration Judge at 11 (Apr. 17, 2008). The immigration judge also found that petitioners did

not carry their burden of showing that the Indian government would not protect them either from

Hindus or from their family members. Id. at 12-13. In addition, the immigration judge found

that Creado’s father was no longer living in India and petitioners could safely move to another

part of India to escape their families. Id. at 5.

        The denial was upheld by the Board of Immigration Appeals on January 15, 2010, and

petitioners filed a motion to reopen to supplement the record regarding persecution of Christians

by Hindus in India. On reconsideration, the Board remanded the case to an immigration judge to




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consider additional evidence in support of petitioners’ contention that Catholics are persecuted in

India. Order of the Board of Immigration Appeals (July 20, 2010).

       On remand, petitioners submitted documentation from 2008-2010 that reported isolated

acts of violence against Christians in India, including the 2010 Department of State International

Religious Freedom Report. Motion to Reopen, Exs. D&G (Feb. 12, 2010). Creado testified that

he did not believe he or his wife and children could be safe in any part of India and he did not

think that the government would protect them if they were ever threatened. Hr’g Tr. at 19, 25

(Dec. 2, 2011).

       After remand, a different immigration judge determined that the additional evidence did

not establish that “it is more likely than not” that petitioners would be subject to persecution

based on their religion.    Decision of the Immigration Judge (May 14, 2012).           The judge

considered the State Department’s 2010 International Religious Freedom Report for India, the

2011 Background Note for India and the 2010 Human Rights Report for India in his decision.

The reports show that there are some isolated incidents where Christians in India have been

attacked by Hindus in rural areas. The immigration judge noted that the reports did not mention

incidents of persecution toward couples not married in the church or who had children out of

wedlock.

       On appeal, the Board concurred that the evidence submitted on remand, as well as the

record as a whole, did not demonstrate that it is “more likely than not” that petitioners would be

subject to persecution on account of their Catholic religion and dismissed Creado’s appeal.

Decision of the Board of Immigration Appeals (Nov. 18, 2013). It held that, while the record

demonstrated that there is some violence against Christians in India, the evidence is insufficient

to establish that the government was unable or unwilling to protect petitioners from their families


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or their families’ associates. The Board also determined that petitioners failed to meet the

eligibility requirements for relief under the Convention Against Torture because they did not

establish that the Indian government would acquiesce to any torture. Petitioners filed a timely

petition for review of the Board’s decision with this Court.

                                                     II.

       We review immigration decisions for substantial evidence, considering whether they are

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

whole. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Yu v. Ashcroft, 364 F.3d 700, 702 (6th

Cir. 2004).

   A. Withholding of Removal

        To establish eligibility for withholding of removal, an alien must show a clear

probability that, if she was removed to her native country, her “life or freedom would be

threatened” on a protected ground. 8 U.S.C. § 1231(b)(3)(A) (2006); Zoarab v. Mukasey,

524 F.3d 777, 782 (6th Cir. 2008). A “clear probability” means that it is more likely than not

that the alien would be subject to persecution. INS v. Stevic, 467 U.S. 407, 429–30 (1984). If the

applicant establishes past persecution, it is presumed that her life or freedom would be threatened

on account of a protected ground. 8 C.F.R. § 1208.16(b)(1) (2012). A determination regarding

eligibility for withholding of removal is conclusive if supported by substantial evidence on the

record considered as a whole. Elias–Zacarias, 502 U.S. at 481.

       Petitioners do not dispute that they have not shown any past persecution and therefore

have the burden of showing it is “more likely than not” that they would be persecuted in the

future based on a protected ground. 8 C.F.R. § 1208.16(b)(2). Petitioners also fail to meet their

burden if they could avoid future threat to life or freedom “by relocating to another part of


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[India], and, under all the circumstances, it would be reasonable to expect the applicant to do so.”

8 C.F.R. § 1208.16(b)(2). If the fear of persecution comes from non-government actors, as here,

petitioners must show that the government is unable or unwilling to protect them. Khalili v.

Holder, 557 F.3d 429, 436 (6th Cir. 2009).

        To establish eligibility for withholding of removal, petitioners must first establish that

any mistreatment would be based on a protected ground. Petitioners contend that they would be

mistreated by their family members, and perhaps other Catholics in the community, because they

bore children out of wedlock. Petitioners argue that they are entitled to relief because they

belong to a religious or social group that violates traditional Catholic values, but they concede

that their families’ displeasure relates to embarrassment or feeling disgraced based on their

children’s behavior. Creado testified that the Catholic beliefs of the two families were offended

by the birth of petitioners’ first child out of wedlock. Although petitioners were legally married

by the time their second child was born, because they had not married in the Catholic Church,

they contend that their families would view the birth of the second child as an out-of-wedlock

birth as well.

