Patel v. Gonzales
| Decision Date | 04 December 2006 |
| Docket Number | No. 06-3197.,06-3197. |
| Citation | 470 F.3d 216 |
| Parties | Arvindbhai Hargovandas PATEL, Petitioner, v. Alberto GONZALES, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ON BRIEF: Barry L. Frager, Frager Law Firm, Memphis, Tennessee, for Petitioner. Allen P. Grunes, United States Department of Justice, Washington, D.C., for Respondent.
Before: MOORE and CLAY, Circuit Judges; BELL, Chief District Judge.*
Petitioner Arvindbhai Hargovandas Patel ("Patel") seeks review of the Board of Immigration Appeal's ("BIA") decision denying Patel asylum and voluntary departure under the Immigration and Nationality Act ("INA").
For the following reasons, we DENY Patel's petition with respect to his asylum claim, and REMAND his voluntary departure claim for a ruling by the BIA on whether Patel is entitled to voluntary departure.
Patel is a native and citizen of India and practices the Hindu religion. While in India, Patel was an active member of Rashtriya Swayamsevek Sangh ("RSS") and Bajrang Dal. The RSS is "an organization based on Hindu nationalism" that "espouses a return to what it considers Hindu values and cultural norms." Joint Appendix ("J.A.") at 128 (). Bajrang Dal is the youth wing of RSS.
In the early 1990s, RSS was part of an effort to build a Hindu temple in the town of Ayodhya on a site on which a mosque stood. The site is holy to some Hindus, including Patel, because they believe it is the birthplace of Lord Rama. On December 6, 1992, the effort to reclaim the site culminated in the destruction of the mosque by a group of nearly one million people. After this incident, violence and riots erupted between Muslims and Hindus. Although the Immigration Judge ("IJ") doubted Patel's veracity, Patel testified that his efforts in building the temple had been restricted to fund-raising.
Patel testified that he was not present when the mosque was torn down, as he was incarcerated at the time. The IJ found that his detention was a result of heightened sectarian stress and tension in India. In fact, Patel stated that he had been arrested a total of three times by the local police, usually after Patel participated in some public gathering agitating in favor of construction of the temple. He stated that, on each occasion, he was arrested for a few days and was denied water (and possibly food) for one or two days.
Patel came to the United States in early 1993, claiming that he left India because of his involvement in the RSS, and because he was afraid that he would be killed by Muslims in retaliation for his efforts related to building the temple. Patel filed an application for asylum with the INS in 1993. Although India is majority Hindu, Patel claims that he is still subject to persecution by Muslims, that the area in which he is from is predominantly Muslim, and that he could not safely relocate to another part of India, both because the Muslims would find him, and because of language barriers. In support of this argument, he stated that a man from his village named Mr. Sundhi left the village and was subsequently murdered.
Patel's application was not referred to the Immigration Court until January 2004, and Patel's hearing before the IJ took place on September 3, 2004. The IJ found that Patel was not eligible for asylum, withholding of removal, or voluntary departure. The IJ based his decision to deny asylum on both statutory and discretionary grounds.
Much of the IJ's decision focused on the finding that, due to his participation in the destruction of the mosque, Patel was, himself, a persecutor. However, on appeal, the BIA decision affirmed and adopted all of the IJ's opinion except insofar as the IJ found that Patel was a persecutor.
"Where the BIA adopts the IJ's reasoning, the court reviews the IJ's decision directly to determine whether the decision of the BIA should be upheld on appeal." Gilaj v. Gonzales, 408 F.3d 275, 282-83 (6th Cir.2005). Thus, we examine the IJ's decision, except with respect to the finding that Patel was a persecutor.
We have jurisdiction to review the BIA's asylum determination under 8 U.S.C. § 1252. Under the INA, the Attorney General may grant asylum to an alien who qualifies as a "refugee," which is defined as one "who is unable or unwilling to return to . . . [his or her home country] because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion...." 8 U.S.C. §§ 1158(b)(1), 1101(a)(42)(A). When an alien qualifies as a refugee, the IJ may exercise discretion to grant or deny asylum. Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir.2004).
Asylum analysis, therefore, "`involves a two-step inquiry: (1) whether the applicant qualifies as a `refugee' as defined in § 1101(a)(42)(A), and (2) whether the applicant merits a favorable exercise of discretion by the [IJ].'" Id. (alteration in original) (quoting Ouda v. INS, 324 F.3d 445, 451 (6th Cir.2003) (internal quotation marks and citation omitted)). "At the first step, we review the IJ's factual determination as to whether the alien qualifies as a refugee under a substantial[-]evidence test," meaning that "findings of fact are `conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.'" Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). At step two, "the discretionary judgment to grant asylum to a refugee is `conclusive unless manifestly contrary to the law and an abuse of discretion.'" Id. at 703 (quoting 8 U.S.C. § 1252(b)(4)(D)).
Patel argues that the IJ's decision denying him asylum was not supported by substantial evidence. First, he argues that the IJ did not determine that Patel lacked credibility. Second, he argues that the IJ "erred in finding that [he] did not have an objectively reasonable fear of persecution." Patel Br. at 9.
What is most important here, however, is what Patel does not argue. Patel does not argue that the IJ abused his discretion and reached a conclusion manifestly contrary to law in denying Patel asylum on discretionary grounds. The IJ based his denial of asylum on both non-discretionary and discretionary grounds. Specifically, the IJ found that Patel was "not worthy of a favorable exercise of discretion because of his activities in the group that did attempt to rip down the [m]osque and build the temple." J.A. at 30 (IJ Opinion at 8).
Apparently, Patel's position is that, although the IJ explicitly stated that one of the alternate grounds for denying asylum was discretionary, the BIA did not adopt and affirm this ground, and, thus, the only ground on which Patel was actually denied asylum was non-discretionary. However, there is nothing in the BIA decision indicating that it rejected the IJ's discretionary ground for denying asylum; therefore, Patel's argument is without merit.
Because Patel does not challenge the IJ's discretionary decision to deny asylum, Patel has forfeited this argument, and the discretionary ground for denying Patel asylum stands. Thus, we deny Patel's petition for review of his asylum claim. See Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 525 n. 4 (6th Cir.2006) ().
According to 8 U.S.C. § 1252(a)(2)(B)(i), "no court shall have jurisdiction to review any judgment regarding the granting of relief under section . . . 1229c [the section regarding voluntary departure]." However, according to § 1252(a)(2)(D), subsection (B) does not preclude this court from reviewing constitutional claims or questions of law. Thus, while our jurisdiction is limited with respect to voluntary departure determinations, where voluntary departure raises a...
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