NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0667n.06
Case No. 10-4516 FILED
Jun 21, 2012
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
MANISHKUMAR PATEL, )
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) OF A DECISION OF THE
) BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., ) APPEALS
Attorney General, )
)
Respondent. )
)
_______________________________________
BEFORE: BATCHELDER, Chief Judge; CLAY and GILMAN, Circuit Judges.
ALICE M. BATCHELDER, Chief Judge. Petitioner Manishkumar Patel illegally entered
the United States in 1995 and was arrested for doing so in 2008. To prevent his being removed from
the country, Patel applied for asylum, withholding of removal, protection under the Convention
Against Torture, and cancellation of removal. The Immigration Judge denied his four applications
and ordered him returned to India, his home country. The Board of Immigration Appeals affirmed.
He now petitions this Court for review. Because we lack jurisdiction to review half of the denials
and find the other half supported by substantial evidence, we DISMISS his petition.
I.
Patel is a native and citizen of India. In May 1995, he entered the United States without
having been admitted or paroled after inspection. He lives with his girlfriend, Aruna Patel
(“Aruna”), who is also currently facing removal proceedings. Patel and Aruna have two American-
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born, U.S. citizen daughters, Pooja (born July 12, 2006) and Shraya (born March 31, 2008). While
Patel has not returned to India since 1995, he has sent both daughters on individual, year-long trips
to visit his parents in India. Each visit started when the daughter was about 6 months old.
On August 24, 2008, a Department of Homeland Security (“DHS”) official apprehended
Patel and Aruna at a bus station in Rochester, New York. Patel admitted having no lawful right to
be in the United States. On that same day, DHS filed a Notice to Appear charging Patel with
removability. Patel conceded removability, but then applied for asylum, withholding of removal,
protection under the Convention Against Torture (“CAT”), and cancellation of removal.
On January 4, 2010, the Immigration Judge (“IJ”) conducted a removal hearing. At the
hearing, Patel testified that he was a member of India’s Bharatiya Janata Party (“BJP”) from 1990
to 1995, and that he worked for the party by passing out campaign propaganda. According to Patel,
members of the rival Congress Party frequently threatened and subjected him to verbal abuse, and
warned that he must leave the BJP or be killed. Patel, a Hindu, said that the BJP was a political party
that sought to help everyone, and that though the Congress Party was not explicitly Muslim, it sought
to help only Muslims. He also testified that his family lived across the street from a mosque and was
subjected to verbal abuse and occasional rock throwing by Muslims in the neighborhood.
Patel further testified that, in 1992, Muslims working for the Congress Party attacked him
and struck him in the head with a stone, leaving him hospitalized for one and a half months. He also
stated that some Muslims forced his parents to leave the family home and have occupied it rent-free
ever since. Finally, Patel testified that, in 1993, Muslims vandalized his moped while it was parked
in front of his family’s house.
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Patel claims that he fears being harmed by Muslims and Congress Party members should he
return to India. This is primarily because of his past support of the BJP from 1990 to 1995 and his
plans to continue supporting the BJP in India if deported.
Patel did not provide corroborating evidence for several key allegations. For instance, he
failed to provide any corroborating evidence regarding his head injury and resulting hospitalization.
While he submitted a letter from his father that stated Patel had suffered some harassment, it did not
mention the specific attack and ensuing hospital stay. Patel offered conflicting explanations for the
letter’s omission, saying first that his father had forgotten what happened, and then that he was
unaware of it. Patel admitted, though, that his mother and three sisters knew of the occurrence, and
he failed to persuasively explain why they had not written to support his account.
Nor did Patel offer any corroboration for his account of losing the family home to Muslim
occupiers. In fact, the letter from Patel’s father stated that the family had sold the home. Asked
about this by the IJ, Patel explained that the home was separated into parts and the part that the
Muslims allegedly stole was his separate part. But he did not provide any corroborating evidence.
