NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0529n.06
No. 13-3913
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT
Jul 21, 2014
DEBORAH S. HUNT, Clerk
SHITALBEN PATEL, )
)
Petitioner, ) ON PETITION FOR REVIEW OF
) A FINAL ORDER OF THE
v. ) BOARD OF IMMIGRATION
) APPEALS
ERIC H. HOLDER, JR., )
)
OPINION
Respondent. )
)
Before: MOORE, SUTTON, and ALARCÓN, Circuit Judges.*
KAREN NELSON MOORE, Circuit Judge. Shitalben Patel, a native and citizen of
India, began an excavation business with her husband in 2004. To do so, she borrowed
approximately sixty or seventy lacks (roughly equivalent to $350,000) from six friends, on the
condition that she pay the money back within three years and at an interest rate of 1.5%. The
business failed, and Patel was able to pay only part of the money she owed. In 2008, after the
time for repayment lapsed, Patel’s creditors began threatening her. They sent men to her home
and to follow her around town, and the men warned her that she would be “unwell mentally or
physically” if she did not return the money. A.R. 106 (Hr’g Tr. at 33). Patel testified that these
threats occurred “[i]numerable times” and were “continuous” for over a year. Id. In January
2009, a group of four or five men cornered her in town and one of them slapped her. Patel did
not contact the police about any of the threats because she believed that the police would not
*
The Honorable Arthur L. Alarcón, Senior United States Circuit Judge for the Ninth
Circuit, sitting by designation.
No. 13-3913
Patel v. Holder
help her. After the slapping incident, Patel began to fear for her life, and she and her husband
traveled to the United States in April 2009 on visitor’s visas.
Patel’s visa expired after six months, but she remained in the United States. She did not
file an application for asylum at that time because “there was nobody to advise [her].” Id. at
113–14 (Hr’g Tr. at 40–41). After she pleaded guilty to shoplifting in April 2010, the
Department of Homeland Security initiated removal proceedings against her. Patel conceded
removability, but on June 22, 2010 she requested relief in the form of asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). Patel believes that, if
she returns to India now, she will be killed because her creditors have realized that she will never
be able to pay them back. She does not believe that there is anywhere in India that she can go
where her creditors will not be able to find her.
Patel testified regarding her fear of her creditors at a hearing before an immigration judge
(“IJ”). Although the IJ found Patel credible, he denied Patel’s applications for asylum,
withholding of removal, and CAT protection. First, the IJ concluded that her asylum application
was time-barred because she failed to file within one year of her entry into the United States, and
then delayed for an unreasonable amount of time after her legal status as a non-immigrant visitor
expired. Id. 63–64 (IJ Dec. at 16–17). Next, the IJ concluded that Patel was not entitled to
withholding of removal because her past experience did “not cross the line from harassment to
persecution” and she could not show that she would likely be persecuted in the future. Id. at 65
(IJ Dec. at 18). Moreover, even if verbal harassment and one physical altercation constitute
2
No. 13-3913
Patel v. Holder
persecution, Patel failed to show that she was persecuted on the basis of a protected ground. Her
claimed particular social group—business owners or former business owners who owe money to
creditors—was neither based on an immutable characteristic nor visible to the community. Id. at
66 (IJ Dec. at 19). Finally, the IJ concluded that Patel failed to show that she would face torture
if she returned to India. The Board of Immigration Appeals (“BIA”) agreed with the IJ’s
reasoning and dismissed Patel’s appeal.
When the BIA affirms the IJ’s opinion but also provides additional explanation for the
ruling, we review the opinions of both the BIA and the IJ. Zoarab v. Mukasey, 524 F.3d 777,
780 (6th Cir. 2008). We review an immigration court’s factual conclusions to determine if they
are “supported by reasonable, substantial, and probative evidence on the record considered as a
whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal quotation marks omitted).
Under this standard, we must defer to the immigration court’s findings of fact “unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B). Legal conclusions are reviewed de novo. Zoarab, 524 F.3d at 780.
