IMG-031 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 12-1911
____________
JINESH JASHBHAI PATEL;
SHILPA BEN JINESH KUMAR PATEL;
POOJA JINESH KUMAR PATEL,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES
__________________________________
Petition For Review of an Order
of the Board of Immigration Appeals
(Agency Nos. A079-326-664, A079-326-665, A079-326-666)
Immigration Judge: Alberto J. Riefkohl
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 2, 2013
Before: RENDELL, ALDISERT and NYGAARD, Circuit Judges
(Opinion filed: January 11, 2013 )
____________
OPINION OF THE COURT
____________
PER CURIAM
Jinesh Jashbhai Patel, his wife Shilpa Ben Jinesh Patel and daughter Pooja Jinesh
Kumar Patel, petition for review of the Board of Immigration Appeals’ final order of
removal. For the reasons that follow, we will deny the petition for review.
The Patels are citizens of Kenya but they are natives of India and Hindus. They
were admitted to the United States in November, 2000 as non-immigrant visitors and
overstayed. On June 21, 2001, Jinesh Patel filed an application for asylum, claiming that
he feared that he and his family would be harmed in Kenya because of their nationality
and religion. On July 30, 2001, the former Immigration & Naturalization Service served
the family with Notices to Appear, which charged that they are removable pursuant to 8
U.S.C. § 1227(a)(1)(B) for remaining in the United States for a time longer than
permitted.1 On August 30, 2001, the Patels appeared in Immigration Court and conceded
that they are removable as charged. Later when their attorney failed to appear, they were
ordered removed, but they were successful in getting their case reopened. Thereafter,
their separate applications for asylum, withholding of removal, and protection under the
Convention Against Torture were considered on the merits.
In support of the family’s claims, Jinesh Patel testified that he and his wife lived
happily and prosperously in Kenya for many years. He owned two printing businesses
and a photo processing lab in the cities of Mombasa and Malindi. Things changed during
the 1997 Kenyan parliamentary elections, when he was printing for everyone who was
standing for election, including an opponent of the incumbent Minister of Parliament,
Sharif Nasir from the KANU political party. Patel testified that Nasir came to his store,
complained that he (Patel) was supporting the opposition, and threatened to kill him.
Nasir declared that Patel was not supposed to be in Kenya. In May, 1998, Patel became
1
The Patels have a second daughter who is a United States citizen and is not in removal
proceedings.
2
aware of a growing hostility by native Kenyans toward the more prosperous Indian
community. He learned that someone was shot dead in his shop. In April, 1999, he was
extorted by two individuals posing as police officers. To avoid being arrested and falsely
charged with receiving stolen property, Patel, with the help of a friend, negotiated a
payment of 40,000 shillings; the extortionists took the money and left. On May 30, 1999,
five strangers came to his photo shop and one of them put a gun to his head. These
individuals kicked Patel in the stomach, insulted him with racial slurs, threatened to hurt
him if he went to the police, and robbed the store of cash and cameras, allowing only an
ethnic African customer to keep his expensive camera.
After this robbery, Patel called the police, who came to the shop but would not
dust for fingerprints, stating that it would not help. Immediately after reporting this
robbery, Patel and his wife began receiving numerous daily anonymous telephone calls,
in which the caller threatened to kill them and kidnap their daughter. Patel went to the
police station where he was told to stop worrying. There was no progress regarding the
May, 1999 robbery and Patel began to doubt that the police were going to help him. The
calls continued, and, in July, 1999, Shilpa, who was then six months pregnant, was
attacked on the street and thrown to the ground, a knife was put to her throat, and her
attackers began to tear her clothes. She screamed for help, and, although native Kenyan
bystanders would not come to her aid, her attackers eventually fled after stealing her
necklace. Patel and Shilpa reported the attack to the police but they would not send an
officer because they did not have an available police car.
3
On September, 4, 1999, Patel was working late at night in his photo processing
shop when two police officers came in and harassed him until he gave them the money in
his cash register. Patel chose not to report the incident to the police because he did not
believe they would help. On September 7, 1999, Patel discovered that the locks on the
photo shop had been cut off and the store had been completely cleaned out. The security
guard Patel had hired to watch the shop was gone, along with most all of the equipment.
