NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 22, 2012*
Decided February 22, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11‐2090
SATISH B. PATEL, Petition for Review of an Order of the Board
Petitioner, of Immigration Appeals.
v. No. A099‐032‐194
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
O R D E R
Satish Patel, a native and citizen of India, petitions for review of an order of the
Board of Immigration Appeals upholding an immigration judge’s denial of his requests for
withholding of removal and relief under the United Nations Convention Against Torture
(CAT). Because the Board’s decision is supported by substantial evidence, we deny the
petition.
*
The parties have waived oral argument in this case, and thus the appeal is submitted
on the briefs and record. See Fed. R. App. P. 34(a)(2)(C).
No. 11‐2090 Page 2
Patel entered the United States with his aunt and uncle in 1999 at age 17. It is unclear
whether he had permission to enter the country initially, but he was here unlawfully when
immigration officials discovered him in Chicago in 2007 and began removal proceedings
against him. Patel then applied for asylum, withholding of removal, and CAT relief,
explaining in his application that his family in India has disowned him, and one of his
uncles has threatened to report him to the police because he is homosexual.
In an effort to substantiate more widespread problems for homosexuals, Patel
submitted the country reports for 2007 and 2008 from the U.S. Department of State and one
from the United Kingdom Border Agency. Those reports explain that homosexuals in India
are victims of discrimination in work and education and suffer attacks, rapes, and
blackmail. The reports add that Indian police sometimes commit violence against
homosexuals, including sexual assault and electroshock therapy. Furthermore, to prevent
some victims from reporting those incidents, the police have threatened to arrest them
under Section 377 of the Indian Penal Code, a colonial‐era law that codifies lengthy
incarceration for the “unnatural offences” of sodomy. The reports do not specify the
frequency or location of the private or police abuse of homosexuals. They do, however,
observe that actual arrests under Section 377 are rare and that the Indian government’s
stated policy is to tolerate homosexuality practiced in private.
At a hearing on his application, Patel testified about his fear of persecution based on
his homosexuality if returned to India. His testimony focused entirely on his personal
experiences. As a youth, he endured beatings and ridicule from schoolmates in India who
discovered his sexual orientation, and his family mistreated him after finding out: His
parents briefly kicked him out of the house, and his uncle slapped him. He admitted,
though, that Indian government officials never harmed him because of his sexual
orientation, but he nonetheless feared arrest if he returned because, he believes, the Indian
government does not tolerate homosexuals.
The IJ denied Patel’s requests for relief. First, the IJ denied asylum because Patel
missed the one‐year filing deadline, see
8 U.S.C. § 1158(a)(2)(B), and his circumstances did
not fall under any exception to that rule. (Patel does not challenge this ruling on appeal, so
we discuss it no further.) Second, the IJ denied withholding of removal, finding no clear
probability that Patel will be persecuted in India. Patel did not endure past persecution, the
IJ decided, because the abuse from his family and schoolmates fell short of that standard
and he has never been harassed by the police. The IJ acknowledged that Indian society is
intolerant toward homosexuals but concluded that Patel’s fear of arrest is unfounded
because Indian prosecutors use Section 377, the law banning “unnatural offences,”
primarily to punish child abuse or rape and that “Indian higher courts have heard only 30
No. 11‐2090 Page 3
cases relating to Section 377 between 1860 and 1992.” The IJ also denied CAT relief,
concluding that Patel failed to show that he is likely to be tortured in India.
Patel appealed to the Board, which upheld the IJ’s decision. The Board agreed that
Patel failed to show that he would be singled out for persecution in India because of his
homosexuality. The Board also rejected Patel’s argument that India has a “pattern or
practice” of persecuting homosexuals. The Board recognized that “homophobia is a
problem in India” and police sometimes use Section 377 “to harass and blackmail
homosexuals.” But homosexuals are rarely arrested under Section 377, the Board
emphasized, and the record lacks evidence of widespread police abuse. The Board also
upheld the denial of asylum and CAT protection.