Patel’s asylum application is not within our jurisdiction to review on appeal. An alien
must file an application for asylum “within 1 year after the date of the alien’s arrival in the
United States.” 8 U.S.C. § 1158(a)(2)(B). A late application may be considered only “if the
alien demonstrates to the satisfaction of the Attorney General either the existence of changed
circumstances which materially affect the applicant’s eligibility for asylum or extraordinary
circumstances relating to the delay.” Id. at § 1158(a)(2)(D). If the alien can demonstrate
3
No. 13-3913
Patel v. Holder
changed or extraordinary circumstances, she must still file the application within a reasonable
period of time considering those circumstances. 8 C.F.R. § 1208.4(a)(4)(ii), (5). Patel argues
that, although she failed to file an application for asylum within a year of entering the United
States, her delay was justified by extraordinary circumstances because she “maintained . . .
lawful immigrant or nonimmigrant status . . . until a reasonable period before the filing of the
asylum application.” Id. at § 1208.4(5)(iv). The BIA approved the IJ’s conclusion that,
notwithstanding Patel’s valid presence in the country for six months on a non-immigrant visa,
her application was time-barred because she “failed to file her asylum application for nearly a
year beyond the expiration date of her non-immigrant visa.” A.R. at 3 (BIA Dec. at 1).
We lack jurisdiction to review an immigration court’s decision that an asylum application
was not timely filed. 8 U.S.C. § 1158(a)(3). Although we may review appeals that present
“constitutional claims or matters of statutory construction,” we may not review appeals that
challenge the immigration court’s factual or discretionary determinations. Almuhtaseb v.
Gonzales, 453 F.3d 743, 748 (6th Cir. 2006). Patel presents only a factual challenge to the BIA’s
determination.1 She argues that her application, which was filed within one year of the
1
In her reply brief, Patel for the first time frames her argument as resting on Equal
Protection grounds. She argues that timely filing of her asylum application was impossible after
she was served with a Notice to Appear because at that point she could apply for asylum only in
open court before an IJ, and that the timeliness provisions of the immigration regulations thus
discriminate against individuals who have been forced into immigration proceedings. We
ordinarily refrain from entertaining on appeal an issue that is not raised in a petitioner’s opening
brief. Furthermore, even if we were to consider Patel’s Equal Protection argument, we would
reject it. “[D]istinctions made by the federal government among aliens receive only rational
basis scrutiny.” Ashki v. INS, 233 F.3d 913, 920 (6th Cir. 2000) (citing Fiallo v. Bell, 430 U.S.
787 (1977)). We believe that there is a rational basis motivating the statutory requirement that
4
No. 13-3913
Patel v. Holder
expiration of her lawful status, was filed within a reasonable time based on her extraordinary
circumstances. We do not have jurisdiction to review the reasonableness of her delay.
Although we may not review Patel’s asylum claim, we may consider whether the district
court’s rejection of her application for withholding of removal was supported by substantial
evidence. An alien seeking withholding of removal must establish “that it is more likely than
not” that her “life or freedom would be threatened in that country [of removal] because of the
alien’s race, religion, nationality, membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3); see INS v. Stevic, 467 U.S. 407, 429–30 (1984). Patel cannot demonstrate
that she is entitled to withholding of removal for two reasons: (1) she has not shown that she
was persecuted in the past or that she has a well-founded fear of future persecution and (2) she
has not identified a protected ground on which it is likely she will be persecuted.
First, Patel has not produced evidence to show that she suffered past persecution or will
likely suffer future persecution. Persecution “requires more than a few isolated incidents of
verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of
harm, or significant deprivation of liberty.” Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir.
1998). Moreover, even “[t]he fact of some physical harm may not be sufficient,” though
physical harm is not required in every case and “harm need not be life-threatening to constitute
an alien apply for asylum within a year, regardless of whether she is barred from applying for a
portion of that time because she has been placed in removal proceedings. The government has a
legitimate interest in dissuading potential asylum applicants from remaining in the country
illegally until they are detected by federal authorities and forced into removal proceedings.
Permitting a potential applicant to toll his limitations period from the point at which he is served
with a Notice to Appear would undermine that interest.
5
No. 13-3913
Patel v. Holder
persecution.” Haider v. Holder, 595 F.3d 276, 286 (6th Cir. 2010). Patel’s allegations that she
was verbally harassed and followed for over a year, and that she was slapped on one occasion, do
not rise to the level of persecution. See Thapa v. Holder, 475 F. App’x 593, 595 (6th Cir. 2012)
(concluding that “unfulfilled threats” do not constitute past persecution); Stefanovski v. Mukasey,
267 F. App’x 438, 441 (6th Cir. 2008) (concluding that the petitioner’s “suspicion that her family
was being followed and the telephone calls threatening her family” do not constitute
persecution); Stenaj v. Gonzales, 227 F. App’x 429, 433 (6th Cir. 2007) (concluding that aliens
were not harassed when armed officers repeatedly visited their home late at night and threatened
them with arrest, and on one occasion beat one of the petitioners).
