IMG-009                                                             NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 11-2215
                                       ___________

                                      HIREN PATEL,
                                              Petitioner

                                              v.

                  ATTORNEY GENERAL OF THE UNITED STATES,
                                                          Respondent
                     ____________________________________

                       On Petition for Review of an Order of the
                             Board of Immigration Appeals
                             (Agency No. A094-924-043)
                    Immigration Judge: Honorable Frederic G. Leeds
                      ____________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   December 1, 2011

           Before: SCIRICA, CHAGARES and GREENBERG, Circuit Judges

                                 (Filed:December 5, 2011 )
                                         _________

                                OPINION OF THE COURT
                                      _________

PER CURIAM.

       As we write primarily for the parties, who are familiar with the background of this

petition for review, we will but briefly recapitulate the relevant facts. Patel is a Hindu

citizen of India from the western state of Gujarat. Departing India on April 21, 2005,
Patel fled to Guyana and then Brazil, before crossing into the United States near Hidalgo,

Texas, on March 23, 2007. He was eventually apprehended and put into removal

proceedings.

       Patel filed an asylum application on February 9, 2008, claiming he was persecuted

in India due to his status as an outspoken member of the Bharatiya Janata Party (BJP).

The presiding Immigration Judge (IJ) denied his application, finding that Patel had not

testified credibly about his experiences in India and had failed to independently establish

a likelihood of future persecution.1 Administrative Record (A.R.) 31, 44. Alternatively,

the IJ concluded, ―even if he were credible, I do not believe he has a valid claim in light

of the fact that he could relocate in his home country, where he is part of the 80 percent

majority Hindu population and the Muslims who he claims he is having the problems

with represent 13 percent of the population in India.‖ A.R. 42. The Government ―ha[d]

been successful in proving the respondent has been able to relocate.‖ A.R. 44.

       The Board of Immigration Appeals (BIA) dismissed Patel’s appeal, as ―even

assuming that the Immigration Judge’s negative credibility determination on the issue of

past persecution [was] clearly erroneous,‖ Patel had failed to ―address the Immigration

Judge’s holding that even if his alleged mistreatment is credited, the government met its


1
  See 8 U.S.C. § 1101(a)(42)(A) (defining ―refugee‖ as one who suffers persecution on
the basis of race, religion, nationality, membership in a particular social group, or
political opinion); 8 C.F.R. § 1208.13(b)(1) (successfully demonstrating past persecution
yields presumption of well-founded fear of future persecution); see also Huang v. Att’y
Gen., 

, 380–81 (3d Cir. 2010); Zubeda v. Ashcroft, 

, 469 (3d
Cir. 2003).
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burden in rebutting the presumption of future persecution by presenting country

conditions which show that internal relocation is a viable option.‖2 A.R. 3–4. This

petition for review followed, challenging only the asylum and withholding of removal

outcomes.3

       We have jurisdiction under 8 U.S.C. § 1252 to review the decision of the BIA,

although we may review the IJ’s opinion to the extent that the BIA ―substantially relied

on that opinion.‖ Camara v. Att’y Gen., 

, 201 (3d Cir. 2009). ―We apply

substantial evidence review to agency findings of fact, departing from factual findings

only where a reasonable adjudicator would be compelled to arrive at a contrary

conclusion.‖ Demandstein v. Att’y Gen., 

, 655 (3d Cir. 2011) (per curiam)

(citations, quotations omitted). Due to the way in which the BIA resolved Patel’s appeal,

the only issue properly before us is whether the agency decisions, which found the

Government to have rebutted the presumption of (to the extent one existed) or an

independent fear of future persecution by showing both the plausibility of relocation

within India and changed country conditions, see Cheng v. Att’y Gen., 

, 183

n.4 (3d Cir. 2010), were supported by substantial record evidence.4 See Konan v. Att’y


2
  See Gambashidze v. Ashcroft, 

, 192–93 (3d Cir. 2004) (discussing
relocation and burden of proof).
3
  Patel waived Convention Against Torture claims by not including them in his opening
brief. See Dwumaah v. Att’y Gen., 

, 589 n.3 (3d Cir. 2010) (per curiam).
4
  In his opening brief, Patel continues to assail the IJ’s adverse credibility finding, and
argues that the agency decisions against him are rendered problematic, even in the
independent alternative, by the mere presence an adverse credibility determination. We
do not agree with this premise, as nothing forbids the BIA from assuming credibility and
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Gen., 

, 501 (3d Cir. 2005) (―It is a bedrock principle of administrative law

that judicial review of an agency’s decision is limited to the rationale that the agency

provides.‖).

       We conclude that the decisions are supported by the record. First, the country

reports suggest that the BJP was the dominant political force in Gujarat by 2008, A.R.

299, and much of the material regarding violence in Gujarat dates from far before this

time—indeed, there is a discussion of anti-Muslim violence instigated by the BJP, but

little detailing the converse. See, e.g., A.R. 297 (―The vast majority of persons of every

religious group lived in peaceful coexistence; however, there were organized communal

attacks against minority religious groups, particularly in states governed by the BJP.‖);

see also A.R. 304. This shift in power may have plausibly neutralized whatever threat

Patel would have faced in Gujarat. With regard to the question of relocation, the

Government had the burden of proof of showing that Patel ―could avoid future

persecution by relocating to another part‖ of India. 8 C.F.R. § 1208.13(b)(1)(i)(B),

(b)(1)(ii); Wang v. Gonzales, 

, 139 (3d Cir. 2005). India is a large,

populous nation, with a sizeable Hindu majority; moreover, the BJP, of which Patel is a

member, held power in several states as of 2008, including Gujarat. See A.R. 298–99.

We are not unsympathetic to Patel’s depiction of the hardship of relocation, but we



denying asylum regardless. Cf. Li v. Att’y Gen., 

, 164 (3d Cir. 2005) (when
BIA identified error, assumed credibility, and found the petitioner to have nevertheless
failed to satisfy the requirements for asylum, we reviewed ―the BIA’s legal conclusions
assuming the credibility of‖ the testimony).
                                              4
observe that he already has relocated in similar circumstances, and it would therefore be

reasonable to conclude that he can conduct his business elsewhere in the country if need

be, especially given the sizeable sphere of BJP influence.

       As we conclude that substantial record evidence supports the agency denial of

Patel’s request for asylum, it follows that his application for withholding of removal,

relief which involves a ―more stringent applicable standard,‖ was also properly denied.

See Murdic v. Att’y Gen., 

, 102 n.8 (3d Cir. 2006).

       Thus, for the foregoing reasons, we will deny the petition for review.




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