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Khilan v. Holder: IMMIGRATION - no error denying asylum regarding kidnapping in Kashmir; corruption, etc. not same as tacit support by government

1Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Eric H. Holder, Jr., is automatically substituted for former Attorney General Michael
B. Mukasey as Respondent in this case.
United States Court of Appeals
No. 08-1002
Amit Kumar Khilan, *
Petitioner, *
* Petition for Review of an Order of
v. * the Board of Immigration Appeals.
Eric H. Holder, Jr.,1 * [PUBLISHED]
Attorney General, *
Respondent. *
Submitted: October 13, 2008
Filed: March 5, 2009
Before MELLOY, BEAM, and GRUENDER, Circuit Judges.
Amit Khilan petitions for review of a decision by the Board of Immigration
Appeals (BIA) denying his application for asylum and withholding of removal. We
deny his petition for review.
Khilan is a citizen of India who entered the United States without inspection on
January 5, 2004. The government initiated removal proceedings against him on
January 9, 2004. On September 1, 2004, Khilan conceded removability and filed an
application for asylum and related relief. In his application, Khilan claimed that he
had been kidnapped and held for ransom by Islamic extremists in the Kashmir
region. At an October 27, 2006, hearing before an immigration judge (IJ), Khilan
testified about his family in India and the facts surrounding his kidnapping.
Khilans grandfather and, to a lesser extent, Khilans father were active in
politics, and both held leadership positions in Shiv Sena, a Hindu political party.
(Khilans uncle testified that Khilans grandfather had also once run for a mayoral
position with the BJP, a large Hindu-nationalist political party). Khilan testified that
his grandfather was well known throughout the state of Haryana due to his political
activities. Khilans family is relatively wealthy, and Khilan attended a private school
in Lucknow.
On the morning of July 3, 2003, a group of men attacked Khilan on his way to
school. The assailants hit Khilan in the head and knocked him unconscious. They
bound him and drove him seven or eight hours away to a village near Kolkata
(Calcutta), where they kept him in a dark room within a mosque. At one point, Khilan
managed to escape but while attempting to hitchhike away was caught again. In
retaliation for his escaping, the kidnappers beat him unconscious. According to
Khilan, the kidnappers told him that they kidnapped him because his familys
notoriety would bring them fame and because his familys wealth assured the
kidnappers a large ransom. The kidnappers demanded a fifty-lakh-rupee ransom,
which was later negotiated down to thirty-five lakh rupees. They released Khilan after
fifteen or sixteen days of captivity, following payment of the ransom. He eventually
made his way back to his family and received medical treatment.
The kidnappers threatened to kill Khilan if Khilan or his family sought help
from the police. Out of fear, Khilan did not report his kidnapping. The police
nevertheless became aware of the kidnapping from one of Khilans familys servants.
The police came to Khilans house to ask questions, but Khilan and his family refused
to cooperate. The police persisted with their investigation and made a number of
arrests. The police asked Khilan to identify the suspects, but he again refused to aid
the investigation.
In addition to Khilans testimony regarding the kidnapping, Khilan submitted
several documents detailing political and religious violence in India. These
documents related numerous incidents of mob violence, abuses of police power, and
endemic corruption.
The IJ accepted as credible Khilans testimony regarding his kidnapping
generally but found that Khilan failed to establish that the government was unwilling
or unable to control Khilans kidnappers. Accordingly, the IJ determined that Khilan
had not suffered governmental persecution and did not establish a fear of future
persecution. The IJ denied Khilans application. The BIA adopted and affirmed the
IJs decision. Khilan appealed the BIAs determination as to his asylum and
withholding of removal claims. We review the BIAs decision, but where, as here, the
BIA has adopted the IJs factual findings, we review those findings as part of the final
decision. Ismail v. Ashcroft, 396 F.3d 970, 974 (8th Cir. 2005).
The Attorney General may grant asylum to an alien who demonstrates that he
is a refugee as defined by 8 U.S.C. 1101(a)(42)(A). 8 U.S.C. 1158(b)(1).
