Lead Opinion
Opinion by Judge WALLACE; Partial Concurrence and Partial Dissent by Judge THOMAS.
OPINION
Ratnesh Sharma petitions for review of the dismissal of his appeal by the Board of Immigration Appeals (Board). The Board reviewed favorably the decision of the immigration judge (IJ), which denied Sharma’s application for asylum, withholding of deportation, and protection under the Convention Against Torture (CAT). The Board then denied Sharma’s subsequent motion to reopen his removal proceedings. We have jurisdiction to review orders of removal and denials of motions for reopening pursuant to 8 U.S.C. § 1252. We deny review of the petition.
I.
Sharma, a native of India, entered the United States in 2001 and overstayed his visa. He filed an asylum application and was placed in removal proceedings. His asylum application was heard by an IJ. The facts are essentially taken from his testimony before the IJ.
According to Sharma, the police stationed where he lived in India persecuted him because they thought he was a political operative working against the government’s interests. Sharma is a Hindu. His trouble began when his father, a professor at a university in India, started research for a book about a Sikh separatist movement. Because Sharma’s father planned to detail police misconduct in the book, the police viewed his effort as anti-government. Sharma began assisting his father with the book in 1999. Sharma’s help was mostly clerical: he entered interview data in a computer, and performed some photocopying.
In September 1999, shortly after beginning to help his father, Sharma was at his father’s home when the police entered. They stated that they were looking for Sharma’s father and asked Sharma where he was. When Sharma told them he did not know, they took Sharma with them to look for his father. After their search proved unsuccessful, they returned to the police station with Sharma. While there, the police interrogated Sharma about his father. They wanted to know about his father’s research and the location of his father’s research data. They threatened Sharma, telling him that they would hurt him if he did not cooperate in providing them with the information and the data. After several hours, they released him. At no point during this discussion did police ever question Sharma about his personal views.
Two days later, the police again took Sharma. They interrogated him about the research that his father planned to use in the book. When Sharma indicated he neither had it nor had access to that research,
Sharma then started photocopying the research data before ostensibly complying with the police by giving them the original research, 20-25 pages at a time. He did this for about four months, but after the police learned about the photocopying, they once more took Sharma to the station, interrogated him about the photocopies, and beat him when they were unsatisfied with his explanation. They then held Sharma for three days until his father came to the police station, gave the police all copies of his research, and promised to stop his research on the Sikh movement.
Sharma testified that after this last episode, the police came to the family home and told his father that if he did not give them a complete copy of the research, they would kill Sharma. Sharma’s father then abandoned his plans to publish the Sikh book. At this point, Sharma left the family home and lived elsewhere in India for about sixteen months. He then procured a passport and visa prepared by an “agent” and departed to the United States. Upon departure, the police allegedly told Sharma’s father that if Sharma returned to India, they would torture and kill him.
The IJ denied Sharma’s asylum application based on a finding that his testimony lacked credibility. The Board disagreed with the IJ’s credibility reasoning but nevertheless affirmed the decision, holding that there was no evidence that Sharma was persecuted on account of his political beliefs:
The respondent believes that the police harassed him in order to stop his father from publishing his book. He believes the police could not directly oppose his father. We do not find that the police attributed a political opinion to the respondent. Rather, the respondent was a tool used by the police to force their [sic] father to divulge information and to cease his activities.
Approximately one and a half months after the Board issued its decision, Sharma married a United States citizen. One and a half months after his marriage, Sharma filed a timely motion to re-open on the ground that he was married to a United States citizen. He argued that he was now eligible for adjustment of his status pursuant to a lawful, bona fide marriage.
The Board disagreed. It ruled that Sharma failed to rebut the presumption, applicable to all marriages entered into after the initiation of removal proceedings, that he entered the marriage for the purpose of “procuring [his] admission as an immigrant.” See 8 U.S.C. § 1255(e)(8); 8 C.F.R. § 204.2(a)(1)(iii)(A)-(B).
