Varghese, George M. v. Gonzales, Alberto R. , 219 F. App'x 546 ( 2007 )

NONPRECEDENTIAL DISPOSITION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
Argued February 27, 2007
Decided March 13, 2007
Before
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-2119
GEORGE M. VARGHESE,
Petitioner, Petition for Review of an Order of
the Board of Immigration Appeals
v.
No. A78 588 463
ALBERTO R. GONZALES,
Respondent.
ORDER
George Varghese, a national of India, applied for asylum, withholding of
removal, and relief under the Convention against Torture (CAT) based on his
Catholic faith. The Immigration Judge (IJ) denied his applications after concluding
that Varghese failed to show that the Indian government condoned or was unwilling
to control the private discrimination he faced in the past, and that he could avoid
future persecution by moving back to Kerla, India, a province where he once resided
safely. The Board of Immigration Appeals (BIA) affirmed. Because substantial
evidence supports this decision, we deny Varghese’s petition for review.
No. 06-2119 Page 2
Varghese entered the United States as a visitor in October 1999, but exactly
one year later he filed a pro se application for asylum recounting hardships he faced
as a Catholic in India, a predominately Hindu country. His problems allegedly
began in 1980 when he was visiting his grandfather and “people in and around the
area” dismantled one of his grandfather’s buildings as a warning against the
family’s religious activities. When Varghese tried to intervene, the people pushed
and threatened him. Varghese did not provide any description of the attackers in
his asylum application, or say whether his family contacted the police, or even
disclose where his grandfather lived. After a long period of calm, his problems
resumed in April 1999. At that time he was traveling by train from his home in
Kerla to Calcutta when “Hindu fanatics” attacked him and stole all his “personal
records.” Again he did not say in his asylum application whether he contacted the
police, but he did explain that after this incident he stayed in a guest house where
police interrogated him. Varghese attached various supporting documents to his
asylum application, including an affidavit from church officials in India describing
him as a “religious activist” who was an elected member of the diocese’s pastoral
council from 1978 to 1982.
In August 2002 an asylum officer interviewed Varghese and referred his case
to an IJ. Before his merits hearing Varghese retained counsel and filed additional
documents supporting his asylum application. These documents included an
affidavit from Varghese recounting the problems he faced in India. In that
affidavit, he explained that a group of Hindu men destroyed his grandfather’s
building, which was used as a community meeting place for prayer. Apparently this
incident spurred Varghese to “convince others of the righteous path to salvation.”
He also explained that the beating he received on the train to Calcutta resulted in a
broken tooth and a bloody lip, and that he reported the incident to the police who
refused to take his complaint. Regarding his stay at the guest house, Varghese
added to his earlier account that Hindu militants slapped him repeatedly for
distributing flyers urging Hindu readers to learn more about Jesus, and that the
police became involved only after the manager of the guest house called them to
respond to the violence. Varghese did not repeat his previous allegation that the
police interrogated him; this time he said that they threatened to beat him if he
continued proselytizing. Just a month after these attacks, Varghese recounted, he
received threatening phone calls at his home from people he believed to be members
of the RSS, a militant Hindu group. Varghese, though, did not explain why he
thought these callers were members of the RSS. He ended the affidavit by stating
that his wife, who remains in India with their two children and works as a
Catechism teacher, has received threatening phone calls and since his departure
has been visited twice by men demanding to know his whereabouts. Varghese also
submitted an affidavit from his wife attesting that she received these threats.
Lastly, he submitted several articles describing attacks on Christians in India,
including a Department of State report from 2003 disclosing that, although the
No. 06-2119 Page 3
central government generally protected religious freedom, “it sometimes did not act
effectively to counter societal attacks against religious minorities and attempts by
state and local governments to limit religious freedom.”
Varghese’s testimony generally corroborated his submissions, but he gave
conflicting testimony regarding his interactions with the police, testifying first that
he did not report the attack on the train to police and later stating that he did.
With regard to the guest-house incident, Varghese confirmed that the manager of
the hotel had called the police, but emphasized that the police did “nothing.” He did
not testify that the police interrogated him or threatened him. Varghese also
described his attackers and those who threatened him as “Hindu militants,” or
“Hindu people,” but he did not say that any of them had ties to the Indian
government. On cross-examination, Varghese explained that Calcutta is a 36-hour
train ride from his home in Kerla.
