Daya Bathula v. Eric Holder, Jr.

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 11-3622 & 12-2596

D AYA D INKAR B ATHULA, et al.,

Petitioners,

v.

E RIC H. H OLDER, JR., Attorney General

of the United States,

Respondent.

Petitions for Review of Orders

of the Board of Immigration Appeals.

A098-516-459, A098-696-572

A RGUED F EBRUARY 12, 2013—D ECIDED JULY 25, 2013

Before R IPPLE and T INDER, Circuit Judges, and Z AGEL,

District Judge.Œ

R IPPLE, Circuit Judge. Daya Dinkar Bathula and her

husband, Bathula Dinkar Christopher Reddy, citizens

of India, applied for asylum in separate affirmative ap-

plications before the Asylum Office. They claimed that

Œ

The Honorable James B. Zagel, of the Northern District of

Illinois, sitting by designation.

2 Nos. 11-3622 & 12-2596

their family had been subjected to persecution at the

hands of a local criminal group after Mr. Reddy testified

against certain of its members on trial for murder. The

asylum applications were denied by the Department of

Homeland Security (“DHS”). In removal proceedings,

they together renewed their request for asylum and

alternatively requested withholding of removal and

relief under the Convention Against Torture (“CAT”).

The immigration judge (“IJ”) denied relief and ordered

them removed to India, and the Board of Immigration

Appeals (“BIA” or “Board”) adopted and affirmed the IJ’s

decision. Thereafter, they sought reopening before the

Board on the basis of ineffective assistance of counsel,

and the Board again denied relief. They now petition for

review of both the initial final order of removal of the

Board and the order denying reopening. For the reasons

set forth in this opinion, we deny their petitions.

I

BACKGROUND

A. Facts

Mr. Reddy and Ms. Bathula are citizens of India and

former residents of the town of Madhapur in the state

of Andhra Pradesh. They have two adult children, a son

and a daughter. In India, Ms. Bathula was a trained

preschool teacher and worked in the home; Mr. Reddy

studied law, worked in real estate and, beginning in

roughly 1991, became active in the local politics of a

regional party, the Telugu Desam Party (“TDP”).

Mr. Reddy rose through the local ranks of the TDP, eventu-

Nos. 11-3622 & 12-2596 3

ally attaining the position of a “legal cell general secre-

tary.” 1 His party work occurred on a daily basis, without

compensation, and totaled a few hours a week, while

his real estate business provided his living. 2 His posi-

tion afforded him a degree of influence over public mat-

ters. Because of his position, he also sometimes at-

tempted to mediate private disputes as a representative

of the TDP.

A “land mafia” had been active in Mr. Reddy’s area

of the country since the 1990s.3 According to Mr. Reddy’s

description, the land mafia illegally “grab[s]” public land

to sell on the private market.4 Their precise workings

are not clear from the record, but it is clear that they

use illegal means to acquire land, sometimes with the

complicity of government officials. They also capitalize

on the inefficiencies of the Indian judicial system,

knowing that any challenge to particular land actions

requires a complainant to institute a civil action that is

likely to languish over some period of years, even if it

would eventually be resolved against them.5 By the

early 2000s, the land mafia operating in Mr. Reddy’s

1

A.R. at 386. All record citations in this opinion are to the

Administrative Record filed in case 12-2596.

2

Id. at 387, 545.

3

Id. at 391.

4

See id. at 391-92. In the documents filed with the motion to

reopen, Mr. Reddy described them principally as “squatting” on

vacant land. Id. at 109.

5

See id. at 392.

4 Nos. 11-3622 & 12-2596

town consisted of twenty to thirty individuals, including

a man named Arjun, who was also a TDP official.

Allah Baksh,6 a neighbor of Mr. Reddy’s, began com-

plaining that the land mafia had constructed, on a public

road, a shop that partially blocked the entrance to

Baksh’s home. He initiated legal proceedings against

Arjun, and Mr. Reddy unsuccessfully attempted to arbi-

trate the dispute on behalf of the TDP. Baksh eventually

obtained an order to demolish the shop Arjun had

built, and, on January 28, 2002, when municipal

officials came to accomplish the demolition, several

hundred people were watching. Baksh walked out of a

store near his home, and Arjun and his men pursued

him. Mr. Reddy and dozens of others witnessed Arjun

and his companions murder Baksh using construc-

tion stones.

Mr. Reddy had reservations about testifying in the

ensuing legal proceedings. Nevertheless, he and more

than twenty other individuals ultimately agreed to co-

operate with the investigation and to testify against

Arjun and the mafia. Mr. Reddy claims that he was moti-

vated by a desire to take a firm stance on crime. Prior to

the trial, he was interviewed by a television station re-

garding the murder, and the evening report made his

name and face public. Mr. Reddy soon began receiving

threats: He received anonymous calls roughly twice a

6

Mr. Baksh’s name is transcribed inconsistently in the record.

We have used the form employed by the IJ’s opinion. See, e.g.,

id. at 331.

Nos. 11-3622 & 12-2596 5

week telling him that he was “finished”;7 twice rocks

were thrown into his home compound; and people

twice knocked on his door in the middle of the night

and ran. He made complaints to the police about the

threats. The land mafia also attempted to bribe him to

persuade Baksh’s widow to accept a compromise

and drop the criminal case. He declined and reported

the pressure to the authorities.

Ms. Bathula also was targeted. She was trailed by

Arjun’s associates five or six times and ultimately elected

to remain in the house for safety.

In February 2003, Mr. Reddy testified against Arjun

and his cohort. He was the only original witness who

had not been persuaded by bribe or threat to recant. The

men were convicted and sentenced to life imprison-

ment, but have since been released.

Following his testimony, the pressure on Mr. Reddy

and his family continued. He was run off the road by

another vehicle that deliberately had crashed into him,

and he was stopped on the street and again threatened

that he would be “finished.”