Patel called the police, who examined the scene and made a report but again declined to
dust for fingerprints. Thereafter, the family continued to receive threatening telephone
calls. Patel was aware that some Kenyan politicians were fanning ethnic animosity. He
spent the next year winding up his business affairs and then departed Kenya for the
United States.
Shilpa Patel also testified, and she corroborated the attempted rape incident. The
Patels submitted background evidence concerning the past and current relationship
between the ethnic Indian business community and native Kenyans, including newspaper
articles reporting on crimes against business owners. They also submitted police reports
dated May 30, 1999 and October 7, 1999, an insurance claim dated September 16, 1999,
and affidavits from family and friends.
On January 10, 2011, the Immigration Judge issued a written decision, denying the
Patels’ applications. The IJ found that the Patels were credible (although he noted
several inconsistencies in their case), and that they had provided corroboration for their
claim, but concluded that they had failed to meet their burden of proof because the harm
they suffered in Kenya was not so severe as to constitute persecution. The IJ determined
4
that the telephone threats and the one in-person threat by Nasir were neither highly
imminent nor particularly menacing, citing Li v. Att’y Gen. of the U.S., 400 F.3d 157,
164 (3d Cir. 2005), and the Patels had failed to show that any of the subsequent incidents
were linked to Nasir and his imputed political opinion threat. The IJ determined that the
incidents of robbery, harassment, extortion, and burglary also did not amount to
persecution, citing Fatin v. Immigration & Naturalization Serv., 12 F.3d 1233, 1240 (3d
Cir. 1993). The Patels received only minor injuries, and crimes directed at the wealthy
and indicative of general lawlessness and violence do not establish a claim for asylum
under the Immigration & Nationality Act, see Lie v. Ashcroft, 396 F.3d 530, 533 (3d Cir.
2005). The Patels failed to show that the burglary, thefts, and robbery were motivated,
even in part, by their ethnicity, religion, or political opinion, imputed or otherwise;
instead, the evidence showed resentment toward the Patels because of their wealth.
Moreover, the Kenyan police, although inept, responded or at least tried to respond to the
Patels’ calls for assistance. Accordingly, the Patels did not show past persecution.
The Immigration Judge also concluded that the Patels did not demonstrate a well-
founded fear of future persecution because the objective evidence did not establish that
they would be singled out for persecution by the Kenyan government on account of a
protected ground. Noting the Patels’ background evidence regarding the 2007 election-
related violence, the IJ concluded that the Patels did not prove that their alleged
persecutors from 10 years ago would still have any interest in them. Moreover, the
election violence ended in 2008 when the two sides agreed to form a coalition
government. Referring to the 2009 State Department Country Report, the IJ further
5
concluded that the evidence did not support a finding that there existed a pattern or
practice of persecution of Kenya’s prosperous minority ethnic Indian population. The IJ
denied the Patels’ claim for withholding of removal, and further concluded that they had
not shown that it is more likely than not that they would be tortured by or with the
consent of the Kenyan government. The IJ ordered the Patels removed to Kenya, with an
alternative order of removal to India.
The Patels appealed to the Board of Immigration Appeals, arguing that the IJ did
not give sufficient weight to their testimony and evidence, the IJ erred in concluding that
their pattern or practice claim lacked merit, the IJ exceeded his authority in violation of
their right to due process, and the IJ engaged in improper speculation.
