Patel v. Garland

Opinion

20-823 Patel v. Garland BIA

Segal, IJ

A200 905 726

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 9th day of June, two thousand twenty-two. 5 6 PRESENT: 7 RICHARD J. SULLIVAN, 8 EUNICE C. LEE, 9 MYRNA PÉREZ, 10 Circuit Judges. 11 _____________________________________ 12 13 HITESH KUMAR PATEL, 14 Petitioner, 15 16 v. 20-823 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Deepti Vithal, Richmond 24 Hill, NY. 25 26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 27 Assistant Attorney General; 28 Anthony C. Payne, Assistant 29 Director; Abigail E. Leach, Trial

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1 Attorney, Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4 DC. 5 6 UPON DUE CONSIDERATION of this petition for review of a

7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review 9 is DENIED. 10 Petitioner Hitesh Kumar Patel, a native and citizen of 11 India, seeks review of a February 14, 2020 decision of the 12 BIA affirming a March 28, 2018 decision of an Immigration 13 Judge (“IJ”), which denied asylum, withholding of removal, 14 and relief under the Convention Against Torture (“CAT”). In 15 re Hitesh Kumar Patel, No. A200 905 726 (B.I.A. Feb. 14, 16 2020), aff’g No. A200 905 726 (Immigr. Ct. N.Y.C. Mar. 28, 17 2018). We assume the parties’ familiarity with the 18 underlying facts and procedural history. 19 We review the decision of the IJ as supplemented by the 20 BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 21 2005). The agency’s factual findings are reviewed for 22 substantial evidence, see Yanqin Weng v. Holder, 562 F.3d 23 510, 513 (2d Cir. 2009), and will be deemed “conclusive unless 24 any reasonable adjudicator would be compelled to conclude to 25 the contrary[,]” 8 U.S.C. § 1252(b)(4)(B). Based on the

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1 record before it, the agency reasonably concluded that Patel, 2 who was presumed to have a well-founded fear of persecution 3 by members of the Bharatiya Janata Party (“BJP”) on account 4 of his work for the Congress Party, could safely relocate 5 within India to avoid future harm. 6 An applicant who has suffered persecution is presumed to 7 have a well-founded fear and face a likelihood of future 8 persecution. 8 C.F.R. §§ 1208.13(b)(1), 1208.16(b)(1). The 9 Government may rebut this presumption if it establishes “by 10 a preponderance of the evidence” that the applicant can “avoid 11 future persecution by relocating to another part of the 12 applicant’s country of nationality . . . , and under all the 13 circumstances, it would be reasonable to expect the applicant 14 to do so.” 8 C.F.R. §§ 1208.13(b)(1)(i)(B), (ii), 15 1208.16(b)(1)(i)(B); see Surinder Singh v. BIA, 435 F.3d 216, 16 219 (2d Cir. 2006). 17 The IJ reasonably concluded that Patel’s persecutors, 18 who were local BJP members, were not government officials. 19 See Jagdeep Singh v. Garland, 11 F.4th 106, 115 (2d Cir. 2021) 20 (“An applicant’s allegation that he was persecuted by members 21 of a political party — even one that is in power nationally 22 or . . . is aligned with a party in power nationally — does

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1 not establish that the applicant was persecuted by the 2 government.”). However, it erred in concluding that this 3 meant that the presumption of future persecution was not 4 countrywide, because the regulations at the time provided 5 that internal relocation was presumptively unreasonable for 6 applicants who had established past persecution. See 7 8 C.F.R. §§ 1208.13(b)(3)(ii), 1208.16(b)(3)(ii) (in effect 8 until Nov. 19, 2020). Nevertheless, remand would be futile 9 given that the agency ultimately treated the presumption as 10 countrywide and applied the correct standard to consider 11 whether the Government rebutted the presumption of a well- 12 founded fear of persecution by establishing by a 13 preponderance of evidence that internal relocation would be 14 safe and reasonable. See Gurung v. Barr, 929 F.3d 56, 62 (2d 15 Cir. 2019) (explaining that remand is futile “when the IJ 16 articulates an alternative and sufficient basis for her 17 determination” (quotation marks omitted)). 18 In concluding that Patel could safely and reasonably 19 relocate within India to avoid future persecution, the agency 20 reasonably relied on evidence that Indian citizens may freely 21 move and live throughout most of the country, that Patel’s 22 political party is in power in parts of the country, that

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1 another political party with whom Patel had not had trouble 2 was in power in the capital, and that Patel is young, healthy, 3 and able to work. See 8 C.F.R. §§ 1208.13(b)(1)(i)(B), (ii), 4 1208.16(b)(1)(i)(b), (ii); see also Surinder Singh, 435 F.3d 5 at 219 (“Asylum in the United States is not available to 6 obviate re-location to sanctuary in one’s own country.”). 7 Accordingly, the agency did not err in concluding that the 8 Government rebutted the presumption that Patel has a well- 9 founded fear of persecution and thus that he was not eligible 10 for asylum or withholding of removal. See 8 C.F.R. 11 §§ 1208.13(b)(1)(i)(B), (ii), 1208.16(b)(1)(i)(B), (ii); 12 Surinder Singh, 435 F.3d at 218–19. 13 The relocation finding also was dispositive of CAT 14 relief. See 8 C.F.R. § 1208.16(c)(3) (listing ability to 15 relocate as one consideration “[i]n assessing whether it is 16 more likely than not that an applicant would be tortured”); 17 Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010) (holding 18 that where record does not demonstrate chance of persecution 19 required for asylum, it “necessarily fails to demonstrate” 20 the greater likelihood of harm for withholding of removal and 21 CAT relief). Nor did the agency err in concluding that Patel 22 also failed to establish his eligibility for humanitarian

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1 asylum because he did not allege “long-lasting effects” as a 2 result of his past persecution. Jalloh v. Gonzales, 498 F.3d 3 148, 151 (2d Cir. 2007); see also 8 C.F.R. 4 § 1208.13(b)(1)(iii)(A). 5 Finally, there is no merit to Patel’s contention that 6 the IJ exhibited bias simply by questioning him on the issue 7 of internal relocation. See Zhi Wei Pang v. BCIS, 448 F.3d 8 102, 111 (2d Cir. 2006) (“An IJ has an affirmative obligation 9 to help develop the record in immigration proceedings.”); cf. 10 Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006) (explaining 11 that Court remands “when an IJ’s conduct results in the 12 appearance of bias or hostility such that [the Court] cannot 13 conduct a meaningful review of the decision below”). 14 For the foregoing reasons, the petition for review is 15 DENIED. All pending motions and applications are DENIED and 16 stays VACATED.

17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, 19 Clerk of Court