Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-25-2005
Patel v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4318
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4318
MUKESH KUMAR PATEL; HEMLATA PATEL;
KAVISH PATEL; DHARMESH PATEL,
Petitioners
v.
ATTORNEY GENERAL
OF THE UNITED STATES*
Respondent
On Petition for Review from an Order of the
Board of Immigration Appeals
( A73-162-623; A70-868-375;
A77-729-595; A77-729-594)
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 18, 2005
BEFORE: SCIRICA, Chief Judge, VAN ANTWERPEN and COWEN, Circuit Judges
(Filed: October 25, 2005 )
OPINION
COWEN, Circuit Judge.
Mukesh Kumar Patel, his wife Hemlata Patel and their children Dharmesh and
Kavish, each a Hindu native and citizen of India, petition for review of an order of the
Board of Immigration Appeals (the “Board”) adopting and affirming the Immigration
Judge’s ( the “IJ”) decision denying their applications for asylum and withholding of
removal under the Immigration and Nationality Act, and relief under the Convention
Against Torture (“CAT”). The Patels contend that the IJ’s adverse credibility
determination was not supported by substantial evidence as the inconsistencies pointed to
were minor and did not go to the heart of the asylum claim. We have jurisdiction
pursuant to 8 U.S.C. § 1252(a)(1) and will deny the petition for review.
As we write solely for the parties, we only provide a brief recitation of the facts.
According to Mukesh Kumar Patel, he was victimized by a radical Hindu party called the
“RSS” who targeted him for treating Muslims well. Specifically, in December 1992
when he was visiting his in-laws in Mumbai (formerly known as Bombay), he provided
shelter for two Muslims who were being attacked by a Hindu mob. After the Muslims
left, he testified that the neighbors verbally accosted him and telephoned the RSS.
Members of the RSS subsequently arrived and beat him on his face. When he tried to
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report the incident, the police allegedly taunted him for complaining against Hindus in
favor of Muslims and refused to file his complaint.
The next incident allegedly occurred in February 1993 when RSS radicals came to
the Patels’ home in Gujarat. The radicals allegedly told Mukesh Kumar Patel that he
could not hide from them and that he would be forgiven only if he donated money to
build a Hindu temple. When he refused, the radicals beat him until some neighbors
stepped in and saved his life. Once again, the police sided with the radicals telling him
that as a Hindu he should not be protecting Muslims. The RSS subsequently threatened
to kill him as an example to others not to interfere with them. When he went to the
police, they again refused to take any action.
Mukesh Kumar Patel stated that he left India and came to the United States in July
1993 because he feared for his life. His wife did not enter the United States until August
1995 and his children not until December 1999. On behalf of himself and his family,
Mukesh Kumar Patel filed an asylum application in 2001. The IJ denied the Patels
asylum, withholding of removal, and protection under CAT, but granted them voluntary
departure. The Board adopted and affirmed the IJ’s decision and this petition for review
followed.
We review the denial of an asylum application for substantial evidence, and will
not disturb an administrative finding if it is “supported by reasonable, substantial and
probative evidence on the record considered as a whole.” Dia v. Ashcroft, 353 F.3d 228,
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247-50 (3d Cir. 2003) (citing 8 U.S.C. § 1105(a)(4)). “Substantial evidence is more than
a mere scintilla and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Senathirajah v. I.N.S., 157 F.3d 210, 216 (3d Cir.
1998) (internal quotation marks and citations omitted). We must sustain an adverse
credibility determination if it is supported by substantial evidence. See Xie v. Ashcroft,
359 F.3d 239, 242 (3d Cir. 2004); see also Balasubramanrim v. I.N.S., 143 F.3d 157, 161
(3d Cir. 1998). To obtain a reversal of an administrative decision, the alien must show
that the evidence he presented was so persuasive that any reasonable adjudicator would be
compelled to conclude to the contrary. I.N.S v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
The Patels contend that the IJ’s adverse credibility determination was not
supported by substantial evidence because the inconsistency between the written
statement and oral testimony was minor and did not go to the heart of their asylum claims.
First, the Patels contend that the supposed inconsistency between Mukesh Kumar Patel’s
writing in the application that the neighbors confronted him, and his oral testimony that
the neighbors observed him and reported him to the RSS, is not an inconsistency at all.
Like the application, his testimony indicated that he had a confrontation with his
neighbors. Alternatively, they argue that to the extent the statements are inconsistent, it
should have no bearing on the asylum claims as Mukesh Kumar Patel consistently
explained that the RSS and Hindu radicals persecuted him for providing shelter to
Muslims. We disagree.
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The record establishes that Mukesh Kumar Patel testified in contradiction to his
written asylum application. As the IJ points out, in his 2001 asylum application Patel
claims that in December 1992 his neighbors, not members of the RSS, confronted and
attacked him for assisting Muslims. 1 In his oral testimony, however, he implied that the
neighbors observed him helping the Muslims and they notified the RSS, who later
attacked him. During the hearing, Mukesh Kumar Patel could not explain this
inconsistency, other than by stating that “just now, the truth has come to my mind . . .
[a]nd I’m reminded . . . that it was the RSS which had beaten me and not my neighbors.
(App. at 115-16.) Despite the Patels’ argument to the contrary, this inconsistency is not
minor as the basis for seeking asylum and withholding is that due to their assistance of
Muslims, they would be subject to persecution in India. Mukesh Kumar Patel’s failure to
consistently identify his alleged persecutor with respect to one of the primary acts of
alleged persecution, clearly undermines his credibility.
Accordingly, we find that the primary inconsistency relied on by the IJ to support
his adverse credibility determination, goes to the heart of the Patels’ application and is
supported by substantial evidence in the record.
1
In his 1993 asylum application, Patel did not mention being beaten by any
individuals or groups. (App. at 374-75.) Further, that application stated that he was
targeted by Muslims, not by radical Hindus. Patel argues that the application should not
be considered because the attorney who prepared it stated the grounds for relief
incorrectly. However, Patel signed the application under oath and closer in time to the
alleged acts of persecution than the revised application. Because we find that the 2001
application supports the IJ’s adverse credibility determination, we need not rely on the
further inconsistencies contained in the 1993 application.
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For the foregoing reasons, the petition for review will be denied.
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