Sharma subsequently filed two more motions to reconsider, which were both denied. Sharma now petitions for review of all of the Board’s adverse rulings.
II.
Sharma first takes issue with the Board’s determination that he was not persecuted on account of an imputed political opinion, and that Sharma was instead persecuted based on the government’s desire to disrupt his father’s scholarly work.
Eligibility for asylum requires showing a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). Mandatory withholding of removal requires a clear probability of the same. 8 C.F.R. § 1208.16(b)(2); Al-Harbi v. I.N.S.,
*870 After [the Supreme Court’s decision in] Elias-Zacarias, an asylum seeker claiming to be a victim of persecution on account of his or her political opinion must establish, by evidence, four facts: (a) that he or she has been a victim of persecution; (b) that he or she holds a political opinion; (c) that this political opinion is known to or imputed by the persecutors; and (d) the ensuing persecution of the victim has been or will be on account of this opinion.
The dispositive consideration in this case is whether Sharma established the fourth Sangha fact: whether the “persecution of the victim has been or will be on account of [a political] opinion.” Id. at 1487. Either the police harmed Sharma because of an imputed political opinion, or they did so, as the government argues and the Board found, solely as a means to convince his father to stop working on the Sikh book. Given the Board’s credibility finding, “the issue is not whether the events in question took place, but rather whether they establish persecution” on the basis of an enumerated ground. Navas v. I.N.S.,
We conclude that this case is governed by our earlier decision in Sangha. In Sangha we held that the petitioner failed to meet his burden of proving that an imputed political opinion was the basis for the alleged persecution. There, the alien’s father was the member and leader of a political party.
four armed men forced their way into the Sangha home. They beat up Sangha’s father until Sangha and his brother came to protect him. The men identified themselves as members of the BTF. They demanded that Sangha’s father cease his political activities, pay them 100,000 rupees, and give over Sangha and his brother. They said they wanted the two brothers to fight for Khalistan and they wanted to make the brothers unavailable to support the father. They gave Sangha’s father three weeks to comply.
Id. Ruling on the above evidence, the Board found that Sangha was not persecuted on account of his political views. Id. On appeal, we held that substantial evidence did not compel us to find otherwise. The BTF “gave two reasons why it wanted to recruit Sangha,” we explained:
First, it wanted Sangha to help fight for Khalistan. This reason suggests that it was acting in furtherance of its own goals, rather than to persecute Sangha for any views he might hold. Second, the BTF wanted to make Sangha unavailable to support his father. This reason suggests that it wanted to punish Sangha’s father, rather than to persecute Sangha for his political beliefs.
Id. at 1490-91. Because neither reason showed that the BTF was acting on account of Sangha’s political opinion, we denied his petition. Id. at 1491.
In the case before us, the motivation of the police was clear: stop Sharma’s father from publishing his book. The police never inquired into Sharma’s own political views. When they picked him up, their sole inquiry pertained to the status of his father’s book. The police, according to Sharma’s hearsay recounting of what his
The thoughtful dissent suggests that Silaya v. Mukasey, not Sangha, is the controlling precedent.
In granting Rosalina’s petition, we held that, although there was scant direct evidence of the NPA members’ motives, there was substantial circumstantial evidence that they imputed a political opinion to her. Id. at 1072. It was enough, we reasoned, that “the NPA members knew who [Rosalina] was, knew who her father was, and made comments indicating that Rosalina was chosen as a victim because of her father’s ties to the Philippine government.” Id. That holding parallels our statement of the law in Navas, another case involving the persecution of a family member of someone with well-known political views: “Where police beat and threaten the spouse of a known dissident, it is logical, in the absence of evidence pointing to another motive, to conclude that they did so because of the spouse’s presumed guilt by association.”