For its part the government submitted the Department of State’s
International Religious Freedom Report for 2004 on India. This report
acknowledges that some state and local governments did not adequately protect
religious minorities. But the report also notes important improvements, including
an April 2003 decision by the Indian supreme court ordering a retrial of several
acquitted Hindu extremists who allegedly killed 14 Muslims when a mob attacked a
local bakery. And although some states have laws penalizing proselytizing, no such
law existed on a national level or in Kerla. The report also notes that in May 2004
a new coalition government replaced the BJP, the Hindu nationalist party that had
been in power since 1998. According to the Department of State, the BJP had links
with Hindu extremist groups implicated in violent acts against Christians, and
some BJP officials also had been members of the RSS, although the BJP was an
independent political party which officially acknowledged the rights of religious
minorities. On the other hand, according to the 2004 report, the new coalition
government has pledged “to pay particular attention to the rights of religious
minorities,” and is led by three religious minorities, a Sikh prime minister, a
Muslim president, and a Christian president of the governing party.
After reviewing the submissions and listening to the testimony, the IJ found
Varghese’s testimony credible and resolved his conflicting testimony about police
involvement by concluding that Varghese reported the incident on the train but
never saw results from the report. Ultimately, the IJ denied Varghese’s asylum
application, concluding first that he did not prove past persecution. The IJ noted
that Varghese had no “real proof” that the individuals who attacked him were
affiliated with the government and that his “one attempt” to seek police help did not
mean that the government condoned or was helpless to stop the violence. While
acknowledging that Varghese might genuinely fear returning to India, the IJ
nonetheless determined that this fear was not objectively reasonable. The IJ
No. 06-2119 Page 4
likewise held that Varghese failed to meet his burden for proving eligibility for
withholding of removal and relief under the CAT.
The BIA adopted and affirmed the IJ’s decision. Assuming Varghese’s
credibility, it concluded that he failed to establish persecution because many locales
in India have Christian majorities, he experienced no attacks anywhere close to his
home, and he submitted no evidence that the individuals who caused him a “few
difficulties” are part of a nationwide threat.
Varghese now contends that the record compels us to conclude that he
experienced past persecution. Specifically, he argues that the beatings he faced at
the hands of Hindu extremists on the train to Calcutta and at the guest house,
along with the threats his wife has received at their home in Kerla, were severe
enough to rise to the level of persecution. Since the BIA’s order merely supplements
the IJ’s decision, that decision, as supplemented, is the basis for our review. See
Prela v. Ashcroft, 394 F.3d 515, 518 (7th Cir. 2005). We review the IJ's decision
under the deferential substantial-evidence standard, and can reverse only if the
evidence compels a different result. See id. The Attorney General and the
Secretary of Homeland Security have discretion to grant asylum to an alien who
proves he is unwilling to return to his home country because he has faced
persecution in the past or has a well-founded fear of future persecution on account
of his religion. See 8 U.S.C. §§ 1158(b)(1)(B)(i); 1101(a)(42)(A); Gomes v. Gonzales,
473 F.3d 746, 753 (7th Cir. 2007).
The IJ concluded that the attacks never amounted to persecution, not
because the harm was mild, but because the perpetrators were non-governmental
actors and the Indian government neither condoned their behavior nor was
unwilling to protect Varghese. Ample evidence supports this conclusion. We have
reasoned that “[p]ersecution is something a government does, either directly or by
abetting (and thus becoming responsible for) private discrimination.” Hor v.
Gonzales, 400 F.3d 482, 485 (7th Cir. 2005) (emphasis in original). A government
abets private discrimination only if it “is unwilling and completely unable to afford
protection.” Margos v. Gonzales, 443 F.3d 593, 599 (7th Cir. 2006).
In the immigration courts, Varghese never tried to establish that the various
people who destroyed his grandfather’s building, attacked him on the train to
Calcutta, and attacked him at the guest house were affiliated with the government;
he described them only as Hindu militants. The same is true about the callers who
made the telephone threats. Varghese described them as members of the RSS, but
he made no effort to link them with the government. This evidence does not compel
a finding that Varghese’s attackers were actors working for, or with the tacit
approval of, the government, rather than thugs who found his religion offensive.
Nor does Varghese’s one failed attempt to report the train incident to the police
No. 06-2119 Page 5
compel a finding that the Indian government is unwilling and completely unable to
protect him. Even under BJP rule, the Indian government expressed a commitment
to protecting the rights of religious minorities. Although the police apparently
threatened Varghese following the incident at the guest house, this unfulfilled
threat of vague harm does not compel a finding of past persecution. See Bejko v.
Gonzales, 468 F.3d 482, 486 (7th Cir. 2006) (“In the majority of cases, however,
threats in and of themselves will not compel a finding of past persecution.”);
Hernandez-Baena v. Gonzales, 417 F.3d 720, 723 (7th Cir. 2005); Prela, 394 F.3d at
518 (concluding that repeated interrogation by police, 24-hour detention, and injury
to hands does not compel finding of past persecution).
