Filed: Jan. 05, 2010
Latest Update: Mar. 02, 2020
Summary: 09-0102-ag Ghotra v. Holder BIA Videla, IJ A 073 418 186 A 075 330 325 A 075 330 326 A 075 330 327 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEA
Summary: 09-0102-ag Ghotra v. Holder BIA Videla, IJ A 073 418 186 A 075 330 325 A 075 330 326 A 075 330 327 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEAR..
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09-0102-ag
Ghotra v. Holder
BIA
Videla, IJ
A 073 418 186
A 075 330 325
A 075 330 326
A 075 330 327
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 5 th day of January, two thousand ten.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 BARRINGTON D. PARKER,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 ______________________________________
12
13 TARSEM SINGH GHOTRA, SWARN KAUR
14 GHOTRA, KULVINDER SINGH GHOTRA, AND
15 JASVINDER SINGH GHOTRA
16 Petitioners,
17 v. 09-0102-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL, *
21 Respondent.
22 ______________________________________
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR PETITIONERS: Saul C. Brown, New York, New York.
2
3 FOR RESPONDENT: Tony West, Assistant Attorney
4 General; John S. Hogan, Senior
5 Litigation Counsel; Kathleen Kelly
6 Volkert, Attorney, Office of
7 Immigration Litigation, United
8 States Department of Justice,
9 Washington, D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED, that the petition for review
14 is DENIED.
15 Petitioners, natives and citizens of India, seek review
16 of a December 12, 2008 order of the BIA affirming the May
17 15, 2007 decision of Immigration Judge (“IJ”) Gabriel C.
18 Videla, which denied their applications for asylum,
19 withholding of removal, and relief under the Convention
20 Against Torture (“CAT”). In re Tarsem Singh Ghotra, Swarn
21 Kaur Ghotra, Kulvinder Singh Ghotra, Jasvinder Singh Ghotra,
22 Nos. A 073 418 186, A 075 330 325, A 075 330 326, A 075 330
23 327 (B.I.A. Dec. 12, 2008), aff’g Nos. A 073 418 186, A 075
24 330 325, A 075 330 326, A 075 330 327 (Immig. Ct. N.Y. City
25 May 15, 2007). We assume the parties’ familiarity with the
26 underlying facts and procedural history in this case.
27 When the BIA adopts the decision of the IJ and
2
1 supplements the IJ’s decision, we review the decision of the
2 IJ as supplemented by the BIA. See Yan Chen v. Gonzales,
3 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s
4 factual findings under the substantial evidence standard.
5 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. DHS,
494 F.3d
6 281, 289 (2d Cir. 2007). We review de novo questions of law
7 and the application of law to undisputed fact. See
8 Salimatou Bah v. Mukasey,
529 F.3d 99, 110 (2d Cir. 2008).
9 I. Tarsem Singh Ghotra
10 After initially having been granted asylum, Tarsem
11 Singh Ghotra’s asylee status was terminated upon a finding
12 that he had committed fraud in his initial asylum
13 proceeding. After a second asylum hearing, the IJ found
14 Ghotra not credible. We find no error in that
15 determination.
16 As a preliminary matter, Ghotra does not challenge the
17 IJ’s findings that: (1) his testimony that only Swarn,
18 Kulvinder, and Jasvinder were included in his application
19 for adjustment of status was inconsistent with his statement
20 that he signed the application while it was blank and never
21 reviewed it; (2) his testimony that Dalvir Ghotra was his
22 nephew’s “true and correct name” was inconsistent with a
3
1 fingerprint check proving the nephew’s name to be “Jasvir
2 Singh”; (3) his testimony on direct examination that he did
3 not know how his new attorney could have obtained Dalvir’s
4 name and birth date in order to prepare the fraudulent birth
5 certificate was inconsistent with his testimony on cross
6 examination that the attorney ordered his file from a
7 previous attorney; and (4) his testimony that his family
8 moved to Punjab after he fled India was inconsistent with
9 Swarn and Jasvinder’s testimony that the family remained in
10 Delhi during that time. Accordingly, those findings stand
11 as valid bases for the IJ’s adverse credibility
12 determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146
13 (2d Cir. 2008).