The differences between the facts of Silaya and the ones here are important. In Silaya, we had very limited information regarding the NPA’s motives. From the circumstances of the abduction and the NPA’s knowledge regarding Rosalina’s father, we drew the logical inferences regarding the NPA’s motives. Here, however, we have extensive evidence of the police’s motives. Every time the police took Sharma to the police station they indicated that they wanted “to force [Sharma’s] father to divulge information and to cease his activities.”
Because he was not persecuted on account of his political views, Sharma has no fear of future persecution on account of those views. We therefore deny his petition for asylum and withholding of removal.
III.
Sharma also challenges the Board’s denial of his request for relief under CAT. To obtain CAT protection, an applicant must show “that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). As set forth earlier, Sharma’s father abandoned plans to publish his book, turned over his research to the police, and remained employed and unharmed in India. Because the police were using Sharma as a tool to stop his father from publishing the book, and the publishing has been abandoned, substantial evidence supports the Board’s finding that it is not more likely than not that Sharma will be persecuted, let alone tortured by the Indian police upon his return. We therefore deny his petition for review based on the CAT claim.
IV.
Sharma next argues that the Board abused its discretion in denying his first motion to reopen based on insufficient evidence of a bona fide marriage. We apply an abuse of discretion standard to decisions by the Board regarding motions to reopen. I.N.S. v. Doherty,
When an alien enters into a marriage following the completion of removal proceedings, it is presumed that the purpose is to “proeur[e] the alien’s admission as an immigrant.” See 8 U.S.C. § 1255(e)(3); 8 C.F.R. § 204.2(a)(1)(iii)(A)-(B). To overcome this presumption, an applicant filing a motion with the Board to reopen removal proceedings must “ ‘presently clear and convincing evidence indicating a strong likelihood that the [petitioner’s] marriage is bona fide.’ ” Malhi v. I.N.S.,
“[A]n applicant must offer evidence that is probative of the motivation for marriage, not just the bare fact of getting married.” Malhi,
Within 90 days of the Board’s denial of his appeal, Sharma got married. His wife then filed an 1-130, and Sharma moved to reopen the case he had lost. Attached to his motion to reopen was a copy of a car title and insurance in both his and his wife’s names, utility bills in both names, bank account information in both of
Few published cases hold that the Board either did or did not abuse its discretion in denying a motion to reopen for purposes of asserting a recent marriage to a United States citizen. Only a few cases further address whether an alien has met his burden of presenting clear and convincing evidence of a bona fide marriage. In Malhi, the applicant simply presented a marriage certificate, his wife’s birth certificate, four photographs and a receipt for an I-130 filing.
The only documents pre-dating April 2004 were (1) a copy of her marriage certificate and license; (2) the visa application; (3) photographs; and (4) one joint phone bill for $3.26 from March 2004. These documents were insufficient to prove, by clear and convincing evidence, that her marriage was bona fide.
Sharma submitted more information than the applicants in Malhi and Ahmed, but he submitted less information regarding cohabitation than the applicant in Damon, and he does not have a child, as in Velarde-Pacheco. “[A]n applicant must offer evidence that is probative of the motivation for marriage, not just the bare fact of getting married.” Malhi,
I, Athena Diane Sharma, met my husband, Ratnesh Sharma, in the beginning of the year 2004.
When he moved here from San Francisco, I met him at the store where he is employed. We spent some time together, and on my birthday, August 28, he proposed marriage to me, which I accepted. We decided to get married at the beginning of the year, 2005 [and] we have been together ever since.
We were married on January 12, 2005 in the presence of a few close friends. Ratnesh moved in with me at that time, where we still reside.
V.
Sharma brought a second and a third motion to reopen. Generally a petitioner is entitled to file only one motion to reopen, which must be filed within ninety days of the date of entry of the Board’s final decision. 8 U.S.C. § 1229a(e)(7)(A); 8 C.F.R. § 1003.2(c)(2). Although the Board has discretion to reopen removal proceedings “on its own motion” “at any time” pursuant to 8 C.F.R. § 1003.2(a), we lack jurisdiction to review the Board’s decision not to invoke its sua sponte authority to reopen those proceedings. See Ekimian v. I.N.S.,
VI.