Throughout this period, Mr. Reddy had been given

significant police protection from the threat of harm

by Arjun and his associates. At certain times—the week

after trial, holidays, furlough periods for prisoners,

crowded festivals—police would remain at his home

around the clock. Mr. Reddy testified that, “[a]s a TDP

member, [he] had a little leverage in the police depart-

7

Id. at 431-32.

6 Nos. 11-3622 & 12-2596

ment,” and so the police “would help [him] if [he]

ha[d] some trouble.” 8

In May 2004, Ms. Bathula came to the United States for

a wedding, intending to stay three months. At about the

same time, national elections were held, and the

Congress Party, which is not allied with the TDP, took

power. The new Congress government removed the

former police official that had authorized the assistance

to Mr. Reddy and his family, and Mr. Reddy felt that

the family’s safety could not be assured. He therefore

instructed Ms. Bathula to remain in the United States.

Mr. Reddy traveled to the United States in June of

2006 on a visitor’s visa.

B. Removal Proceedings

1. Proceedings Before the IJ

In November 2004, a few weeks before the expiration

of her visitor’s visa, Ms. Bathula filed an asylum applica-

tion based on the events surrounding Baksh’s

murder and the trial at which Mr. Reddy had testified.

Ms. Bathula’s application was denied, and she was

placed in removal proceedings.

In June 2006, Mr. Reddy was admitted to the United

States as a visitor. Five months later, he filed his own

asylum application, on which he included Ms. Bathula

as a derivative. In early 2007, his application also was

denied, and he was placed in removal proceedings.

8

Id. at 405.

Nos. 11-3622 & 12-2596 7

Before the IJ, the separate proceedings involving

Ms. Bathula and Mr. Reddy were consolidated. Ms. Bathula

and Mr. Reddy filed an updated application requesting

asylum, withholding of removal and CAT relief. In

two hearings held two-and-one-half years apart, the

petitioners presented evidence in support of their claims.

Ms. Bathula and Mr. Reddy were the only witnesses.

In addition to the facts set forth above, the petition-

ers’ written submissions and testimony also addressed

several other subjects. Mr. Reddy claimed that during

the two years following Ms. Bathula’s entry into the

United States, he remained in India in hiding, moving

among relatives’ houses and staying away from his own

home. He admitted that he was not harassed in these

locations. He stated that he was forced to leave one rela-

tive’s home in the state of Goa upon learning of a plot

by the land mafia to find him. The Reddy home

was vacant during this period, and in 2005, when their

daughter briefly returned, she alerted the police that it

had been broken into, jewelry and valuables stolen, and

a rod-like weapon left on the bed. Ms. Bathula also

testified about an incident involving their daughter in

which men associated with the land mafia unsuccessfully

attempted to kidnap her;9 Ms. Bathula’s testimony re-

9

As the daughter’s own affidavit submitted with the motion to

reopen describes it, on a return home from school one day she

saw a man who she knew to be associated with the land

mafia. He opened the trunk and came towards her with his

arms out, which she interpreted as an attempt to take her.

(continued...)

8 Nos. 11-3622 & 12-2596

garding the details, however, was somewhat vague and

inconsistent, especially as to the date. The family stated

that although the son safely attended flight school,

the daughter was unable to continue her schooling and

was forced to move every few months for her safety.

Ten months after the close of the proceedings, the

IJ issued a lengthy written decision denying all relief

and ordering removal.

The IJ credited the bulk of the petitioners’ testimony

regarding the existence of the land mafia, Mr. Reddy’s

role in opposing its members at the murder trial and the

actions taken by the land mafia against the family in

response. The IJ, however, found the petitioners’ testi-

mony not credible on several points: First, the IJ did not

credit Mr. Reddy’s testimony about his movements in

the two-year period after the trial and before he

departed for the United States, calling it “vague and

unpersuasive” and “not sufficiently detailed to be credi-

ble.” 10 Second, the IJ concluded that Ms. Bathula’s account

of the attempted kidnapping of their daughter

was “conflicting and uncorroborated.”1 1 Specifically, the

IJ observed that the written submissions had indicated

that the incident occurred in June 2004, when the

Congress party was in power and Ms. Bathula was in

9

(...continued)

She was on a public street and screamed out, and her alleged

kidnapper fled. Id. at 139.

10

Id. at 337, 338.

11

Id. at 338.

Nos. 11-3622 & 12-2596 9

the United States, but her oral testimony indicated that

it had occurred in 2003, when the TDP was in power. In

his view, “the date of the attempted kidnapping . . . [wa]s

so unclear as to call into question whether it occurred

at all.” 12 Finally, although the IJ generally accepted the

testimony regarding the land mafia’s local activities

and found it corroborated by the documentary evidence

in the record, he did not believe that the evidence sup-

ported Mr. Reddy’s assertions that the local network

had nationwide connections that would have en-

dangered him anywhere in India.

Turning to the legal basis for the claim, the IJ found

(1) that the petitioners had not established that any

harms they suffered were “on account of” a protected

ground (the “nexus” requirement), (2) that the harms

suffered in the past did not rise to the level of persecution

and (3) that the possibility of internal relocation pre-

cluded a finding of a well-founded fear of future persecu-

tion.

Regarding nexus to a protected ground, the IJ first

expressed doubt that either social group identified by

the petitioners, “active, law-supporting citizens” or “those

willing to participate, despite personal risk, in the orderly

administration of justice against criminal elements,” were

the basis for the harms that Mr. Reddy and his family

12

Id. at 344.

10 Nos. 11-3622 & 12-2596

suffered.13 The IJ noted that the record was devoid of

any evidence of widespread harm to the large group of

law-supporting citizens who never had interfered

with the land mafia. Further, he found that, despite

Mr. Reddy’s opposition to the land mafia’s activities,

Arjun and his cohort did not seek to harm him until he

testified against them; in the IJ’s view, therefore, the

land mafia’s motivation was retribution for the testimony.