14 Ghotra argues that, in finding him not credible, the IJ
15 erred by relying on several instances of fraud. However, as
16 we have made clear, an adverse credibility determination may
17 be based on the applicant’s submission of a false document
18 as evidence in an asylum proceeding. See Siewe v. Gonzales,
19
480 F.3d 160, 170 (2d Cir. 2007) (once an IJ concludes that
20 a document is false, he or she is “free to deem suspect
21 other documents (and to disbelieve other testimony) that
22 depend for probative weight upon [the applicant’s]
4
1 veracity”). Here, the IJ found that Ghotra: (1)
2 fraudulently included Dalvir Ghotra as his son on his asylum
3 application; (2) falsely testified that Dalvir was his son
4 at his asylum interview; and (3) submitted a fraudulent
5 birth certificate for Dalvir with his asylum application.
6 Given this fraudulent testimony and evidence, the IJ was
7 free to disbelieve the balance of Ghotra’s claim. See id.
8 Accordingly, substantial evidence supports the IJ’s adverse
9 credibility determination. See Corovic v. Mukasey,
519 F.3d
10 90, 95 (2d Cir. 2008). Because Ghotra failed to establish
11 his eligibility for asylum due to his lack of credibility,
12 he also failed to meet the higher standard required for
13 withholding of removal. See Paul v. Gonzales,
444 F.3d 148,
14 156 (2d Cir. 2006).
15 II. The Remaining Petitioners
16 Although the IJ did not make an adverse credibility
17 determination with respect to the remaining petitioners, the
18 IJ reasonably found that they failed to establish either
19 past persecution or an objectively reasonable fear of future
20 persecution. Swarn Ghotra testified that she was “bothered”
21 by her neighbors for being a Sikh, but stated that she was
22 never physically mistreated. Furthermore, Kulvinder and
5
1 Jasvinder testified that they were harassed by the police,
2 but Jasvinder stated that the harassment occurred only twice
3 in the seventeen years he lived in India, and neither
4 sibling was ever arrested, beaten, or detained by police.
5 Such “mere harassment” does not rise to the level of
6 persecution. Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d
7 332, 341 (2d Cir. 2006).
8 To establish asylum eligibility absent a showing of
9 past persecution, an applicant must show that he or she
10 subjectively fears persecution and that this fear is
11 objectively reasonable. Ramsameachire v. Ashcroft,
357 F.3d
12 169, 178 (2d Cir. 2004). A fear is objectively reasonable
13 “even if there is only a slight, though discernible, chance
14 of persecution.” Diallo v. INS,
232 F.3d 279, 284 (2d Cir.
15 2000) (citing INS v. Cardoza-Fonseca,
480 U.S. 421, 431
16 (1987)). On the other hand, a fear is not objectively
17 reasonable if it lacks “solid support” in the record and is
18 merely “speculative at best.” Jian Xing Huang v. INS, 421
19 F.3d 125, 129 (2d Cir. 2005).
20 The IJ found no evidence indicating that Swarn Ghotra
21 would be persecuted if returned to India. The IJ also found
22 that Kulvinder and Jasvinder did not establish a well-
6
1 founded fear of future persecution because: (1) there was no
2 evidence that the police would remember them or their father
3 some ten years after they fled India; and (2) they no longer
4 wore long hair and beards, identifying characteristics of
5 Sikhs in India. The IJ also found that Kulvinder’s claim
6 that the police would remember him because he had a “record”
7 was undermined by his father’s testimony that the Punjab
8 police reported to the Delhi police that he was not a
9 criminal. Finally, the IJ found no pattern or practice of
10 persecution against Sikhs in India, observing that: (1)
11 India elected a Sikh prime minister in 2004; (2) the 2006
12 State Department Country Report on India did not discuss any
13 instances in which Sikhs were persecuted; and (3) the 1999
14 Country Report on India noted that the U.N. found a “climate
15 of religious tolerance” in India. Therefore, the IJ
16 reasonably concluded that the petitioners’ claims were
17 “speculative at best,” and thus did not err in rejecting
18 their applications for asylum. Jian Xing Huang, 421 F.3d at
19 129.
20 The IJ also did not err in finding that, because the
21 petitioners were unable to show the objective likelihood of
22 persecution needed to make out an asylum claim, they were
23 necessarily unable to meet the higher standard required to
7
1 succeed on a claim for withholding of removal. See Paul,
2 444 F.3d at 156. Petitioners do not challenge the agency’s
3 denial of their claims for CAT relief.
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
16 By:___________________________
8