Sharma’s due process argument fares no better. Sharma argues that the Board violated his due process rights by denying his time and number-barred motions to reopen. “Deportation proceedings violate due process if the alien does not receive a full and fair hearing and suffers prejudice as a result.” Perez-Lastor v. I.N.S.,
PETITION DENIED.
Notes
. The dissent also proposes that statements within the record constitute direct evidence that Sharma was beaten “on account of his father’s beliefs which they imputed to him.” Dissent at 874-75. We respectfully disagree that these isolated statements are substantial evidence that compel us to reverse the Board's decision. We are required to look at the "record considered as a whole” in assessing whether a petitioner established eligibility for asylum. I.N.S. v. Elias-Zacarias,
Concurrence Opinion
concurring in part and dissenting in part:
I agree with the majority that Sharma’s petition should be denied as to his claim under the Convention Against Torture, his motions to reopen, and his due process claim. I accordingly join parts I, III, IV, V, and VI of the majority opinion. However, I would grant the petition as to the asylum claim. Therefore, I concur in part, and I respectfully dissent in part.
I
Our precedent holds that “evidence ‘[t]hat the alleged persecutor acted because of a petitioner’s family’s political associations is sufficient’ to satisfy the motive requirement.” Silaya v. Mukasey,
Quoting Bhasin v. Gonzales,
If the police persecuted Sharma in part, or even primarily, to “stop Sharma’s father from publishing his book,” that ought have no effect on Sharma’s asylum claim. Sharma’s undisputed testimony, which the BIA found credible, establishes that Sharma’s persecution was politically motivated. “[W]here a persecutor has [mixed] motives for retaliating against a political opponent, the persecutor’s mixed motives do ‘not render the opposition any less political, or the opponent any less deserving of asylum.’ ” Zhu v. Mukasey,
Sangha does not compel a contrary conclusion. There, we held that “[i]f the persecutor attributed a political opinion to the victim, and acted upon the attribution, this imputed view becomes the applicant’s political opinion as required under the [INA].”
II
The government asserts that, even if we were to hold that Sharma had suffered
First, the BIA’s conclusion that “[t]here is no recent evidence to corroborate [Petitioner’s] claim that the authorities would still wish to harm” him is premised on a misreading of the record. In its initial decision, the BIA recounted that Sharma was threatened with death by the police only before his father delivered his research materials to them, and concluded therefore that the danger to Sharma had passed. However, the BIA misstated the record, which shows that Sharma’s persecution persisted after his father handed over his research and stopped working on his book. In late 1999, Sharma and his father began delivering Sharma’s father’s research to the police in order to mollify them. Despite this, on January 24, 2000, the police detained Sharma for three days and beat him “every day.” Sharma was released when his father “agreed that he would stop his research and hand ... over the papers” to the police, which he did. Nonetheless, shortly thereafter the police visited Sharma’s home, told his “father that the research papers [were] not complete,” and threatened that they would kill Sharma. Sharma also testified that, in the years since he left India, the police have continued to visit his family’s home and to threaten to kill him if he returns. Therefore, as the government acknowledges, the BIA erred when it found that Sharma was only threatened prior to his father promising to cease work on his book and hand over his research materials.
The government points to additional reasons why Sharma’s claim of a well-founded fear is undermined, but it does not rebut the presumption that operates in Sharma’s favor. The government emphasizes that Sharma’s father remains unharmed and cites Hakeem v. INS,
The government also notes that Sharma “received a valid passport and visa at a time Indian authorities ‘were allegedly interested him,’ ” and cites Espinoza-Martinez v. INS,
Ill
Substantial evidence supports the conclusion that Sharma was persecuted on account of a protected ground, and that the government has not met its burden of rebutting the presumption that Sharma has a well-founded fear of future persecution. I would grant the petition for review as to Sharma’s asylum claim.