Citing Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009), and

Wang v. Gonzales, 445 F.3d 993 (7th Cir. 2006), the IJ con-

cluded that such a motivation was best characterized

as personal animus rather than membership in any iden-

tifiable social group necessary to establish asylum eligi-

bility.

Nor, in the IJ’s view, had the petitioners presented

a viable political opinion claim. The petitioners acknowl-

edged that TDP membership had not motivated the

land mafia, but they claimed it was the reason that the

police had denied protection to the family following the

2004 elections and the change in government. The IJ

disagreed. He noted Mr. Reddy’s testimony that, in the

period before and immediately following the trial, when

the TDP was in power, his TDP membership had

afforded him additional access to law enforcement re-

sources, including twenty-four hour protection at his

home for periods of time. In his view, the fact that, follow-

13

Id. at 341. The IJ presumed that this group encompassed

Baksh as well, because he had challenged the land mafia in

civil courts.

Nos. 11-3622 & 12-2596 11

ing the election, the family was no longer provided

with protective law enforcement presence at their home

was better characterized as “a lack of special treatment”

previously provided on the basis of TDP member-

ship rather “than a [new] policy of discrimination” against

TDP members after 2004.1 4

Regarding whether the family had suffered past persecu-

tion, the IJ concluded that the record fell short;

instead, the evidence demonstrated primarily a series of

unfulfilled threats and a pattern of harassment and in-

timidation. Although there had been testimony re-

garding “more serious and concrete threats,” including

the attempted kidnapping, the IJ already had deter-

mined that the testimony was not credible on these

points.15 With no threat carried out, and no threat “so

immediate and menacing” as to itself qualify as persecu-

tion, the harms “in the aggregate” did not rise to the

level of persecution.1 6

Furthermore, the IJ found no evidence that the govern-

ment was unable or unwilling to protect the fam-

ily. Although the significant protection they had received

from the TDP-appointed law enforcement officials had

ended, the IJ concluded that there were many reasons

such a decision could have been made by an unbiased

officer. He noted that the change of government had

14

Id. at 342.

15

Id. at 344.

16

Id.

12 Nos. 11-3622 & 12-2596

occurred a year after the trial and, in the interim, the

perpetrators had been sentenced and imprisoned. The IJ

also concluded that the prosecution of Baksh’s murderers

demonstrated that “[t]he government ha[d] proven capable

of protecting the [petitioners].” 1 7 The IJ already had

rejected Mr. Reddy’s testimony regarding his two years in

hiding, but separately found that, because the evidence

regarding the years following the trial was “generalized”

and included “very few details regarding his life interac-

tions with the local police, or his life as a fugitive,” it was

“impossible . . . to conclude that the [Indian] government

became completely helpless or apathetic to the [petition-

ers’] plight.” 18 The IJ also suggested that denial of police

protection services at the family home was not itself a

sufficient harm to amount to persecution.

Finally, on the issue of a well-founded fear of future

persecution, the IJ held that the family had not demon-

strated adequately an inability to relocate within India.

The IJ concluded that the particular land mafia was a

local one. It operated in a specific town and was con-

trolled principally by the Eranolla family, of which

Arjun was a member. Mr. Reddy’s claims to the contrary

were, in the IJ’s view, speculative and lacked “objective

and reliable” support in the evidentiary record.1 9 The

record did not support the assertion that Mr. Reddy

would have to remain effectively in hiding to have a

17

Id.

18

Id.

19

Id. at 346.

Nos. 11-3622 & 12-2596 13

measure of safety in India. Indeed, the IJ specifically

noted that Mr. Reddy’s son had lived in New Delhi

without any difficulty.

Having concluded that the petitioners did not meet

the burden of establishing eligibility for asylum, the IJ

also denied relief under the higher standards of proof

applicable to withholding of removal. The IJ also denied

the petitioners’ CAT claim without considering whether

the record supported a likelihood of torture, instead

concluding again that the possibility of internal reloca-

tion barred such relief.

2. Appeal to the BIA

The petitioners, still represented by their trial attorney,

appealed the denial of asylum and withholding to the

Board, but abandoned their CAT claim. The Board

adopted and affirmed the IJ’s decision ordering removal,

but added as well its own analysis.

The Board first rejected the petitioners’ claim that the

IJ had disregarded the evidence or had failed to

aggregate the harms that both petitioners suffered. It also

agreed with the IJ’s determination that the harm did not

rise to the level of persecution. On the subject of nexus,

the Board described the petitioners’ situation as “unfortu-

nate,” but agreed with the IJ’s conclusions that the peti-

tioners’ harms were based on “a purely personal mat-

ter” that was “not tethered to a statutorily protected

14 Nos. 11-3622 & 12-2596

category.” 20 The Board further agreed that Mr. Reddy

was not harmed on the basis of his political opinion

when the police officials appointed by the new Congress

government declined to extend him the same “special

privileges” that had been provided under the previous

administration on account of Mr. Reddy’s “political

connections.” 21 Finally, the Board noted without discus-

sion that the petitioners “failed to meet their burden

of establishing a well-founded fear of future persecution

by showing a reasonable possibility of persecution that

cannot be avoided by reasonably relocating within[]

their home country given the local nature of the ‘land

mafia’ criminals.” 22

In summary, the Board concluded that the IJ had

“correctly determined that the [petitioners] fear a small

number of criminals, that their account indicates that the

police are capable of protecting the public, and that the

[petitioners] may relocate to avoid any future problems.” 2 3

Accordingly, for the reasons identified in the Board’s

opinion “and those additional and alternative bases

20

Id. at 258. The Board assumed without deciding that

the social groups proffered by the petitioners were cognizable

under the Immigration and Nationality Act, but concluded

that the harms that the family had suffered were not “on

account of” membership in the identified groups. Id.

