Bathula v. Holder

• Decision Date: 25 July 2013
• Docket Number: 12–2596.,Nos. 11–3622,s. 11–3622
• Citation: 723 F.3d 889
• Parties: Daya Dinkar BATHULA, et al., Petitioners, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

723 F.3d 889

Daya Dinkar BATHULA, et al., Petitioners,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

Nos. 11–3622, 12–2596.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 12, 2013.

Decided July 25, 2013.

Christina Joan Murdoch (argued), Scott D. Pollock, Attorneys, Pollock & Associates, Chicago, IL, for Petitioners.

Katharine Clark (argued), Attorney, OIL, Attorney, Russell J. Verby, Attorney, Department of Justice, Washington, DC, for Respondent.

Before RIPPLE and TINDER, Circuit Judges, and ZAGEL, District Judge. ^*

RIPPLE, Circuit Judge.

Daya Dinkar Bathula and her husband, Bathula Dinkar Christopher Reddy, citizens of India, applied for asylum in separate affirmative applications before the Asylum Office. They claimed that their family had been subjected to persecution at the hands of a local criminal group after Mr. Reddy testified against certain of its members on trial for murder. The asylum applications were denied by the Department of Homeland Security (“DHS”). In removal proceedings, they together renewed their request for asylum and alternatively requested withholding of removal and relief under the Convention Against Torture (“CAT”). The immigration judge (“IJ”) denied relief and ordered them removed to India, and the Board of Immigration Appeals (“BIA” or “Board”) adopted and affirmed the IJ's decision. Thereafter, they sought reopening before the Board on the basis of ineffective assistance of counsel, and the Board again denied relief. They now petition for review of both the initial final order of removal of the Board and the order denying reopening. For the reasons set forth in this opinion, we deny their petitions.

IBACKGROUND

A. Facts

Mr. Reddy and Ms. Bathula are citizens of India and former residents of the town of Madhapur in the state of Andhra Pradesh. They have two adult children, a son and a daughter. In India, Ms. Bathula was a trained preschool teacher and worked in the home; Mr. Reddy studied law, worked in real estate and, beginning in roughly 1991, became active in the local politics of a regional party, the Telugu Desam Party (“TDP”). Mr. Reddy rose through the local ranks of the TDP, eventually attaining the position of a “legal cell general secretary.” ¹ His party work occurred on a daily basis, without compensation, and totaled a few hours a week, while his real estate business provided his living.² His position afforded him a degree of influence over public matters. Because of his position, he also sometimes attemptedto mediate private disputes as a representative of the TDP.

A “land mafia” had been active in Mr. Reddy's area of the country since the 1990s.³ According to Mr. Reddy's description, the land mafia illegally “grab[s]” public land to sell on the private market.⁴ Their precise workings are not clear from the record, but it is clear that they use illegal means to acquire land, sometimes with the complicity of government officials. They also capitalize on the inefficiencies of the Indian judicial system, knowing that any challenge to particular land actions requires a complainant to institute a civil action that is likely to languish over some period of years, even if it would eventually be resolved against them. ⁵ By the early 2000s, the land mafia operating in Mr. Reddy's town consisted of twenty to thirty individuals, including a man named Arjun, who was also a TDP official.

Allah Baksh,⁶ a neighbor of Mr. Reddy's, began complaining that the land mafia had constructed, on a public road, a shop that partially blocked the entrance to Baksh's home. He initiated legal proceedings against Arjun, and Mr. Reddy unsuccessfully attempted to arbitrate the dispute on behalf of the TDP. Baksh eventually obtained an order to demolish the shop Arjun had built, and, on January 28, 2002, when municipal officials came to accomplish the demolition, several hundred people were watching. Baksh walked out of a store near his home, and Arjun and his men pursued him. Mr. Reddy and dozens of others witnessed Arjun and his companions murder Baksh using construction stones.

Mr. Reddy had reservations about testifying in the ensuing legal proceedings. Nevertheless, he and more than twenty other individuals ultimately agreed to cooperate with the investigation and to testify against Arjun and the mafia. Mr. Reddy claims that he was motivated by a desire to take a firm stance on crime. Prior to the trial, he was interviewed by a television station regarding the murder, and the evening report made his name and face public. Mr. Reddy soon began receiving threats: He received anonymous calls roughly twice a week telling him that he was “finished”; ⁷ twice rocks were thrown into his home compound; and people twice knocked on his door in the middle of the night and ran. He made complaints to the police about the threats. The land mafia also attempted to bribe him to persuade Baksh's widow to accept a compromise and drop the criminal case. He declined and reported the pressure to the authorities.

