Mann v. Attorney General

123 F. App'x 514
CourtCourt of Appeals for the Third Circuit
DecidedFebruary 25, 2005
DocketNo. 03-3338
StatusPublished
Cited by1 cases

This text of 123 F. App'x 514 (Mann v. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mann v. Attorney General, 123 F. App'x 514 (3d Cir. 2005).

Opinion

OPINION OF THE COURT

FUENTES, Circuit Judge.

Petitioners Amarjit Kaur Mann (“Mann”) and her son Pritpal Singh Mann appeal the Board of Immigration’s (BIA) affirmance of a decision by an immigration judge (IJ) denying their claims to asylum, withholding of removal, and protection under the Convention against Torture (CAT). Because the IJ’s decision was supported by substantial evidence, and because Mann did not exhaust her CAT claim before the BIA, we will deny the petition for review.

I.

As we write only for the parties, we recite only the essential facts. Mann and her son are natives and citizens of India. Mann is educated, married and has three children: two daughters and a son. The IJ found that Mann’s husband’s family often beat Mann and severely mistreated her in other ways. Her in-laws also repeatedly extorted money from her parents, who complied with her in-laws’ demands out of fear for Mann’s welfare if they did not comply.

Mann also alleges that her mother-in-law killed her newborn daughter (because of the child’s sex) within minutes of birth. The IJ found that, while Mann believes her allegations to be true, the actual cause of the child’s death has not been established. The IJ also found that Mann believed she was held overnight by the local police after she reported the alleged murder to them because they were bribed by her influential in-laws. But again, the IJ found that the actual cause for her detention had not been established.

Mann continued to be severely mistreated after she returned to her in-laws’ house, after her detention. At one point she managed to leave the house with her children and returned to her parents’ home. Mann alleges that her in-laws threatened her brothers and took her children back to their home. After local village councils intervened and assured her that her mother-in-law would no longer mistreat her, Mann returned to her in-laws’ house.

Mann’s mother-in-law continued to mistreat her. Finally, with the help of Mann’s sister-in-law, Mann’s mother-in-law allegedly came close to setting Mann on fire in her kitchen and was prevented from doing so only due to neighbors’ intervention. After this incident, Mann escaped in the [516]*516night with her son; she did not take her daughters, who slept in the same room as her mother-in-law. She resided elsewhere in India with Mends and family for several months after her escape from her in-laws’ house. She did not file for divorce or seek further assistance from the local police. At no time did she contact the national police or police from another region in India.

Mann thereafter attempted to enter the United States with someone else’s passport. The former Immigration and Naturalization Service (INS) charged Mann with inadmissibility for falsely claiming to be a United States citizen and for lack of a valid immigrant visa or travel document. See 8 U.S.C. § 1182(a)(6)(C)(ii); 8 U.S.C. § 1182(a)(7)(A)(i)(I). The INS also charged her son with inadmissibility as a person likely to become a public charge and an immigrant not in possession of valid immigrant visa or travel document. See 8 U.S.C. § 1182(a)(4); 8 U.S.C. § 1182(a)(7)(A)(i)(I). Mann conceded their inadmissibility but argued before the IJ that they qualified for asylum, withholding of removal and protection under CAT. She appealed his adverse decision to the BIA, and now appeals the BIA’s order affirming the IJ.

II.

A grant of asylum under § 1158(b)(1) of the Immigration and Nationality Act (INA) allows an otherwise removable alien to stay in the United States. The Attorney General “may” grant asylum to an alien who demonstrates that she is a refugee, defined as a person unable or unwilling to return to the country of that person’s nationality or habitual residence because of past persecution or because of a well-founded fear of future persecution on account of his race, religion, nationality, membership in a particular social group, or political opinion. See I.N.A. § 208(b)(1), 8 U.S.C. § 1158(b)(1); 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). In order to establish eligibility for asylum on the basis of past persecution, an applicant must show: (1) an incident, or incidents, that rise to the level of persecution; (2) that is on account of one of the statutorily-protected grounds; and (3) is committed by the government or forces the government is either unable or unwilling to control. See Gao v. Ashcroft, 299 F.3d 266, 271-72 (3d Cir.2002). We have jurisdiction over each of Mann’s claims under § 242(a)(1) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1252(a)(1) (2000), which provides the exclusive procedure for judicial review of all final removal orders.

‘Whether an asylum applicant has demonstrated past persecution or a well-founded fear of future persecution is a factual question, which we review under the substantial evidence standard.” Mulanga v. Ashcroft, 349 F.3d 123, 131 (3d Cir.2003). “The BIA’s finding must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2003) (en banc).

The government argues that Mann may not now argue that she belongs to a persecuted social group, i.e. “young married women in India unable to escape customary in-law domination,” because she failed both to specify the statutory grounds for asylum in her application and to define her alleged social group in her testimony. While a petitioner might be barred from advancing a new claim of persecution based on membership in a group different from that in which she claimed membership during the administrative proceedings, Mann is not barred from pursuing her asylum claim in this case due to a failure to specify the particu[517]*517lar nuances of the social group to which she belonged in India. Although the IJ’s reference to her claim as one for “political asylum” might be read to imply that she was basing her claim on persecution based on political opinion, Mann’s allegations make obvious that Mann was claiming persecution based on membership in a social group and the IJ, at least, appears not to have been troubled by her failure to articulate the contours of her social group more precisely.

Nevertheless, Mann’s asylum claim must fail for just the reasons suggested by the IJ. Mann failed to show or persuade the IJ that local police authorities either directly persecuted her or were unwilling or unable to prevent her in-laws from harming her.

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123 F. App'x 514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mann-v-attorney-general-ca3-2005.