Ambati v. Reno et al, 99-3211

Citation233 F.3d 1054
Decision Date07 December 2000
Docket NumberNo. 99-3211,99-3211
Parties(7th Cir. 2000) GEORGE R. AMBATI and PRANAYKUMAR AMBATI, Petitioners, v. JANET RENO, Attorney General, and IMMIGRATION AND NATURALIZATION SERVICE, Respondents
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Before POSNER, RIPPLE and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge.

George Reddy Ambati and his son, Pranaykumar Ambati ("Pranaykumar"), practicing Christians and natives and citizens of India, seek review of the decision of the Board of Immigration Appeals ("BIA") dismissing their appeals. The Ambatis contend that the BIA lacked substantial evidence for its determination that Mr. Ambati failed to demonstrate either past persecution or fear of future persecution on account of his religion. They further contend that the BIA erred in upholding the Immigration Judge's ("IJ") denial of their request for a continuance to allow their attorney time to prepare their case. They also challenge the Board's conclusion that Pranaykumar's appeal was untimely. For the reasons set forth in the following opinion, we affirm.

I BACKGROUND

The Ambatis are practicing Christians of the Roman Catholic faith. Both Mr. Ambati and his wife come from Christian farming families who still reside in villages in India. They have two children--a son born in India and a daughter born in the United States. Although Mr. Ambati resides with his son in the United States, his wife and daughter reside in India. Mr. Ambati's parents and all six of his brothers and sisters live in India in close proximity to one another. Mr. Ambati supports his parents and siblings from his earnings in the United States.

A. Mr. Ambati's Testimony before the Immigration Judge

Mr. Ambati completed both high school and college in India. He first arrived in the United States on a nonimmigrant student visa in 1974. He received a master's degree from Oklahoma State University and, in 1977, he returned to India.

Mr. Ambati remained in India until 1991. He lived and worked in Nagpur, a city located 200 miles from his native village where his parents still reside and operate a family farm. While in Nagpur, Mr. Ambati worked as an environmental scientist for the Indian government from 1977 to 1991. During this period, he experienced no difficulties in Nagpur as a result of being Christian and was able to attend church without "physical handling" by those "hostile" to Christians. R.114. However, he was afraid of physical harm during his monthly visits to his parents in their village.

Although Mr. Ambati confirmed that his parents still regularly attended church in their village, he stated that his family had been subject to "religious attacks" for the last ten years. R.115. Mr. Ambati explained that, as Christians, his family was neither liked nor accepted by their neighbors. In fact, on several unspecified occasions, his father and his brothers were attacked and beaten at night while returning from the fields. In addition, Hindu farm workers would steal from Mr. Ambati's father's farm and would prevent other Hindus from working there.

In 1991, Mr. Ambati again entered the United States on a nonimmigrant student visa, this time to pursue a doctorate degree at the Illinois Institute of Technology in Chicago. He explained that becoming a student was the only opportunity for him to leave a country he "very much wanted to . . . leave." R.120. Soon after he arrived in Chicago, he experienced serious financial difficulties that caused him to leave school and eventually move with his wife and two children to New York City to work. Shortly after arriving in New York in 1992, he, his wife, and his son applied for asylum1 because they were alarmed by news from Mr. Ambati's parents that they were having difficulty with their crops and that Mr. Ambati's father had been attacked and beaten one night while returning home from the fields.

B. Administrative Proceedings
1.

With the help of an attorney, Mr. Ambati filed a request for asylum in September 1992 and included his wife and Pranaykumar in his application. He alleged that, as Christians, he and his family had suffered persecution by Hindus. Responding to an order to show cause, Mr. Ambati appeared at a deportation hearing in October 1996 without an attorney. The Immigration Judge explained in detail the purpose of the hearing as well as Mr. Ambati's rights in the proceedings. The IJ then asked if the Ambatis planned to retain counsel to represent them. When Mr. Ambati replied that they did, the IJ continued the hearing until May 19, 1997. The IJ warned Mr. Ambati, however, that he would grant no further continuances and urged Mr. Ambati to tell his counsel that his hearing date would not be extended.