Ms. Bathula also was targeted. She was trailed by Arjun's associates five or six times and ultimately elected to remain in the house for safety.

In February 2003, Mr. Reddy testified against Arjun and his cohort. He was the only original witness who had not been persuaded by bribe or threat to recant. The men were convicted and sentenced to life imprisonment, but have since been released.

Following his testimony, the pressure on Mr. Reddy and his family continued. He was run off the road by another vehicle that deliberately had crashed into him, and he was stopped on the street and again threatened that he would be “finished.”

Throughout this period, Mr. Reddy had been given significant police protection from the threat of harm by Arjun and his associates. At certain times—the week after trial, holidays, furlough periods for prisoners, crowded festivals—police would remain at his home around the clock. Mr. Reddy testified that, “[a]s a TDP member, [he] had a little leverage in the police department,” and so the police “would help [him] if [he] ha[d] some trouble.” ⁸

In May 2004, Ms. Bathula came to the United States for a wedding, intending to stay three months. At about the same time, national elections were held, and the Congress Party, which is not allied with the TDP, took power. The new Congress government removed the former police official that had authorized the assistance to Mr. Reddy and his family, and Mr. Reddy felt that the family's safety could not be assured. He therefore instructed Ms. Bathula to remain in the United States.

Mr. Reddy traveled to the United States in June of 2006 on a visitor's visa.

B. Removal Proceedings1. Proceedings Before the IJ

In November 2004, a few weeks before the expiration of her visitor's visa, Ms. Bathula filed an asylum application based on the events surrounding Baksh's murder and the trial at which Mr. Reddy had testified. Ms. Bathula's application was denied, and she was placed in removal proceedings.

In June 2006, Mr. Reddy was admitted to the United States as a visitor. Five months later, he filed his own asylum application, on which he included Ms. Bathula as a derivative. In early 2007, his application also was denied, and he was placed in removal proceedings.

Before the IJ, the separate proceedings involving Ms. Bathula and Mr. Reddy were consolidated. Ms. Bathula and Mr. Reddy filed an updated application requesting asylum, withholding of removal and CAT relief. In two hearings held two-and-one-half years apart, the petitioners presented evidence in support of their claims. Ms. Bathula and Mr. Reddy were the only witnesses.

In addition to the facts set forth above, the petitioners' written submissions and testimony also addressed several other subjects. Mr. Reddy claimed that during the two years following Ms. Bathula's entry into the United States, he remained in India in hiding, moving among relatives' houses and staying away from his own home. He admitted that he was not harassed in these locations. He stated that he was forced to leave one relative's home in the state of Goa upon learning of a plot by the land mafia to find him. The Reddy home was vacant during this period, and in 2005, when their daughter briefly returned, she alerted the police that it had been broken into, jewelry and valuables stolen, and a rod-like weapon left on the bed. Ms. Bathula also testified about an incident involving their daughter in which men associated with the land mafia unsuccessfully attempted to kidnap her; ⁹ Ms. Bathula's testimony regarding the details, however, was somewhat vague and inconsistent, especially as to the date. The family stated that although the son safely attended flight school, the daughter was unable to continue her schooling and was forced to move every few months for her safety.

Ten months after the close of the proceedings, the IJ issued a lengthy written decision denying all relief and ordering removal.

The IJ credited the bulk of the petitioners' testimony regarding the existence of the land mafia, Mr. Reddy's role in opposing its members at the murder trial and the actions taken by the land mafia against the family in response. The IJ, however, found the petitioners' testimony not credible on several points: First, the IJ did not credit Mr. Reddy's testimony about his movements in the two-year period after the trial and before he departed for the United States, calling it “vague and unpersuasive” and “not sufficiently detailed to be credible.” ¹⁰ Second, the IJ concluded that Ms. Bathula's account of the attempted kidnapping of their daughter was “conflicting and uncorroborated.” ¹¹ Specifically, the IJ observed that the written submissions had indicated that the incident occurred in June 2004, when the Congress party was in power and Ms. Bathula was in the United States, but her oral testimony indicated that it had occurred in 2003, when the TDP was in power. In his view, ...