On March 6, 2012, the Board affirmed the IJ’s decision and dismissed the appeal,
concluding that the IJ correctly found that the Patels did not prove harm amounting to
past persecution or a well-founded fear of future persecution. The Board concluded that
the IJ did not violate the Patels’ due process rights because he did not base his decision
on personal opinion or speculation, and the IJ did not fail to give sufficient weight to the
Patels’ evidence. The Board noted its agreement with the IJ that the Patels suffered no
serious harm amounting to persecution; that the threats they received were not so
imminent as to constitute persecution; and that they did not present sufficient evidence to
demonstrate that any harm they suffered was on account of their race, social group, or
religion. Although the evidence showed that violent crime by native Kenyans, including
robbery, kidnapping, extortion, and murder, was common in Kenya, and that the victims
were frequently Indian, it did not show that the criminals were motivated by anything
6
other than money, and for this reason the Patels did not show a well-founded fear of
persecution based on a protected ground. The 2009 Country Report showed a high level
of crime and violence in Kenya, but the generalized lawlessness was not a pattern or
practice of persecution related to any protected category, and, in any event, the evidence
indicated that the Kenyan government does not ignore ethnic violence, and was
attempting to fight the crime, even if its efforts have not been effective. The Board
affirmed the IJ’s statutory withholding of removal and CAT conclusions.
The Patels have petitioned for review of the Board’s decision. We have
jurisdiction under 8 U.S.C. § 1252(a)(1), (b)(1). The Patels have argued in their opening
brief that the agency erred in concluding that they did not meet their burden of proof, and
the agency violated procedural due process when it ignored evidence which had not been
fully developed because the IJ adjourned the initially scheduled hearing at which
witnesses from far away were present to testify.
We will deny the petition for review. We consider both the Board’s and the IJ’s
decisions where the Board substantially relies on the IJ’s decision, as it did here. Kaita v
Att’y Gen of the U.S., 522 F.3d 288, 296 (3d Cir. 2008). The agency’s factual
determinations are upheld if they are supported by reasonable, substantial, and probative
evidence on the record considered as a whole. Immigration & Naturalization Serv. v.
Elias-Zacarias, 502 U.S. 478, 481 (1992). Under this deferential standard, the petitioner
must establish that the evidence does not just support a contrary conclusion but compels
it. See id. at 481 n.1; Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).
7
The Immigration & Nationality Act gives the Attorney General discretion to grant
asylum to any person who is unable or unwilling to return to his country “because of
persecution or a well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. §
1101(a)(42)(A). The applicant has the burden of proof. 8 C.F.R. § 1208.13(a). An
asylum applicant must show either that he has been subject to past persecution or has a
well-founded fear of future persecution, and the persecution must be on account of one of
the five statutory bases. 8 C.F.R. § 1208.13(b). It is presumed that an applicant who
establishes that he suffered past persecution has a well-founded fear of persecution, see
id. at § 1208.13(b)(1), but if the applicant cannot show past persecution, he may still
establish a well-founded fear of future persecution by demonstrating a subjective fear of
persecution, and that a reasonable person in his circumstances would fear persecution if
returned to the country in question, Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.
2003).
The record in the Patels’ case does not compel the conclusion that they suffered
persecution in Kenya prior to coming to the United States. Persecution is defined as
“threats to life, confinement, torture, and economic restrictions so severe that they
constitute a threat to life or freedom.” Kibinda v. Att’y Gen. of U.S., 477 F.3d 113, 119
(3d Cir. 2007) (quoting Fatin, 12 F.3d at 1240). It refers only to “severe” conduct and
“does not encompass all treatment our society regards as unfair, unjust or even unlawful
or unconstitutional.” Id. As the agency determined, the Patels were victims of crime;
their businesses were robbed and burglarized and Mrs. Patel was violently assaulted
8
when she was six months pregnant. The Patels did not claim that they were seriously
physically injured, and, although they were upset and suffered financial losses, the upset
and economic loss resulting from these events was not so extreme that it constituted
persecution. See Konan v. Att’y Gen. of the U.S., 432 F.3d 497, 506 (3d Cir. 2005)
(mere generalized violence and lawlessness are not sufficient basis for grant of asylum).
Similarly, the threats and harassment the Patels experienced were insufficient to establish
persecution. See Li, 400 F.3d at 164 (“[U]nfulfilled threats must be of a highly imminent
and menacing nature in order to constitute persecution.”) The telephone threats and the
threat by Nasir were not highly imminent. Moreover, although Nasir’s threat may have
imputed a political opinion to Mr. Patel, there was a complete failure to show that any of
the subsequent incidents were linked to Nasir and his threat. 8 C.F.R. § 1208.13(b)
(persecution must be on account of one of the five statutory bases); Singh v. Gonzales,
406 F.3d 191, 197 (3d Cir. 2005) (applicant must show that persecution was caused at
least in part by one of protected characteristics). The Patels’ argument linking the
incidents together and attempting to show that they signified something other than a
string of opportunistic crimes, see Petitioner’s Brief, at 10, is speculative at best.