21

Id.

22

Id.

23

Id.

Nos. 11-3622 & 12-2596 15

and reasons discussed by the Immigration Judge,” the

Board adopted and affirmed the order of removal. 2 4

3. Motion to Reopen Proceedings Before the Board

The petitioners retained new counsel and moved to

reopen their proceedings with the Board. They contended

that their prior attorney had provided ineffective repre-

sentation, and, as a result, they were denied due process

of law. They addressed the requirements in the Board’s

decision setting forth the standards for ineffective assis-

tance claims, Matter of Lozada, 19 I. & N. Dec. 637 (BIA

1988). The petitioners contended that two of the prior

attorney’s decisions were so egregiously wrong as to

demonstrate ineffective assistance. First, they claimed

that, although their daughter was available in the United

States to testify at the time of the second hearing, their

attorney had not called her as an additional witness. The

failure, they contended, was consequential: The IJ had

refused to credit Ms. Bathula’s account of arguably the

most serious incident the petitioners had described, the

attempted kidnapping of their daughter. The IJ rejected

the testimony because Ms. Bathula’s uncorroborated

narrative had not given a consistent account of when it

had occurred. Second, they claimed that their attorney

was ineffective because he had not pursued the CAT

claim on appeal. The petitioners noted that the IJ and

Board had rejected their claims not only because they

24

Id. at 259.

16 Nos. 11-3622 & 12-2596

had failed to demonstrate past persecution or a well-

founded fear of future persecution, but also because

any harms that they had suffered did not have the nexus

to a protected ground required by the statute for

asylum and withholding of removal. The petitioners

observed that the statute requires no nexus to a protected

ground for a petitioner to succeed under the CAT, and,

therefore, their attorney’s decision to abandon the CAT

claim prejudiced their proceedings before the Board. In

their view, the CAT claim, because of the absence of a

nexus requirement, provided a stronger avenue for relief.

Along with the motion to reopen, they submitted an

affidavit from their daughter in which she described the

attempted kidnapping, as well as an incident in which

her scooter was rammed from behind and an incident

in which she elected to remain safely inside a college

building after believing she saw the same car involved in

the attempted kidnapping outside waiting for her.2 5

25

The filings also included the petitioners’ prior attorney’s

response to the disciplinary complaint that the petitioners

had filed against him. He claimed that Mr. Reddy was

adamant that his daughter should not testify or otherwise be

involved in the proceedings, and that, in any event, he

believed that, in the limited time he had to present the peti-

tioners’ case to the IJ, the petitioners’ own testimony was of

greater significance. In his words, he made a tactical choice

not to appeal the CAT claim, because he believed it was

weaker; although a nexus to a protected ground was not

required to succeed, the petitioners would have to have

(continued...)

Nos. 11-3622 & 12-2596 17

The Board denied the motion to reopen. It noted that the

claim had been denied in part because the petitioners

had failed to establish the requisite nexus, and the daugh-

ter’s testimony would not have corrected that failing.

It also ruled that the former attorney’s “tactical decision”

not to appeal the CAT claim did not cause prejudice,

because it did not address the failure of the petitioners

to establish that internal relocation was not possible.2 6

Ms. Bathula and Mr. Reddy timely petitioned for

review of each decision.

II

DISCUSSION

A. The Initial Order of Removal

1. Standards on Review

Where, as here, “the BIA’s decision adopts and affirms

the IJ’s conclusion as well as provid[es] its own analysis,

25

(...continued)

shown a higher level of harm, which the IJ already had found

lacking under the lower burden applicable to asylum. The

petitioners submitted a supplemental affidavit disputing

their attorney’s account of the decision not to have their daugh-

ter testify.

26

Id. at 4. In a footnote, the Board took note of the attorney’s

response, which indicated that the decision not to appeal the

CAT claim was based on the “lack[ of] solid evidence or a

solid argument regarding both internal relocation and govern-

ment acquiescence for purposes of CAT relief.” Id.

18 Nos. 11-3622 & 12-2596

we review both decisions.” Familia Rosario v. Holder, 655

F.3d 739, 743 (7th Cir. 2011). We review the Board’s

decision denying asylum and withholding of removal

for substantial evidence. Vahora v. Holder, 626 F.3d 907,

912 (7th Cir. 2010). “Our standard of review for legal

questions is de novo; [h]owever, we defer to the Board’s

factual findings, reversing the Board only if the record

lacks substantial evidence to support its factual conclu-

sions.” Id. (alteration in original) (internal quotation

marks omitted). “Under the substantial evidence

standard, the agency’s determination will stand if it is

supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” Id. (internal

quotation marks omitted). Reversal is appropriate only

where, reviewing the record as a whole, “a reasonable

factfinder would have to” reach a contrary conclusion.

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

In order to obtain asylum, an alien must establish that

he meets the definition of a refugee set forth in 8 U.S.C.

§ 1101(a)(42)(A), specifically, that he “is unable or unwill-

ing to return to, and is unable or unwilling to avail

himself . . . of the protection of, [his home] country

because of persecution or a well-founded fear of persecu-

tion on account of race, religion, nationality, membership

in a particular social group, or political opinion.”

To establish eligibility for withholding of removal,

an alien must demonstrate a “clear probability,” Mustafa

v. Holder, 707 F.3d 743, 751 (7th Cir. 2013) (internal quota-

tion marks omitted), that his “life or freedom would be

threatened in that country because of the alien’s race,

Nos. 11-3622 & 12-2596 19

religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A).

