UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1798
RAJNIKANT PATEL,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A72-001-418)
Submitted: February 28, 2007 Decided: March 23, 2007
Before NIEMEYER, WILLIAMS, and GREGORY, Circuit Judges.
Petition denied in part; granted and remanded in part by
unpublished per curiam opinion.
James Feroli, IMMIGRANT AND REFUGEE APPELLATE CENTER, Alexandria,
Virginia, for Petitioner. Peter D. Keisler, Assistant Attorney
General, Terri J. Scadron, Assistant Director, Jennifer Levings,
OFFICE OF IMMIGRATION LITIGATION, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rajnikant Ashabhal Patel, a native of India and a citizen
of Kenya, petitions for review of the Board’s order adopting the
immigration judge’s decision to deny Patel’s requests for asylum,
withholding of removal, and protection under the Convention Against
Torture (“CAT”).
Patel first contends that the immigration judge (“IJ”)
erred as a matter of law in denying his claim for CAT protection
because the IJ did not properly consider whether the Kenyan or
Indian governments would acquiesce in his being tortured by a
private actor, a human trafficker named “Raju.”1
An applicant requesting CAT protection under a
“acquiescence” theory need not show that the government knows or
willfully accepts that the applicant will be tortured; instead, it
is sufficient to show “that the public official, prior to the
activity constituting torture, [has] awareness of such activity and
thereafter breach[es] his or her legal responsibility to intervene
to prevent such activity.” 8 C.F.R. § 1208.18(a)(7) (2006); Zheng
v. Ashcroft, 332 F.3d 1186, 1194-97) (9th Cir. 2003).
In light of Patel’s challenge, the particular words
employed in denying relief are especially significant. When faced
1
After agreeing to work for Raju, Patel smuggled an Indian
woman and female child into the United States. Upon realizing that
Raju had no intention to pay him the agreed-upon price for his
services, Patel and Mahesh, another smuggler who also worked for
Raju, began their own smuggling operation, independent of Raju.
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with a similar claim, the Fifth Circuit concluded that the
following language was consistent with the governing standard:
I guess another aspect of this would be whether if the
money lenders who have not yet been paid came after her
might the government look the other way and therefore be
at least complicit in whatever might happen to [her] at
the hand of these loan sharks, and perhaps then whatever
would happen to [her] that might be seen as torture if
the government were aware of any penalties being meted
out and took no action to protect the respondent.
Chen v. Gonzales, 470 F.3d 1131, 1141-42 (5th Cir. 2006) (emphasis
in original). On the opposite end of the spectrum, however, the
Ninth Circuit opined that the use of the word “sanction” improperly
placed a higher burden on the petitioner. Ornelas-Chavez v.
Gonzales, 458 F.3d 1052, 1055, 1058-60 (9th Cir. 2006)
Our review of the record reveals that although the IJ
recited the proper standard for analyzing Patel’s CAT claim, she
erred in applying it. The IJ concluded Patel failed to submit any
evidence to support his argument that “the governments of Kenya or
India would be involved in his torture.” (J.A. 63). The IJ went
on to opine that “[t]here is no evidence that the Indian
government, through Raju or through any other agent, is responsible
for the disappearance of [another individual who participated in
Raju’s human trafficking operation].” (J.A. 64). The IJ further
concluded there was no evidence to demonstrate a “clear probability
that the Kenyan government would target the respondent for
torture.” (J.A. 65). This language reflects that the IJ held
Patel to a higher standard than appropriate under the CAT.
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Accordingly, while we indicate no opinion regarding the ultimate
disposition of Patel’s CAT claim, we remand this issue to the
agency for further consideration of whether Patel’s evidence
establishes the Kenyan government would acquiesce in his torture.2
Menghesha v. Gonzales, 450 F.3d 142, 147 (4th Cir. 2006).