Finally, Patel did not provide corroborating evidence showing that he was a member of the
BJP. Though he said that his father had sent him his old membership card, Patel claims that he lost
it before the hearing.
At the hearing’s end, the IJ denied Patel’s applications for asylum, withholding of removal,
CAT protection, and cancellation of removal. While noting that “several areas of concern” with
Patel’s testimony left it “far less than convincing,” the IJ did not make an explicit finding that Patel
was not credible. Rather, the IJ found that the fatal flaws to Patel’s applications were his lateness
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in filing and failure to provide reasonably available corroborating evidence to meet the various
burdens of proof for his claims. The BIA affirmed the IJ’s decision and dismissed Patel’s appeal.
Patel then timely filed this petition for review.
II.
We review the factual findings of the final decision of the agency for substantial evidence.
Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). We may reverse the decision on factual
grounds only if “any reasonable adjudicator would be compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B). We review questions of law de novo. Khalili, 557 F.3d at 435.
Where, as here, the BIA affirms the IJ’s decision by issuing its own opinion, the decision of
the BIA is the final decision this court reviews. Id. But “[t]o the extent the BIA adopted the
immigration judge’s reasoning, . . . this Court also reviews the immigration judge’s decision.” Id.
Patel asserts that he is entitled to four types of relief. We address each in turn below.
1. Asylum
Patel argues that the BIA’s refusal to grant him a waiver of the one-year time limit for filing
an asylum petition was unsupported by substantial evidence. Patel Br. at 14. The Attorney General
(“AG”) may grant asylum to an applicant who files a petition for asylum within one year of arrival
in the United States. 8 U.S.C. § 1158(a)(2)(B). But Patel filed his asylum application in 2009,
thirteen years late. Though the AG may consider an untimely application in certain narrow
circumstances under § 1158(a)(2)(D), courts cannot review that discretionary decision absent any
statutory or constitutional error. See 8 U.S.C. § 1158(a)(3); see also Vincent v. Holder, 632 F.3d
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351, 353 (6th Cir. 2011). Because there has been no such error, we do not have jurisdiction to
review this claim.
2. Cancellation of Removal
Patel’s argument for cancellation of removal fails for a similar reason. The AG, through the
BIA, has discretion to cancel removal proceedings for aliens who meet certain requirements,
including those who show that “removal would result in exceptional and extremely unusual hardship
to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully
admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(D). And, as with the asylum issue,
where a discretionary AG decision on removal cancellation is free from legal or constitutional error,
this Court lacks jurisdiction to review the decision. 8 U.S.C. § 1252(a)(2)(B)(i); see also Aburto-
Rocha v. Mukasey, 535 F.3d 500, 503 (6th Cir. 2008).
Patel argues that there is a legal error here, namely that the BIA used the wrong legal standard
to analyze the “exceptional and extremely unusual hardship” prong of his cancellation-of-removal
claim. Patel Br. at 23. He lists factors that he says the IJ must consider per the BIA’s decision in
In re Monreal, 23 I&N Dec. 56 (BIA 2001), and then argues that applying those factors in his case
requires a ruling in his favor. Id. But the record shows that the IJ and the BIA both cited and
followed Monreal as controlling authority, and the BIA explicitly held that the IJ “properly and
throughly” considered the same “relevant factors” that Patel identifies. Thus, the “essence of
[Patel’s] challenge” is not about the right legal standard, but rather the BIA’s “application of an
accepted standard to a particular set of facts.” Reyes v. Holder, 410 F. App’x. 935, 938 (6th Cir.
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2011). Such matters are exactly what the law commits to the AG’s discretion and places beyond this
Court’s jurisdiction. Id.; accord Perez-Roblero v. Holder, 431 F. App’x. 461, 466 (6th Cir. 2011).