An alien’s proof of eligibility for asylum or withholding

may follow one of two paths, or, in many cases, both:

He must show that he has suffered past persecution or

that he has a well-founded fear of future persecution.2 7

If the alien can establish that he has suffered past persecu-

tion on the basis of a protected ground, the existence of a

well-founded fear is presumed. 8 C.F.R. § 1208.13(b)(1)

(asylum); id. § 1208.16(b)(1) (withholding). The Govern-

ment can rebut the presumption by showing either a

fundamental change in conditions in the applicant’s

home country or that, “under all the circumstances,

it would be reasonable to expect the applicant to”

relocate “to another part of the applicant’s country.” Id.

§ 1208.13(b)(1)(i) (asylum); see also id. § 1208.16(b)(1)(i)

(withholding). “In cases in which the applicant has not

established past persecution,” that is, where the alien

proceeds by claiming exclusively a well-founded fear of

future persecution, however, “the applicant shall bear

the burden of establishing that it would not be reasonable

for him . . . to relocate, unless the persecution is by a

go ve rn m en t o r is governm ent-sponsored.” Id.

§ 1208.13(b)(3)(i) (emphasis added) (asylum); see also id.

§ 1208.16(b)(2) (withholding).

Mr. Reddy and Ms. Bathula attempted to estab-

lish past persecution and a well-founded fear of future

27

A well-founded fear is one that is both “subjectively genuine

and objectively reasonable.” Bolante v. Mukasey, 539 F.3d 790,

794 (7th Cir. 2008).

20 Nos. 11-3622 & 12-2596

persecution. Their claims were denied by the agency

on multiple grounds. First, the IJ and Board found that

the harms the petitioners experienced did not rise to

the level of past persecution. Second, the IJ and Board

found that, even if the harms did rise to the level of past

persecution, the petitioners had not identified a nexus to

a protected ground under the statute, i.e., that they

had been persecuted, or would be persecuted on account

of race, religion, nationality, membership in a particular

social group, or political opinion. Finally, because

the agency concluded that there had been no showing

of past persecution, the petitioners could succeed only

by demonstrating independently a well-founded fear of

future persecution and that the risk of that persecution

was present on a country-wide basis such that internal

relocation was not reasonable. The IJ and Board deter-

mined that the petitioners had not carried this burden.

The petitioners claim that each of the agency’s deter-

minations is not supported by substantial evidence.

We address their arguments in turn. However, because

we conclude that the agency’s conclusions regarding a

lack of past persecution and a lack of a nexus under the

statute are supported by substantial evidence, we need

not and do not consider whether the record establishes

that internal relocation would have been unreasonable

or that the Indian government was involved in or acqui-

esced in the land mafia’s treatment of the petitioners.

2. Past Persecution

The IJ credited the petitioners’ testimony that, in the

months leading up to and following Mr. Reddy’s testi-

Nos. 11-3622 & 12-2596 21

mony at the murder trial, the family received calls

roughly twice a week threatening to “finish” Mr. Reddy,

the compound was twice attacked by someone throwing

rocks and twice individuals approached the door in

the middle of the night and then fled. In addition,

Mr. Reddy was approached on the street by a land mafia

associate and told that he would be “finished.” On

another occasion, his car was run off the road by

someone he identified as associated with the land mafia.

Ms. Bathula and their daughter also were trailed five or

six times by a relative of Arjun, and Ms. Bathula felt it

safer if she remained in the home.

In reaching the conclusion that these harms, considered

in the aggregate, did not rise to the level of persecution,

the IJ began by noting the general rule that threats are

insufficient to demonstrate past persecution, citing

Bejko v. Gonzales, 468 F.3d 482, 486 (7th Cir. 2006). He

characterized the harm suffered by the family as “a series

of threats and harassment.” 2 8 The petitioners take issue

with this characterization of the record as an understate-

ment of their treatment by the land mafia. They submit

that the incidents described rose above threats to actual

harm, and that, in any event, even if the record could

be characterized as showing threats alone, those threats

were of sufficient severity to constitute persecution with-

out actual harm.

We begin by noting that neither the IJ nor the BIA

employed a “threats-alone” approach to the petitioners’

28

A.R. at 343.

22 Nos. 11-3622 & 12-2596

evidence. Moreover, the language of the IJ’s opinion,

noting a pattern of “threats and harassment” echoes pre-

cisely the language we often employ to distinguish be-

tween those harms that rise to the level of past persecu-

tion and those that do not. See, e.g., Chun Hua Zheng v.

Holder, 666 F.3d 1064, 1067 (7th Cir. 2012) (describing

beating as conduct that “crosses the line that dis-

tinguishes persecution from mere harassment” (emphasis

added)). In any event, our task is to assess whether the

agency’s ultimate conclusion that the record does not

establish past persecution is supported by substantial

evidence. See Elias-Zacarias, 502 U.S. at 481. We conclude

that it is.

In considering the line between conduct that is best

characterized as harassment and conduct that is truly

persecutory, we recently stated:

Harassment involves targeting members of a

specified group for adverse treatment, but without

the application of significant physical force.

Had [the alleged persecutors,] furious at [the peti-

tioners] being soft on Albanians[,] followed his

taxi (he was a taxicab driver in Macedonia) and

ticketed him whenever he exceeded the speed

limit by one mile per hour, that would be an

example of harassment. A common form of sexual

harassment is pestering a subordinate for a date or

making lewd comments on her appearance, or

perhaps hugging her, which is physical but gener-

ally not violent.

Persecution involves, we suggest, the use of

significant physical force against a person’s body,

Nos. 11-3622 & 12-2596 23

or the infliction of comparable physical harm

without direct application of force (locking a

person in a cell and starving him would be an

example), or nonphysical harm of equal grav-

ity—that last qualification is important because

refusing to allow a person to practice his religion

is a common form of persecution even though

the only harm it causes is psychological. Another

example of persecution that does not involve

actual physical contact is a credible threat to

inflict grave physical harm, as in pointing a gun

at a person’s head and pulling the trigger but

unbeknownst to the victim the gun is not loaded.