For similar reasons, the record does not compel the conclusion that the Patels have
a well-founded fear of persecution. To establish a well-founded fear of persecution, the
Patels had to prove either that they will be individually targeted for persecution in Kenya,
or prove that there is a pattern or practice of persecution in Kenya of the minority
population of Indian Hindus. 8 C.F.R. § 1208.13(b)(2)(iii), (iii)(A). The record does not
compel the conclusion that the Patels will be individually targeted for persecution in
9
Kenya in the future. The telephone threats and criminal acts occurred more than 10 years
ago and the Patels pointed to no specific person who would now be interested in harming
them. The election-related violence in 2007, which has long since abated, does not
objectively prove that the Patels will be singled out for future harm because they are
ethnic Indian Hindus. In short, substantial evidence supports the agency’s determination
that the Patels’ evidence was insufficient with respect to motivation based on ethnicity
and religion. see Lie, 396 F.3d at 535. The evidence showed only that robberies and
thefts directed at the prosperous Indian community are opportunistic and motivated by a
desire for money.
In addition, the 2009 Country Report does not, as the agency concluded, support a
conclusion that there exists a pattern or practice of persecution of Kenya’s ethnic Indian
Hindus. The Country Reports show that crime is rampant in Kenya and that the police
are ineffective and possibly also corrupt, but the evidence presented by the Patels is not
meaningfully different from that presented in Lie, which concerned attacks by native
Muslim Indonesians against the more prosperous Chinese Christian community. There
we held that the attacks were perpetrated by individuals and were not the result of
government action or acquiescence, and thus the pattern or practice argument failed. 396
F.3d at 537-38. The same reasoning applies to the Patels’ pattern or practice claim.
Violence or other harm perpetrated by civilians against the applicant’s group does not
constitute persecution unless such acts are “committed by the government or forces the
government is either unable or unwilling to control.” Abdulrahman v. Ashcroft, 330 F.3d
587, 592 (3d Cir. 2003) (internal quotation marks removed). Substantial evidence
10
supports the agency’s determination in the Patels’ case that the Kenyan government does
not ignore crime directed at prosperous Indian businesses.
Because the Patels failed to show past persecution or a reasonable fear of future
persecution under the lower burden of proof required for asylum, they are necessarily
ineligible for withholding of removal. See Immigration & Naturalization Serv. v.
Cardoza-Fonseca, 480 U.S. 421, 430-32 (1987). In addition, the agency held that the
Patels did not meet their burden of establishing that it is more likely than not that they
will be tortured in Kenya, 8 C.F.R. §§ 1208.16, 1208.18, and the record does not compel
a different conclusion.
Last, we lack jurisdiction to consider the Patels’ procedural due process claim. An
asylum applicant must exhaust all administrative remedies available as a prerequisite to
raising a claim before this Court. 8 U.S.C. § 1252(d)(1); Wu v. Ashcroft, 393 F.3d 418,
422 (3d Cir. 2005). Failure to present an issue to the agency constitutes a failure to
exhaust. See Lin v. Att’y Gen. of U.S., 543 F.3d 114, 119-20 (3d Cir. 2008). We have
carefully reviewed the Patels’ brief on appeal to the Board, as well as their notice of
appeal to the Board, see generally Petitioner’s Reply Brief, at 6, but we disagree with
their argument that as a matter of fact they raised a claim before the Board that their
procedural due process rights were violated when the IJ adjourned a scheduled hearing
and certain witnesses were not allowed to give testimony. Moreover, the claim is
correctable through the administrative process, and thus fully subject to the exhaustion
requirement. See Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d Cir. 2005).
For the foregoing reasons, we will deny the petition for review.
11