3. Withholding of Removal
Patel mounts a two-pronged attack on the BIA’s denial of his withholding-of-removal
application. First, he says that we must remand for a credibility determination since the IJ failed to
make an explicit one below. Patel Br. at 11. In his view, before an application can be denied for
lack of corroboration, the IJ must find that the applicant is not credible and that there is a need for
corroborating evidence. Patel Br. at 13–14. He relies on El-Sheikh v. Ashcroft, 388 F.3d 643 (8th
Cir. 2004), for this proposition, incorrectly identifying it as Sixth Circuit authority. But El-Sheikh
is not the law in this circuit. To the contrary, an adverse credibility determination is not required to
deny a petition. Even when a petitioner is found credible, if “the agency determines that an applicant
should provide corroborating evidence, . . . corroborating evidence is required .” Urbina-Mejia v.
Holder, 597 F.3d 360, 367 (6th Cir. 2010) (emphasis added). The only exception is where a
petitioner “cannot reasonably obtain that evidence.” Id. It is to that exception where Patel turns to
make his second argument.
Patel asserts that corroborating evidence about his alleged BJP membership, injury and
hospitalization, and family home that was stolen by the Muslims was not reasonably available. But
the IJ explicitly found otherwise and the BIA agreed. This Court is “bound to uphold a finding that
corroborative evidence is available unless compelled otherwise” by substantial evidence. Urbina-
Mejia, 597 F.3d at 367.
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Patel labels the IJ’s requests for corroborating evidence “impractical and implausible” and
argues that he should not have been required to delay his escape from persecution to “collect paper
reports to satisfy an IJ’s unrealistic expectation[s].” Patel Br. at 13. But that is not what the IJ
required. Patel needed to support his key claims with corroborating evidence only if it was
reasonably “accessible to [him] . . . through . . . relatives.” Dorosh v. Ashcroft, 398 F.3d 379, 383
(6th Cir. 2004) (internal quotation marks and citation omitted). This low bar should have been easy
to hurdle given his close connection to his family in India. Indeed, that connection is so close that,
since 2007, Patel has sent his infant daughters to live with his family for about a year apiece, with
the second child returning over a year after removal proceedings against Patel started. And
documentary evidence is easier to transfer than daughters.
As if to illustrate that point, his father returned Patel’s old BJP membership card with the
second daughter, and mailed the IJ a letter on Patel’s behalf. The problem for Patel is that neither
corroborates anything: the letter actually calls into question two of Patel’s key claims (the head
injury and the theft of the family home), and Patel lost the membership card before it could be
submitted as evidence. Further, Patel does not explain why, for instance, his mother and sisters
could not have sent letters affirming Patel’s lengthy hospital stay and the violent attack that allegedly
led to it. Patel clearly had access to corroborating evidence through his family and thus we are not
compelled to reject the BIA’s conclusion that such evidence was reasonably available.
4. CAT Protection
Finally, Patel argues that the BIA erred by affirming the IJ’s denial of CAT protection. Patel
Br. at 22. An alien applying for CAT protection must prove “that it is more likely than not that he
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or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2);
see also Bonilla-Morales v. Holder, 607 F.3d 1132, 1139 (6th Cir. 2010). Further, the torture must
be “intentionally inflicted . . . at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1); see also Bonilla-
Morales, 607 F.3d at 1139. The BIA agreed with the IJ’s finding “that the respondent failed to
demonstrate that it is more likely than not that he will be tortured by or ‘at the instigation of or with
the consent or acquiescence of a public official or other person acting in an official capacity.’”
We are not compelled to conclude otherwise. Even accepting Patel’s testimony as true,
nowhere does he allege that the past threats came from any person acting in an official capacity.
Patel only argues–unaided by citation to the record–that “[s]evere corruption exists in the
government and the government is not in a position to assist” Patel. Patel Br. at 22. This hardly
compels the conclusion that Indian officials will “more likely than not” torture Patel upon his return.
III.
For these reasons, we DISMISS the petition for review.
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