Refugee is defined thereby as a person who is unable or unwilling to return to, and
is unable or unwilling to avail himself or herself of the protection of his or her home
country because of persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social group, or political
opinion. Id. 1101(a)(42)(A). We have approved the BIAs definition of
persecution, which requires that the harm be inflicted either by the government of
a country or by persons or an organization that the government was unable or
unwilling to control. Menjivar v. Gonzales, 416 F.3d 918, 921 (8th Cir. 2005)
(internal quotations and alterations omitted). Khilan makes no allegation that the
government itself inflicted the harm. He argues instead that the harm was inflicted by
private individuals that the government was unwilling to control. [A]n applicant
seeking to establish persecution by a government based on violent conduct of a private
actor must show more than difficulty controlling private behavior. Rather, the
applicant must show that the government condoned it or at least demonstrated a
complete helplessness to protect the victims. Id. (internal alterations, quotations, and
citation omitted); see also Valioukevitch v. INS, 251 F.3d 747, 749 (8th Cir. 2001)
(rejecting an asylum claim where incidents had not occurred with the imprimatur
of government officials).
Whether the Indian government is unable or unwilling to control the
kidnappers is a factual question. See Menjivar, 416 F.3d at 921. We review the
administrative findings of fact to determine whether they are supported by substantial
evidence on the record as a whole, meaning that the findings are conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary. Id. at
92021 (quoting 8 U.S.C. 1252(b)(4)(B)).
Here, after a review of the evidence presented, the IJ stated that the court had
every reason to believe that the Indian government, which opposes Kashmir Muslim
separatists, would provide protection to people who are being threatened by them.
The record includes significant evidence of separatist and religious violence, as well
as widespread corruption and abuse of police power. There is no indication, however,
that the Indian government condones persecution of individuals that oppose or are
targeted by Kashmiri separatists. To the contrary, the record shows that Indian
security forces are actively combating Kashmiri insurgents. As the IJ noted, This is
clearly not a situation where the government of India is providing some sort of tacit
support to the Kashmiri separatists. We also note that much of the evidence Khilan
presented is inapposite to Khilans situation. Khilan is a Hindu with family
connections to Hindu political parties. The examples of religious persecution he cited
involved attacks generally directed at Christians or Muslims, not at members of the
Hindu majority. Bad governmental acts by a Hindu-majority government or Hindu
political parties against non-Hindu minority religious groups add little, if any, support
for a claim of governmental acquiescence to violence directed at Hindus.
Furthermore, evidence of general problems of ineffectiveness and corruption
do not, alone, require a finding that the government is unable or unwilling where the
evidence specific to the petitioner indicates the contrary to be true. See id. at 922
(We deem the news articles regarding gang activity too general to dictate a
conclusion that [a gang members] specific acts directed toward [the petitioner] were
persecution by the government.). Here, not only were the police willing to investigate
the kidnapping, but they had even arrested a number of suspects. The police
attempted to forward their investigation into the kidnapping, and, on the facts before
us, the government cannot be faulted for Khilans own refusal to cooperate with the
The IJ found that this is not a situation where there is any sort of governmental
approval or acquiescence in any harm directed against the respondent. Substantial
evidence supports this finding, and the record as a whole does not compel a
conclusion to the contrary. Substantial evidence also supports the denial of
withholding of removal. To be eligible for withholding of removal, applicants must
show a clear probability that they will face persecution in the country of removal.
Valioukevitch, 251 F.3d at 749. This clear probability standard is more difficult
to meet than the well-founded fear standard for asylum. Id. Because Khilan failed
to meet the standard for asylum, it follows that he also failed to meet the standard for
withholding of removal. See Ismail, 396 F.3d at 975; Behzadpour v. United States,
946 F.2d 1351, 1354 (8th Cir. 1991).
* * *
Substantial evidence on the record as a whole supports the IJs conclusion that
Khilan did not show that the government was unable or unwilling to control his
abductors. We therefore deny the petition for review.


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