        Personal disputes cannot support a claim for withholding of removal. Klawitter v. INS,

970 F.2d 149, 152-53 (6th Cir. 1992). So, while the treatment by their families may be related to

petitioners’ violation of traditional Catholic values, and is arguably loosely tied to religion, the

dispute is more in the nature of a personal dispute among family members than a targeted attack

based on certain religious views, or lack thereof. We have previously held that it is necessary to

examine a petitioner’s overall cultural context to determine the basis for any mistreatment. Al-

Ghorbani v. Holder, 585 F.3d 980, 997-98 (6th Cir. 2009) (culture permits, or encourages,

aggrieved father to kill an individual who defies father’s wishes by marrying daughter).


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       Creado failed to show that the proposed group of persons with children born out of

wedlock is socially visible and sufficiently particular to warrant protection. Creado presented

almost no evidence of how Indian society views the proposed group. His testimony focused,

rather, on how his family views petitioners because they are the parents of two children born out

of wedlock, not how Indian society generally would perceive petitioners and others in a similar

position. Creado did not describe experiences being persecuted or shunned by anyone in India

other than his family. We also note that the immigration judge found that Creado’s father was no

longer living in India, thereby minimizing any perceived or actual threat from him.             Oral

Decision of Immigration Judge at 5 (Apr. 17, 2008).

       In addition, Creado did not demonstrate that the government of India was unwilling or

unable to protect him and his family. This is a matter where Creado is involved in a personal

feud with his family over the circumstances of his children’s birth. There is little evidence that

Creado or his wife or children would be mistreated by the government of India, nor is there any

evidence that their families in India are or would be acting with the consent or acquiescence of

the government, or that the government would be unwilling to protect them from their families.

       As to the alleged persecution by Hindus, petitioners do not claim that they suffered past

persecution; rather, they contend that they have demonstrated a clear probability of persecution if

they return to India based on a pattern or practice of persecuting Christians. To succeed on a

pattern or practice claim, the petitioners must show that there is a pattern or practice of

persecution of persons similarly situated to them and that it is more likely than not that their life

and freedom would be threatened upon their return because they are members of the group. See

8 C.F.R. § 208.16(b)(2)(i)-(ii).




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          The record demonstrates that the Department of State recognized there was some

violence against minority religions in India, including Christians. However, according to the

2010 State Department International Religious Freedom Report, which was considered by the

immigration judge and the Board, these incidents are sporadic and isolated and the Indian

government does not condone any acts of violence against Christians. The State Department

Report also emphasized that religious diversity is tolerated across most of India. Importantly,

Creado testified that no member of his family living in India had ever been threatened or harmed

on account of their Catholic faith. Hr’g Tr. at 23-24 (Dec. 2, 2011).

          Additionally, according to State Department reports, the secular Indian constitution

guarantees religious freedom to all its citizens. Due to ineffective or corrupt law enforcement,

some Indian states do not consistently and vigorously protect religious freedom. However, in

recent years, the national government has invested increasing resources in guaranteeing the

consistent enforcement of laws protecting minority faiths in all parts of India. U.S. Dep’t of

State, Int’l Religious Freedom Report 2010. Substantial evidence therefore supports the Board’s

finding that Creado failed to establish a pattern or practice of persecution against Catholics in

India such that it is more likely than not his life and freedom would be threatened. We note also

that more recent reports from the State Department continue to report efforts by the Indian

government to denounce any violence or lack of tolerance against Christians. See 2013 State

Department’s International Religious Freedom Report; 2013 State Department Report on Human

Rights.

   B. Convention Against Torture

          Petitioners also claim that they are eligible for relief under the Convention Against

Torture. To qualify for protection under the Convention Against Torture, a petitioner bears the


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burden of showing that “it is more likely than not that he or she would be tortured if removed to

the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). To state a prima facie case for

relief, petitioners must show that they will be subject to “severe pain or suffering, whether

physical or mental . . . by or at the instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.” Id. § 1208.18(a)(1). A public official

acquiesces to torture if, “prior to the activity constituting torture, [the official] ha[s] awareness of

such activity and thereafter breach[es] his or her legal responsibility to intervene to prevent such

activity.” Id. § 1208.18(a)(7).

        We conclude that substantial evidence supports the finding that it is not more likely than

not that petitioners will face torture by or at the acquiescence of Indian public officials. As

outlined above, we recognize that the record contains evidence of isolated incidents of

harassment, persecution and violence against Christians. We cannot conclude, however, that the

record compels a finding that government officials caused or breached their responsibility to

intervene to prevent such activity.

        For the foregoing reasons, the petition for review is denied.




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