Nor do her allegations support her belief that she will be subject to future persecution.
Patel testified that she believes that she will be killed if she returns to India because “more time
has gone by, and I still haven’t paid, and so now [her creditors are] thinking I’m never going to
repay.” A.R. 115 (Hr’g Tr. at 42). However, she has not provided any evidence to support her
subjective belief: none of her creditors threatened to kill her in the past, and she has offered no
evidence to support her belief that her creditors would escalate their harassment if she returned.
Moreover, even if she would likely be subject to persecution in Gujarat, the region where she
lived before entering the United States, her claim fails if she reasonably could “avoid persecution
by relocating to another part of the . . . country.” 8 C.F.R. § 1208.13(b)(2)(ii). Although Patel
testified that relocation would not ensure her safety because her creditors “could reach anywhere
in India,” A.R. 114 (Hr’g Tr. at 41), Patel’s creditors were all former friends who lived in
6
No. 13-3913
Patel v. Holder
neighboring towns to Patel’s in Gujarat. Patel has not demonstrated that her creditors have
national interests in a manner that would allow them to reach her if she moved away from her
home region. Accordingly, the IJ’s determination that Patel failed to establish either past
persecution or a well-founded fear of future persecution is supported by substantial evidence.2
Second, Patel has not shown that she will likely be persecuted on the basis of a protected
characteristic: her membership in a “particular social group” of business owners or former
business owners who owe money to creditors. A social group is “a group of persons all of whom
share a common, immutable characteristic. . . . Whatever the common characteristic that defines
the group, it must be one that the members of the group either cannot change, or should not be
required to change because it is fundamental to their individual identities or consciences.”
Rreshpja v. Gonzales, 420 F.3d 551, 555 (6th Cir. 2005) (internal quotation marks and citations
omitted). Moreover, the social group “must be both particular and socially visible”:
Particularity refers to whether the proposed group can accurately be described in a
manner sufficiently distinct that the group would be recognized, in the society in
question, as a discrete class of persons. Social visibility requires that the shared
characteristic of the group should generally be recognizable by others in the
community. In other words, social visibility requires that the set of individuals
with the shared characteristic be perceived as a group by society.
2
Because Patel has not demonstrated a well-founded fear of future persecution, she
likewise cannot establish that it is more likely than not that she would be tortured if she returns to
the proposed country of removal. See 8 C.F.R. § 1208.16(c)(2). Torture occurs when “severe
pain or suffering, whether physical or mental, is intentionally inflicted on a person . . . at the
instigation of or with the consent or acquiescence of a public official.” 8 C.F.R. § 1208.18(a)(1).
If Patel’s unsupported belief that she will be killed if she returns to India is insufficient to
constitute persecution, it is clearly insufficient to rise to the level of torture.
7
No. 13-3913
Patel v. Holder
Umaña-Ramos v. Holder, 724 F.3d 667, 671 (6th Cir. 2013) (internal quotation marks and
citations omitted).
Patel’s alleged social group lacks both immutability and social visibility. Her debtor
status is not immutable because she can change it by repaying her creditors. Although Patel
lacks the resources to repay her creditors at this time, her indebtedness is not a characteristic that
literally cannot be changed, nor is it one that is fundamental to Patel’s identity in a way that we
should not require her to change it. In addition, Patel has offered no evidence that indebted
business owners are a particular group that is generally recognizable in Indian society. Patel’s
argument that the group is particular and socially visible because all of her neighbors are aware
that she owes money to creditors is unsuccessful. Patel’s neighbors may be aware of her debt,
but only because she has been threatened by her creditors. This circular definition of a social
group is insufficient. See Rreshpja, 420 F.3d at 556 (“The individuals in the [social] group must
share a narrowing characteristic other than their risk of being persecuted.”). Thus, we uphold the
IJ’s determination that Patel could not demonstrate that she would likely be persecuted on the
basis of a protected ground.
For the foregoing reasons, we DISMISS for lack of jurisdiction Patel’s petition for
review with respect to her asylum claim and DENY her petition for review with respect to her
claims for withholding of removal and relief under the Convention Against Torture.
8