Patel next challenges the IJ’s ruling, as adopted by the
Board of Immigration Appeals, denying his request for withholding
of removal.3 Patel first argues that the IJ erred as a matter of
law by failing to consider his withholding of removal claim on the
basis of his assertion that he would be persecuted on account of a
political opinion: opposition to government corruption. According
to Patel, if returned to Kenya or India, he would be persecuted by
Raju, and this persecution would be motivated, at least in part, by
Raju’s imputation of this political opinion to him. Patel further
maintains that his cooperation with United States immigration
officials amounts to a protectable “political opinion.”
2
We note that the IJ did not expressly determine whether it
was “more likely than not” that Patel would suffer an “extreme form
of cruel and inhumane treatment” if returned to Kenya. 8 C.F.R.
§§ 1208.16(c)(2), 1208.18(a)(2) (2006). We likewise express no
opinion about whether Patel’s CAT claim could properly be denied on
this basis. See generally INS v. Ventura, 537 U.S. 12, 16 (2002).
3
Patel attacks the IJ’s conclusion that she would have
rejected his asylum claim for the same reasons she rejected Patel’s
withholding of removal claim; however, the IJ denied Patel’s asylum
claim as time-barred, and we do not have jurisdiction to review
this ruling. See 8 U.S.C. § 1158(a)(3) (2000); Chen v. U.S. Dep’t
of Justice, 434 F.3d 144, 151 (2d Cir. 2006). Accordingly, we
review Patel’s argument only relative to the denial of his claim
for withholding of removal.
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Based on our review of the record, we agree with the IJ’s
conclusion that any harm that may befall Patel at Raju’s hands
would be predicated entirely on the personal dispute between the
two, arising from Patel’s decision to end-run Raju and engage in
illegal human trafficking with another of Raju’s men. “Fears of
retribution over purely personal matters or general conditions of
upheaval and unrest do not constitute cognizable bases for granting
asylum.” Saldarriaga v. Gonzales, 402 F.3d 461, 466 (4th Cir.),
cert. denied, 126 S. Ct. 1330 (2005) (internal quotations and
citation information omitted).
In light of our ruling in Saldarriaga, we also reject
Patel’s assertion that by reporting Raju’s illegal human
trafficking operation to INS officials, he has demonstrated a
protectable political opinion. In his petition for review, Patel
makes much of the fact that Saldarriaga involved a claim of
persecution based on actual political opinion, and his claim is one
of imputed political opinion. This is a distinction without
significance and strains the already tenuous connection between
Patel’s fear of harm at Raju’s hands and his claim for withholding
of removal.
Lastly, Patel contends the IJ erred in failing to
consider the corroborative evidence he presented, namely the
affidavits of his brother-in-law and the live testimony presented
by his sister-in-law. In the alternative, Patel suggests that if
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the IJ did consider this evidence, she erred in failing to set
forth specific reasons for discrediting it.
The IJ specifically stated in her oral decision that she
considered Patel’s asylum application “in full” and that she also
considered “in full the sworn testimony of [Patel] and his witness
and the contents of all documents that were admitted into
evidence.” An immigration judge need not discuss the individual
worth of each item of evidence, but may base her decision “on the
totality of the evidence.” Gandziami-Mickhou v. Gonzales, 445 F.3d
351, 358 (4th Cir. 2006).
This court will affirm a determination regarding
eligibility for withholding of removal if it is supported by
substantial evidence on the record considered as a whole. INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992). Factual findings by the
Board or the immigration judge “are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B) (2000).
Having reviewed the record, we conclude that the IJ’s
decision to deny Patel’s request for withholding of removal is
supported by substantial evidence. Patel simply did not carry his
burden to establish there was a clear probability that, if he were
returned to Kenya or India, he would be persecuted on account of
the political opinion he claims Raju imputes to him. Accordingly,
we deny the petition for review of this issue.
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For the foregoing reasons, we remand the petition for
review for an agency determination on Patel’s CAT claim and deny
the remainder of the petition. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
PETITION DENIED IN PART;
GRANTED AND REMANDED IN PART
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