Mr. Ambati retained counsel two weeks before his scheduled hearing and informed her that he previously had retained an attorney in New York in 1992 to assist him in filing his application for asylum. On May 19, Mr. Ambati and Pranaykumar appeared at the scheduled hearing, and their newly retained counsel requested a continuance. Counsel explained that she had overestimated the New York attorney's degree of involvement in the Ambatis' case; the case had not been prepared for the hearing, as she had believed, and thus she did not feel prepared to go forward. The IJ suggested to counsel that she could withdraw her notice of appearance and Mr. Ambati could proceed pro se. The IJ stated he would go forward with the hearing because not only had he granted Mr. Ambati a seven-month continuance, but also had explained clearly that no further continuances would be given. When asked by the IJ if he wanted the attorney to represent him, Mr. Ambati stated that he did. During the course of the hearing, the IJ specifically asked Mr. Ambati whether he would leave the United States if ordered to do so. Mr. Ambati replied, "I beg your Honor to help me to live here . . . because of the serious problem which we are facing."2 R.137-38.

After considering the evidence,3 the IJ concluded that Mr. Ambati's request for asylum fell short of establishing either past persecution or a well-founded fear of future persecution. The IJ determined that there was no basis to find that Mr. Ambati suffered past persecution because Mr. Ambati freely practiced his religion, worked in a government position, and was never tortured, detained, or threatened on account of his Christian faith. Moreover, the IJ reasoned, the economic and physical hardships experienced by Mr. Ambati's father and brothers did not support Mr. Ambati's claim for asylum. Lastly, the IJ opined that Mr. Ambati's application for asylum was nothing more than a mechanism to prolong his stay in the United States. Consequently, the IJ denied Mr. Ambati both asylum and withholding of deportation and ordered him deported to India. The IJ refused to allow Mr. Ambati voluntary departure because he found that Mr. Ambati desired to remain in the United States "at all costs." R.71 (internal quotation marks omitted). As for Pranaykumar, the judge also denied him both asylum and withholding of deportation, but granted him voluntary departure. Finally, the judge terminated the proceedings regarding Mrs. Ambati because she had left the United States before the initial deportation hearing.

2.

On appeal, the BIA affirmed the IJ's decision and adopted his findings and conclusions insofar as they regarded Mr. Ambati. In addition, the Board found that, because Mr. Ambati was allowed sufficient time to secure an attorney and prepare his case after the first continuance had been granted, the IJ did not abuse his discretion when he refused to grant Mr. Ambati another continuance. The BIA reasoned that Mr. Ambati received due process because he was on notice that the IJ was unwilling to grant further continuances and that Mr. Ambati was able to fully and fairly present his case. Lastly, the BIA determined that Pranaykumar's appeal was untimely because it had been filed well beyond the filing deadline of 30 days after the IJ's decision. Mr. Ambati now seeks review of the BIA's decision.

II ANALYSIS

Mr. Ambati argues that the BIA erroneously concluded that his experiences in India, and those of his family members, did not amount to persecution.4 In addition, he contends that the BIA erred in upholding the IJ's decision in light of his due process challenge. The IJ's refusal to grant a continuance, Mr. Ambati reasons, deprived him of his right to counsel and his right to present fully his case. Finally, Mr. Ambati challenges the BIA's unwillingness both to overturn the IJ's denial of voluntary departure for him and to consider the merits of Pranaykumar's appeal. We address each of these contentions in turn.

A. Persecution

Mr. Ambati contends that the BIA erred in denying him asylum because the evidence established not only that Mr. Ambati and his family were harassed and abused, but also that the livelihood of Mr. Ambati's parents was impaired on account of the family's Christianity. We review the BIA's asylum determination under the substantial evidence test. See Petrovic v. INS, 198 F.3d 1034, 1037 (7th Cir. 2000) (quoting Sivaainkaran v. INS, 972 F.2d 161, 163 (7th Cir. 1992)). We shall disturb the BIA's findings "only if the record lacks substantial evidence to support its factual conclusions." Malek v. INS, 198 F.3d 1016, 1021 (7th Cir. 2000).

To be considered for asylum, Mr. Ambati was required to demonstrate that he qualifies as a refugee. Congress has given the Attorney General discretion to grant asylum if an applicant qualifies as a refugee under 8 U.S.C. sec. 1101(a) (42)(A). See 8 U.S.C. sec. 1158(b)(1);5 see also Kaczmarczyk v. INS, 933 F.2d 588, 593 (7th Cir. 1991). The Immigration and Nationality Act defines "refugee" as

any person who is outside any country of such...

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