Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-18-2006

Solanki v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3291




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                                                                    NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-3291


                              SHYAM BHIKA SOLANKI,

                                                       Petitioner

                                            v.

                         ALBERTO R. GONZALES,
                 ATTORNEY GENERAL OF THE UNITED STATES,

                                                       Respondent


                    On Petition For Review From The Decision Of
                          The Board Of Immigration Appeals
                                   No. A95 369 103
                  Immigration Judge: Honorable Charles M Honeyman


                       Submitted Under Third Circuit LAR 34.1(a)
                                    April 28, 2006

                    Before: AMBRO and FUENTES, Circuit Judges
                             and IRENAS,* District Judge

                                  (Filed May 18, 2006)



                                        OPINION



  *
    The Honorable Joseph E. Irenas, Senior District Judge for the District of New Jersey,
sitting by designation.
IRENAS, Senior District Judge

       Petitioner Shyam Bhika Solanki (“Solanki”) appeals the order of the Board of

Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) opinion and order

denying Solanki’s application for asylum, 8 U.S.C. § 1158, withholding of removal, 8

U.S.C. § 1231(b)(3), and relief under the United Nations Convention Against Torture and

Other Forms of Cruel, Inhuman and Degrading Treatment or Punishment (“CAT”).1

Pursuant to 8 U.S.C. § 1252, we have jurisdiction over this timely petition for review of

the BIA’s final determination. For the reasons set forth below, we will deny the petition.

                                             I.

       Solanki is a Kenyan citizen of Indian ethnicity. He was admitted to the United

States as a visitor on April 27, 2001, for a temporary period not to exceed November 26,

2001. On January 7, 2002, Solanki applied for asylum and withholding of removal. In

February, 2002, the Department of Homeland Security served Solanki with a Notice To

Appear, charging that he had exceeded the time he was permitted to remain in the United

States. After conceding removability, Solanki asserted his asylum, withholding of

removal, and CAT claims at a hearing before the IJ. Specifically, Solanki asserted that,

while in Kenya, he suffered persecution because of his Indian ethnicity and feared future

persecution if he returned to Kenya.

       In support of his case, Solanki recounted three separate robberies he suffered in


  1
    CAT has been implemented by regulations codified at 8 C.F.R. §§ 208.16 and
208.18.

                                             2
Kenya. In 1992, three unknown men of African descent robbed Solanki of approximately

120,000 Kenyan shillings, beating him and stabbing him in the torso with a knife.

Solanki was conducting business at the time and the cash he carried was from a recent

transaction with a customer. Solanki reported the crime to the police but the men were

never caught.

       Similarly, in 1998, three unknown men entered Solanki’s car while he was looking

for a parking space near a bank. They forced him to drive for approximately two hours to

Buruburu, located outside Nairobi. Upon arrival, the three men ordered Solanki out of

the car and then kicked him and threw him to the ground, dislocating and fracturing his

shoulder. They stripped him down to his underwear and then stole company money,

Solanki’s personal property (including rings and cash) and the car. A passing motorist

drove Solanki to the police station where he reported the crime. Approximately a year

later the police recovered the car but never found the attackers.

       Solanki was robbed once again in 2000 while walking home from work. A group

of unknown men of African descent pointed a gun at Solanki, forcing him to give them

his wallet. The men threatened to kill Solanki if they ever saw him again. This time

Solanki did not report the crime to the police.

       Solanki believes he was a target of these attacks because he is an Indian and

Indians in Kenya are known to be businessmen. Therefore, Solanki explained, Indians

are perceived to be wealthy by the poorer Kenyans, who are most often of African




                                              3
descent.2 Solanki also submitted the U.S. Department of State Country Report for Kenya

for the year 2000, which states:

        There is widespread resentment among the citizens of African ethnicity
        toward Asians living in the country. The Asian community constitutes
        between 0.5 and 1 percent of the total population. . . . Many African
        Kenyans resent persons of Asian descent for their affluence, and for
        their reluctance to assimilate African culture and to employ blacks,
        particularly in management positions. They also see Asians as taking
        jobs and commercial opportunities. . . . Politicians, both opposition and
        ruling party, from time to time, appeal to the majority prejudices by
        attacking Asian citizens, accusing them of exploiting and usurping the
        natural inheritance of African citizens.

        Solanki further testified that he was once fired from a management position

because he received anonymous threats,3 causing his boss to be concerned that the

business would be at risk if Solanki continued to work for him.

                                            II.

        Because the BIA affirmed without opinion the IJ’s order denying relief, we review

the IJ’s decision. Berishaj v. Ashcroft, 

, 322 (3d Cir. 2004). Factual

findings must be upheld if supported by substantial evidence. Singh v. Gonzalez, 

, 195 (3d Cir. 2005); see also 8 U.S.C. § 1252(b)(4)(B) (“administrative findings

of fact are conclusive unless any reasonable adjudicator would be compelled to the

contrary”). “If a reasonable fact finder could make a particular finding on the


  2
    Solanki testified that most businesses in Kenya are owned by Indians: “Dunkin
Donuts, 7-11– everything is by Indian [sic]. The people who work under you is [sic] the
black people.”
  3
      The nature of these threats is not described in the record.

                                                  4
administrative record, then the finding is supported by substantial evidence. Conversely,

if no reasonable fact finder could make that finding on the administrative record, the

finding is not supported by substantial evidence.” 

(quoting

Dia v. Ashcroft, 

, 249 (3d Cir. 2003)(en banc)).