The line between harassment and persecution is

the line between the nasty and the barbaric, or

alternatively between wishing you were living

in another country and being so desperate that

you flee without any assurance of being given

refuge in any other country.

Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011)

(emphasis in original).

Here, the cases that the petitioners cite in support of

their assertion that the record establishes past persecu-

tion speak of harms on a wholly different order than

what the petitioners themselves were forced to endure.

See Pet’rs’ Br. 12-13 (collecting cases). Although the peti-

tioners rightly assert that we have held that credible

threats of imminent death or serious physical harm can

themselves amount to past persecution, Boykov v. INS,

109 F.3d 413, 416 (7th Cir. 1997) (acknowledging that

24 Nos. 11-3622 & 12-2596

threats “of a most immediate and menacing nature

might, in some circumstances, constitute past persecu-

tion”), we have done so under circumstances much

more severe than those presented here. The character of

the threats and the accompanying menacing behavior in

the present case, even when we account for the fact

that they were carried out by a group with the ability

and will to physically harm or kill its opponents, are

simply not such as would require the agency to

conclude that they amount to persecution. In particular,

although the family was not under constant protection

and had numerous personal encounters with members

of the land mafia, no serious harm ever befell them,

despite the fact that the group was willing to murder

another opponent in plain sight of a crowd on a public

street. Cf. Vahora, 626 F.3d 907 (holding that a teenager

targeted after he witnessed a murder, who was chased

from his home by the perpetrators, who was repeatedly

and menacingly sought after his departure, and whose

grandparents’ home was burned, had not established

past persecution).

Accordingly, the agency’s decision that the petitioners

did not suffer past persecution is supported by substantial

evidence, and we shall not disturb it.

3. Nexus to a Protected Ground

Even if an alien satisfies the burden of establishing the

requisite fear of persecution, he does not automatically

obtain relief: “He must also show that the feared persecu-

tion would be on account of his race, religion, nationality,

Nos. 11-3622 & 12-2596 25

membership in a particular social group, or political

opinion.” Matter of Mogharrabi, 19 I. & N. Dec. 439, 447

(BIA 1987).

Before the agency, the petitioners put forward claims

related to Mr. Reddy’s political opinion as an official in

the TDP, as well as membership in two possible social

groups: “active, law-supporting citizens” and “those

willing to participate in the legal process, despite great

personal risk, to ensure justice against criminal elements.” 2 9

The Board, however, viewed any harm that the peti-

tioners suffered as the result of a “personal dispute” with

the land mafia “that is not tethered to a statutorily pro-

tected category.” 30 The Board further stated that “even

assuming, arguendo, that the [petitioners’] proposed

social groups are sufficient under the Act, they have

failed to establish that the past or feared harm in India

is on account of their membership in such groups, or on

account of any other protected ground.” 3 1

We need not examine the sufficiency of the petitioners’

proffered social groups under the statute because we

conclude that the Board’s decision that the petitioners

failed to establish that any harm befell them on account

of their membership in either group is supported by

substantial evidence. As the Board noted, the record is

devoid of evidence that “active, law-supporting citizens,”

29

A.R. at 258 n.2

30

A.R. at 258.

31

Id. (second emphasis added).

26 Nos. 11-3622 & 12-2596

generally, are targeted for persecution in India.

Although the more specific group of “those willing to

participate in the legal process, despite great personal risk,

to ensure justice against criminal elements” presents a

closer question, it does so only modestly. As the Board

points out, the record evidence does not suggest that

Mr. Reddy was targeted because he was willing, or, in

fact, did “participate in the legal process.” There is no

suggestion in the record that the land mafia sought to

destroy the legal process generally, or to attack those

who supported it. Mr. Reddy’s filings clearly demon-

strate that he was the victim of intimidation and then

retaliation for his specific testimony in a specific case

against the land mafia.3 2

32

Before this court, the petitioners essentially admit that this

much narrower issue was the land mafia’s motivation, here

describing their social group as “people willing to be witnesses

to ensure prosecution of crimes the land mafia commits.” Pet’rs’

Br. 18. The petitioners claim that this makes their case compara-

ble to Sepulveda v. Gonzales, 464 F.3d 770, 772 (7th Cir. 2006), in

which we remanded a case for further proceedings upon

concluding that former prosecutors targeted by an insurgent

group could constitute a social group. Even if this formula-

tion had been preserved by presenting it directly to the Board,

cf. A.R. at 262-63 (describing the proffered social groups in

the appeal to the Board without this formulation), we are not

persuaded that Sepulveda, rather than Pavlyk v. Gonzales, 469

F.3d 1082, 1088-89 (7th Cir. 2006), is the closest analog in

our cases.

(continued...)

Nos. 11-3622 & 12-2596 27

The Board’s conclusion that Mr. Reddy had not demon-

strated that he was harmed “on account of” his political

opinion is also supported by substantial evidence. There

is nothing in the record to support the view that the

land mafia opposed Mr. Reddy because of his TDP mem-

bership; indeed, Arjun himself also held a position of

some authority in the party. Further, to the extent that

the political opinion claim is based upon the withdrawal

of police protection, again, the Board did not err in con-

cluding that the record failed to establish that it was

32

(...continued)

In Pavlyk, we rejected a proposed social group of “uncorrupt

prosecutors” interested in “exposing government corruption.”

Id. at 1088. We noted that the petitioner had not presented

evidence of vulnerability intrinsic to the proposed group;

instead, the record suggested that “any persecution stemmed

from his conduct in [two] particular investigations and not

because of his status as a member of a group of prosecutors.”

Id. at 1088-89. The same is true of the record in this case. The

land mafia’s targeting of the petitioners was directly related

to Mr. Reddy’s testimony in the murder trial. The evidence

he has presented does not show that witnesses against the

land mafia are persecuted generally, or, indeed, that there

have been any other prosecutions and witnesses.