Varghese also contests the IJ’s conclusion that he failed to establish a well-
founded fear of future persecution since he could safely return to Kerla. He
maintains that the IJ failed to consider that his proselytizing activities place him at
a heightened risk of persecution and that the threat to Christian proselytizers
exists throughout all of India. Varghese could prove his eligibility for asylum by
demonstrating that he has a well-founded fear of future persecution in India. See 8
U.S.C. §§ 1158(b)(1)(B)(i); 1101(a)(42)(A). To establish a well-founded fear of
persecution, an alien must demonstrate that he genuinely fears persecution on
account of his religion and that this fear is objectively reasonable. See Prela, 394
F.3d at 519. The IJ did not doubt the sincerity of Varghese’s fear, but found it
objectively unreasonable. To demonstrate that his fear is objectively reasonable,
Varghese had to show “‘specific, detailed facts supporting the reasonableness of
[his] fear that [he] will be singled out for persecution.’” Bhatt v. Reno, 172 F.3d 978,
982 (7th Cir. 1999) (quoting Bevc v. INS, 47 F.3d 907, 910 (7th Cir. 1995)) (holding
that Indian applicant’s testimony of beatings and threats by Hindu radicals is “too
vague, speculative, and insubstantial to establish either past or future
persecution”). What’s more, an applicant “does not have a well-founded fear of
persecution if the applicant could avoid persecution by relocating to another part of
the applicant’s country.” 8 C.F.R. § 208.13(b)(2)(C)(ii); see also Ahmed v. Gonzales,
467 F.3d 669, 675-76 (7th Cir. 2006).
Substantial evidence supports the IJ’s conclusion that Varghese failed to
prove that his fear of persecution throughout all of India is objectively reasonable.
The IJ acknowledged that Christians face attacks in India but concluded, citing the
Department of State reports, that the record demonstrates that the risk is reduced
in certain provinces. Varghese’s own experience suggests that he would be safe
among the concentration of Christians found in his home state of Kerla, which has
no anti-conversion laws. Hindu extremists never attacked Varghese while he was
in Kerla, and though he and his family received threats there, unfulfilled threats
from non-governmental actors do not rise to the level of persecution. See Mitev v.
INS , 67 F.3d 1325, 1328, 1332 (7th Cir. 1995) (concluding that threats of death
camps and jail from private individuals does not amount to persecution). Moreover,
No. 06-2119 Page 6
the new central government has pledged to protect the rights of religious minorities
and has made significant strides to this end. Diplomatic observers estimated that
(in a country of approximately 1 billion people and 23 million Christians) 30 attacks
against the Christian community occurred from 2003 to 2004, less than half the
number estimated for the previous year. And the most recent Department of State
report about religious freedom in India notes continued progress and states that
“the vast majority of Indians of every religious faith lived in peaceful coexistence.”
DEPARTMENT OF STATE, INDIA: INTERNATIONAL RELIGIOUS FREEDOM REPORT (2006),
available at http://www.state.gov/g/drl/rls/irf/2006/71440.htm (last visited March 5,
2007). The Indian supreme court also has signaled that it will not tolerate lax
enforcement by local governments by ordering new trials following the acquittals of
Hindu extremists for the deaths of 14 Muslims killed during rioting. Varghese bore
the burden of proving that his fear of persecution was well-founded, and to meet
that burden he was required to demonstrate an objectively reasonable fear
throughout all of India. Prela, 394 F.3d at 518, Ahmed, 467 F.3d at 675-676. And
because Varghese has the burden of proof, unlike the situation in a fairly similar
case decided today (Das v. Gonzales, No. 06-2692) where that burden1 was on the
government, his task is very difficult indeed. We have reviewed the record, and
after that review, we conclude that it contains nothing which compels us to disturb
the IJ’s conclusion that Varghese failed to meet this burden.
Likewise, the IJ’s decision to deny Varghese’s application for withholding of
removal is also supported by substantial evidence. To be eligible for withholding of
removal the applicant “bears the burden of demonstrating that loss of life or
freedom is more likely than not” if he returns to his home country. Kobugabe v.
Gonzales, 440 F.3d 900, 901 (7th Cir. 2006). We have held that because this
standard is stricter than the standard for asylum, a “petitioner who fails to
demonstrate eligibility for asylum cannot demonstrate eligibility for withholding of
removal.” Prela, 394 F.3d at 519; see also Hasanaj v. Ashcroft, 385 F.3d 780, 783
(7th Cir. 2004). Because Varghese has not shown that the record compels us to
conclude that he is eligible for asylum, any attack on the denial of his withholding
of removal application would be to no avail.
Accordingly, we deny the petition for review.
1
If the evidence compelled us to conclude that Varghese experienced past
persecution, then the government would bear the burden of demonstrating that
Varghese could safely relocate within India. See 8 C.F.R. § 208.13(b)(1)(i)(B).