                                            III.

                                             A.

       The IJ held that Solanki was not eligible for asylum because the evidence did not

establish Solanki had personally suffered past persecution or had a well-founded fear of

future persecution.4 The IJ determined that the robberies and threats Solanki experienced

did not amount to persecution because nothing in the record “suggest[ed] that the

motivation [for the robberies and threats] was, even in part, on the basis of a protected

ground, such as a respondent’s race or, in this case, ethnicity as described as Indian.”

       “To establish eligibility for asylum, an applicant must demonstrate past

persecution by substantial evidence or a well-founded fear of persecution that is both

subjectively and objectively reasonable.” 

. The persecution must

also be “on account of race, religion, nationality, membership in a particular social group,

or political opinion.” 8 U.S.C. § 1101(a)(42)(A)(emphasis added).

       The IJ held, and we agree, that Solanki failed to establish the requisite connection


  4
     The IJ also held that the evidence did not establish a widespread “pattern or
practice,” 8 C.F.R. § 208.13(b)(2), of persecution against Indians in Kenya on a
nationwide basis. Solanki does not challenge this aspect of the IJ’s ruling; therefore, we
do not address it.

                                              5
or nexus between his ethnicity and the asserted persecution.5 Section 1101(a)(42)(A)

“‘makes motive critical.’” Lie v. Ashcroft, 

, 535 (3d Cir. 2005) (quoting INS

v. Elias-Zacarias, 

(1992)). Thus, an applicant for asylum “‘must provide

some evidence of motive, direct or circumstantial. And if he seeks to obtain judicial

reversal of the BIA’s determination, he must show that the evidence he presented was so

compelling that no reasonable factfinder could fail to find the requisite fear of

persecution.’” 

original); see also Singh, 

, 197 (“[A]n

applicant must show that the persecution was motivated, at least in part, by one of the

protected characteristics.”)(emphasis in original).

       Here, Solanki’s evidence is almost entirely lacking with respect to motivation

based on his ethnicity. Moreover, the evidence in the record certainly is not so

compelling for us to conclude that the IJ was unreasonable in failing to find that the

robberies resulted from even a mixed motive. Solanki did not put forth any evidence that

any of his attackers ever uttered an ethnic slur or insult.6 Contrast 

     Because we will deny the petition on other grounds, we assume without deciding that
Solanki’s injuries resulting from the robberies, along with the threat to his life, were
sufficiently severe to constitute persecution. However, we note that this Court has
previously held that “[s]imple robbery, in isolation, while unfortunate and troubling, does
not seem to [constitute persecution]. . . . [T]wo isolated criminal acts, perpetrated by
unknown assailants, which resulted only in the theft of some personal property and a
minor injury, is not sufficiently severe to be considered persecution.” Lie v. Ashcroft, 

, 536 (3d Cir. 2005); see also DeSouza v. INS, 

, 1159 (7th Cir.
1993)(holding that private racial discrimination and harassment of a Kenyan citizen of
Indian descent does not establish persecution).
  6
     We further note that even if Solanki had submitted such evidence, that evidence by
itself probably would not be sufficient. See 

(a “single ethnic slur”

                                              6
198-99 (concluding that police officers who beat Singh were at least partially motivated

by his dissenting political opinions because they talked about his political activities while

they beat him and threatened to kill him if he continued his activities). Nor was there any

particular character to the robberies and threats that would allow the inference that the

assailants’ actions were meant to convey a message consistent with hatred toward ethnic

Indians.

       We agree with the IJ that the only motivation disclosed by these three incidents,

which occurred over the span of approximately eight years, is a desire for wealth and

resentment towards those with wealth. See also Patel v. Gonzalez, 126 Fed. Appx. 283,

291 (6th Cir. 2005) (non-precedential opinion) (holding that the robberies of Patel, a

Kenyan citizen of Indian descent, by Kenyans of African descent “were simply indicative

of resentment towards Patel due to his wealth. . . . As the Immigration Judge found, the

incidents of robbery are attributable to class tensions and Patel’s affluence, rather than to

persecution.”). Therefore we conclude that the IJ’s decision with respect to Solanki’s

asserted past persecution or well-founded fear of future persecution was supported by

substantial evidence.

                                              B.

       We also hold that the IJ’s decision denying withholding of removal and CAT

protection was supported by substantial evidence. An applicant’s burden of proof with



uttered during a robbery was insufficient to establish that the thieves were motivated by
the applicant’s ethnicity).

                                              7
respect to both of these claims is significantly higher than his burden for an asylum claim.

To obtain withholding of removal, an applicant must establish that it is more likely than

not that he will face persecution if he is deported. 8 U.S.C. § 1231(b)(3); Chen v.

Ashcroft, 

, 223 (3d Cir. 2004)(“An alien who fails to establish that he or she

has a well-founded fear of persecution, so as to be eligible for a grant of asylum,

necessarily will fail to establish the right to withholding of removal.”). Similarly, an

applicant seeking CAT protection must establish that it is more likely than not that he

would be tortured if removed to the proposed country of removal. Wang v. Ashcroft, 

, 348 (3d Cir. 2004) (“the standard for invocation of the CAT is more stringent

than the standard for granting asylum”). Because the evidence discussed above does not

establish that Solanki has a well-founded fear of persecution, we agree with the IJ that the

evidence is insufficient to support either a withholding of removal or CAT claim.

                                           IV.

       Based on the foregoing we deny Solanki’s Petition for Review in its entirety.




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