In any event, the petitioners have forfeited any argument

about this narrower social group formulation by failing to

present it to the agency. Further, the en banc court recently

heard argument in Cece v. Holder, No. 11-1989, on the

meaning of the statutory term “particular social group” and

related Board precedents, and we decline to wade into these

waters unnecessarily in this case.

28 Nos. 11-3622 & 12-2596

based upon Mr. Reddy’s TDP membership. Although the

change in the family’s treatment by the authorities oc-

curred following the replacement of the a local police

official by the new Congress government, the IJ and Board

both reasonably concluded that the decision not to post

officers at the family home preemptively may have had

“some other legitimate basis.” A.R. at 258; see also id. at

342 (“[T]he poorly trained and underfunded police may

have simply decided to direct scarce resources toward

other needs in the community. . . . [T]he men he testified

against were in jail. A reasonable, unbiased [police

official] may have directed resources to more urgent

needs. In fact, [Mr. Reddy] suggested that the protection

that he received before May of 2004[] was due to his

political connections.”).

On review, the petitioners contend that the agency

understated the change in treatment. In their view, the

family was denied “the ordinary protection all citizens

should be entitled to from the police,” not merely any

“special” privileges to police protection they received

during the TDP’s term in power. Pet’rs’ Br. 21. As evi-

dence, they cite the fact that, following the home

invasion, his daughter attempted to make a police

report, but when Mr. Reddy later inquired about the

status of the investigation, he was told that no report

had been made. Even if we were to conclude that this

single incident involving the response of the police to the

break-in constituted persecution, which we do not, the

petitioners simply have not put forward sufficiently

“compelling” evidence, “direct or circumstantial,” that

the police were motivated by his TDP membership. See

Nos. 11-3622 & 12-2596 29

Elias-Zacarias, 502 U.S. at 483-84. The petitioners rely

primarily on the timing of the change in treatment—that

it occurred following the change in power. Although that

is permissible evidence that could support an inference

of political motive, it is certainly not so strong as to

require the Board to have accepted it.3 3 In short, this is

simply not a case where “the factual circumstances

alone may constitute sufficient circumstantial evidence

of a persecutor’s . . . motives.” Martinez-Buendia v. Holder,

616 F.3d 711, 715 (7th Cir. 2010) (alteration in original)

(internal quotation marks omitted); cf. id. at 717 (noting

the existence of “uncontested evidence in the re-

cord” that the alleged persecuting group, the FARC,

viewed members of petitioner’s group “as political oppo-

nents”).

33

See, e.g., Bueso-Avila v. Holder, 663 F.3d 934, 938 (7th Cir. 2011)

(“The fact that some of the threats against Bueso-Avila

occurred after church group meetings does not necessarily

mean that the gang members were reacting to Bueso-Avila’s

religious beliefs[.] . . . Bueso-Avila’s testimony that . . . the gang

members persecuted him on account of these characteristics[]

is an inference based on circumstantial evidence. Now this is a

possible and legitimate inference to make. But we cannot

say that this inference is supported by circumstantial evidence

that is so compelling that no reasonable fact-finder could

fail to find that the MS-13 gang was motivated to persecute

Bueso-Avila on the basis of his religion or group member-

ship.” (internal quotation marks omitted)).

30 Nos. 11-3622 & 12-2596

B. The Motion to Reopen

In addition to their challenge to the underlying order

of removal, the petitioners claim that the Board erred in

denying their motion to reopen on the basis of ineffective

assistance of counsel. We review the decision to deny a

motion to reopen “for an abuse of discretion, upholding

it unless it was made without rational explanation, in-

explicably departed from established policies, or rested

on an impermissible basis.” Marinov v. Holder, 687 F.3d

365, 368 (7th Cir. 2012).

At the merits hearings, prior counsel did not offer the

Reddys’ daughter as a witness; following the removal

orders issued by the IJ, prior counsel also elected not

to appeal the IJ’s denial of CAT relief to the BIA. Peti-

tioners moved to reopen claiming that these decisions

demonstrated that they had received ineffective assis-

tance. The Board denied reopening upon concluding that,

even if counsel’s performance were deficient, the petition-

ers had not shown any prejudice. The petitioners, appro-

priately, do not dispute the Board’s methodology,3 4 but

contend that its prejudice determinations were erroneous.

We begin with the CAT claim. The petitioners

contend that the claim was “at least as strong as the

asylum and withholding claims” because no nexus is

34

To succeed on an ineffective assistance claim, the petitioners

must demonstrate not only that counsel’s performance was

deficient, but that they “could have succeeded on the merits”

of their claims, but for counsel’s defective performance.

El-Gazawy v. Holder, 690 F.3d 852, 860 (7th Cir. 2012).

Nos. 11-3622 & 12-2596 31

required, and that was a principal failing identified by

the agency in its denial of asylum and withholding.

Pet’rs’ Br. 11. This is not a correct statement of the

burdens applicable in a CAT case as we have identified

them: “Although the torture need not be on account of

one of the enumerated traits required for asylum claims,

the burden of proof for CAT protection is nonetheless

more stringent than the burden for establishing asylum

eligibility.” Hassan v. Holder, 571 F.3d 631, 644 (7th Cir.

2009) (emphasis added) (internal quotation marks omit-

ted). Because the asylum and withholding claims

were denied on the grounds that the petitioners failed to

establish persecution in addition to the failure to establish

a nexus, it is simply incorrect to state that the CAT

claim, which required a showing not merely of a likeli-

hood of persecution, but torture, was on stronger footing

than the other requests for relief. Sarhan v. Holder, 658

F.3d 649, 653 (7th Cir. 2011) (“Unlike the remedy of with-

holding of removal, relief under the CAT is not condi-

tioned on proof that the alien has been persecuted

because of one of the five grounds listed in the INA. On

the other hand, the need to prove ‘torture[]’ . . . sets a

high bar for relief.”).