In his petition for review, Patel argues solely that he is entitled to withholding of
removal and CAT relief because India has a “pattern and practice” of persecuting
homosexuals, see
8 C.F.R. § 1208.16(b)(2)(I), as reflected in reports of societal discrimination
and police harassment, and the existence of Section 377. He abandons his arguments that he
suffered past persecution (based on family shunning and schoolyard abuse) and that the
government will single him out individually for future persecution.
To be entitled to withholding of removal, Patel must show that it is more likely than
not that he would be persecuted in India. See INS v. Stevic,
467 U.S. 407, 423–24 (1984);
Stanojkova v. Holder,
645 F.3d 943, 946 (7th Cir. 2011); Toure v. Holder,
624 F.3d 422, 428 (7th
Cir. 2010). To meet that standard using evidence of a pattern or practice of persecution,
Patel must show that state actors in India perpetrated or tolerated “‘a systematic, pervasive,
or organized effort to kill, imprison, or severely injure members of the protected group.’”
See Krishnapillai v. Holder,
563 F.3d 606, 620 (7th Cir. 2009) (quoting Mitreva v. Gonzales,
417
F.3d 761, 765 (7th Cir. 2005)). We will uphold the Board’s decision if it is supported by
substantial evidence and will reverse only if the evidence compels a different result. See
Toure,
624 F.3d at 427.
The record here does not compel overturning the Board’s order because the record
lacks evidence of widespread police abuse or government‐sanctioned intolerance of
homosexuals. Patel’s strongest evidence of police abuse comes from the country reports
stating that police sometimes harm gay men and threaten their arrest under Section 377 to
silence them. But the record reveals scant information about the prevalence of these acts; we
know neither how often nor where in India they occur. To the contrary, we know from these
reports that the Indian government has proclaimed tolerance of private homosexual
conduct and that police arrests under Section 377 are rare. Moreover, according to an article
quoted in one of the reports, “many Indian homosexuals worry more about exposure to
their families and colleagues than about the law.” The record thus fails to compel a
No. 11‐2090 Page 4
conclusion that government action against homosexuals is “systematic, pervasive, or
organized.” See Pathmakanthan v. Holder,
612 F.3d 618, 624–25 (7th Cir. 2010); Krishnapillai,
563 F.3d at 620. This evidentiary failure, combined with the evidence of official tolerance,
dooms Patel’s case because otherwise, “in theory, every other person belonging to [Patel’s
group] would be entitled to asylum in the United States.” Raghunathan v. Holder,
604 F.3d
371, 377 (7th Cir. 2010). As for Patel’s argument that he will be persecuted because Indian
society does not tolerate homosexuals, he has likewise failed to adduce compelling
evidence. The record does not show the frequency or breadth of private attacks, or whether
the Indian government has been made aware of but refused to address them. Private acts
without state acquiescence, let alone knowledge, is not persecution. See Sarhan v. Holder,
658
F.3d 649, 657 (7th Cir. 2011); Borovsky v. Holder,
612 F.3d 917, 922 (7th Cir. 2010).1
For these same reasons, Patel also failed to show that he is entitled to CAT relief,
which requires that it be more likely than not that he face torture—not just persecution—if
removed to India. See
8 C.F.R. § 1208.16(c)(2); Toure,
624 F.3d at 429.
The petition for review is DENIED.
1
A recent legal development in the public record further supports the Board’s
decision: In July 2009 the High Court of Delhi ruled that Section 377 is unconstitutional as
applied to consensual sex between adult homosexuals, though review of that decision is still
pending in the Supreme Court of India. See Naz Found. v. Govʹt of NCT of Delhi,
No. 7455/2001 (Delhi High Ct. 2009), available at
http://lobis.nic.in/dhc/APS/judgement/02‐07‐2009/APS02072009CW74552001.pdf; SC defers
hearing on decriminalisation of gay sex, STATESMAN, Nov. 8, 2011, 2011 WLNR 23089361.