In any event, the Board decided the prejudice issue

only on the ground that the petitioners “submitted insuffi-

cient evidence with their motion which would alter the

Immigration Judge’s finding that the [petitioners] could

32 Nos. 11-3622 & 12-2596

safely relocate into another part of India,” 3 5 and it is

this reasoning upon which the agency’s decision must

stand or fall, SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)

(noting that a court cannot affirm an agency’s inade-

quately justified decision “by substituting what it con-

siders to be a more adequate or proper basis”).

The petitioners claim that the agency committed numer-

ous errors in arriving at its relocation finding: failing to

consider Mr. Reddy’s testimony about attempted reloca-

tion, failing to balance factors against the possibility of

internal relocation under the CAT and improperly

placing the burden to establish the unreasonableness of

relocation on the petitioners.3 6

The objections, on the record before us, are without

merit. Although it is certainly correct that relocation is

not “reasonable” if it requires a petitioner to “live in

35

A.R. at 4.

36

Contrary to the petitioners’ assertions that the Board did not

“squarely discuss” relocation, Pet’rs’ Br. 15, the Board specifi-

cally held in its original order dismissing the appeal that

“[t]he Immigration Judge correctly determined that the [peti-

tioners] fear a small number of criminals, that their account

indicates that the police are capable of protecting the public,

and that the [petitioners] may relocate to avoid any future

problems.” A.R. at 258; see also id. (noting that the petitioners

“failed to meet their burden of establishing a well-founded

fear of future persecution by showing a reasonable possibility

of persecution that cannot be avoided by reasonably relocating

within[] their home country given the local nature of the

‘land mafia’ criminals”).

Nos. 11-3622 & 12-2596 33

hiding,” see, e.g., Sarhan, 658 F.3d at 661, the record does

not require the conclusion that this was Mr. Reddy’s fate.

The IJ considered Mr. Reddy’s testimony and determined

that, on the salient points, he was not credible, in part

because there was no objective evidence in the record

to support his assertion of the land mafia’s nationwide

reach. Moreover, because we already have held that the

finding of a lack of past persecution was supported by

the record, it was not error to require the petitioners to

bear the burden of proving that relocation was unrea-

sonable. See Rashiah v. Ashcroft, 388 F.3d 1126, 1132 (7th

Cir. 2004) (assuming that the burden-shifting frame-

work applies in CAT cases, holding that an IJ did not err

in holding the burden to the petitioners where she “explic-

itly found that petitioner had not presented evidence

establishing past persecution or a well-founded fear of

future persecution”); cf. Perez-Ramirez v. Holder, 648

F.3d 953, 958 (9th Cir. 2011) (shifting the burden on re-

location in a CAT claim where the IJ specifically found

that the past treatment the alien suffered constituted

torture).

The petitioners also claim that the IJ erred in failing

to consider relocation as only one piece of a broader

CAT inquiry. The regulations direct that the agency

consider “all evidence relevant to the possibility of

future torture,” and provide a non-exclusive list

including the possibility of internal relocation among

34 Nos. 11-3622 & 12-2596

other factors. See 8 C.F.R. § 1208.16(c)(3)(i)-(iv).3 7 We agree

with the petitioners that CAT claims are to be treated

under this multi-factor analysis and that the Board’s

decision in this case, brief as it is on this topic, does not

make clear that it used this approach. Nevertheless, we

must read this section of the opinion in context.

Although there is no other specific, stated finding on

CAT relief, in the context of evaluating the petitioners’

other claims, the Board already had concluded that the

past treatment that the petitioners had suffered did not

reach the level of persecution. A fair reading of the

Board’s opinion, therefore, is that the petitioners also did

not establish that they had been tortured in the past. See

37

Subsection 1208.16(c)(3) of Title 8 of the Code of Federal

Regulations provides:

(3) In assessing whether it is more likely than not that

an applicant would be tortured in the proposed country

of removal, all evidence relevant to the possibility of

future torture shall be considered, including, but

not limited to:

(i) Evidence of past torture inflicted upon the

applicant;

(ii) Evidence that the applicant could relocate

to a part of the country of removal where he or

she is not likely to be tortured;

(iii) Evidence of gross, flagrant or mass viola-

tions of human rights within the country of

removal, where applicable; and

(iv) Other relevant information regarding

conditions in the country of removal.

Nos. 11-3622 & 12-2596 35

Nuru v. Gonzales, 404 F.3d 1207, 1225 (9th Cir. 2005)

(“[Torture] is a fortiori conduct that reaches the level of

persecution.”). In this context, with these two critical

findings against the petitioners, it was not error for the

Board to deny reopening on the basis that they were not

prejudiced by the failure of prior counsel to pursue a

CAT claim on appeal.

The petitioners also claim that ineffective assistance

is demonstrated by the failure to present their daughter’s

testimony in the removal hearing. The petitioners acknowl-

edge that the daughter’s testimony could not alter

the nexus finding and therefore would not have affected

the asylum and withholding decisions. They claim, how-

ever, that it should have been presented to support

the CAT claim. Given its content, we cannot conclude

that the daughter’s testimony would have established

torture, or, as the Board found, that it would have

affected the relocation analysis. Under these circum-

stances, the Board did not err in concluding that the

failure to present the daughter was not prejudicial to

the CAT claim.

Conclusion

The petitioners have not presented evidence that

would require a factfinder to conclude that they were

subjected to past persecution or that any harm they

suffered was on account of a statutorily protected

ground. Accordingly, we deny the petition for review

with respect to their underlying removal order. Further,

the Board did not irrationally deny their motion to

36 Nos. 11-3622 & 12-2596

reopen on the basis of ineffective assistance because

the petitioners have not established prejudice from any

of counsel’s actions.

P ETITIONS D ENIED

7-25-13