Ambati, George R. v. INS

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3211

GEORGE R. AMBATI and

PRANAYKUMAR AMBATI,

Petitioners,

v.

JANET RENO, Attorney General, and

IMMIGRATION AND NATURALIZATION SERVICE,

Respondents.

Petition for Review of an Order

of the Board of Immigration Appeals

A72 778 728/726

SUBMITTED AUGUST 9, 2000--DECIDED DECEMBER 7, 2000

Before POSNER, RIPPLE and WILLIAMS, Circuit

Judges.

RIPPLE, Circuit Judge. George Reddy

Ambati and his son, Pranaykumar Ambati

("Pranaykumar"), practicing Christians

and natives and citizens of India, seek

review of the decision of the Board of

Immigration Appeals ("BIA") dismissing

their appeals. The Ambatis contend that

the BIA lacked substantial evidence for

its determination that Mr. Ambati failed

to demonstrate either past persecution or

fear of future persecution on account of

his religion. They further contend that

the BIA erred in upholding the

Immigration Judge’s ("IJ") denial of

their request for a continuance to allow

their attorney time to prepare their

case. They also challenge the Board’s

conclusion that Pranaykumar’s appeal was

untimely. For the reasons set forth in

the following opinion, we affirm.

I

BACKGROUND

The Ambatis are practicing Christians of

the Roman Catholic faith. Both Mr. Ambati

and his wife come from Christian farming

families who still reside in villages in

India. They have two children--a son born

in India and a daughter born in the

United States. Although Mr. Ambati

resides with his son in the United

States, his wife and daughter reside in

India. Mr. Ambati’s parents and all six

of his brothers and sisters live in India

in close proximity to one another. Mr.

Ambati supports his parents and siblings

from his earnings in the United States.

A. Mr. Ambati’s Testimony before the

Immigration Judge

Mr. Ambati completed both high school

and college in India. He first arrived in

the United States on a nonimmigrant

student visa in 1974. He received a

master’s degree from Oklahoma State

University and, in 1977, he returned to

India.

Mr. Ambati remained in India until 1991.

He lived and worked in Nagpur, a city

located 200 miles from his native village

where his parents still reside and

operate a family farm. While in Nagpur,

Mr. Ambati worked as an environmental

scientist for the Indian government from

1977 to 1991. During this period, he

experienced no difficulties in Nagpur as

a result of being Christian and was able

to attend church without "physical

handling" by those "hostile" to

Christians. R.114. However, he was afraid

of physical harm during his monthly

visits to his parents in their village.

Although Mr. Ambati confirmed that his

parents still regularly attended church

in their village, he stated that his

family had been subject to "religious

attacks" for the last ten years. R.115.

Mr. Ambati explained that, as Christians,

his family was neither liked nor accepted

by their neighbors. In fact, on several

unspecified occasions, his father and his

brothers were attacked and beaten at

night while returning from the fields. In

addition, Hindu farm workers would steal

from Mr. Ambati’s father’s farm and would

prevent other Hindus from working there.

In 1991, Mr. Ambati again entered the

United States on a nonimmigrant student

visa, this time to pursue a doctorate

degree at the Illinois Institute of

Technology in Chicago. He explained that

becoming a student was the only

opportunity for him to leave a country he

"very much wanted to . . . leave." R.120.

Soon after he arrived in Chicago, he

experienced serious financial

difficulties that caused him to leave

school and eventually move with his wife

and two children to New York City to

work. Shortly after arriving in New York

in 1992, he, his wife, and his son

applied for asylum/1 because they were

alarmed by news from Mr. Ambati’s parents

that they were having difficulty with

their crops and that Mr. Ambati’s father

had been attacked and beaten one night

while returning home from the fields.

B. Administrative Proceedings

1.

With the help of an attorney, Mr. Ambati

filed a request for asylum in September

1992 and included his wife and

Pranaykumar in his application. He

alleged that, as Christians, he and his

family had suffered persecution by

Hindus. Responding to an order to show

cause, Mr. Ambati appeared at a

deportation hearing in October 1996

without an attorney. The Immigration

Judge explained in detail the purpose of

the hearing as well as Mr. Ambati’s

rights in the proceedings. The IJ then

asked if the Ambatis planned to retain

counsel to represent them. When Mr.

Ambati replied that they did, the IJ

continued the hearing until May 19, 1997.

The IJ warned Mr. Ambati, however, that

he would grant no further continuances

and urged Mr. Ambati to tell his counsel

that his hearing date would not be

extended.

Mr. Ambati retained counsel two weeks

before his scheduled hearing and informed

her that he previously had retained an

attorney in New York in 1992 to assist

him in filing his application for asylum.

On May 19, Mr. Ambati and Pranaykumar

appeared at the scheduled hearing, and

their newly retained counsel requested a

continuance. Counsel explained that she

had overestimated the New York attorney’s

degree of involvement in the Ambatis’

case; the case had not been prepared for

the hearing, as she had believed, and

thus she did not feel prepared to go

forward. The IJ suggested to counsel that

she could withdraw her notice of

appearance and Mr. Ambati could proceed

pro se. The IJ stated he would go forward

with the hearing because not only had he

granted Mr. Ambati a seven-month

continuance, but also had explained

clearly that no further continuances

would be given. When asked by the IJ if

he wanted the attorney to represent him,

Mr. Ambati stated that he did. During the

course of the hearing, the IJ

specifically asked Mr. Ambati whether he

would leave the United States if ordered

to do so. Mr. Ambati replied, "I beg your

Honor to help me to live here . . .

because of the serious problem which we

are facing."/2 R.137-38.

After considering the evidence,/3 the

IJ concluded that Mr. Ambati’s request

for asylum fell short of establishing

either past persecution or a well-founded

fear of future persecution. The IJ

determined that there was no basis to

find that Mr. Ambati suffered past

persecution because Mr. Ambati freely

practiced his religion, worked in a

government position, and was never

tortured, detained, or threatened on

account of his Christian faith. Moreover,

the IJ reasoned, the economic and

physical hardships experienced by Mr.

Ambati’s father and brothers did not

support Mr. Ambati’s claim for asylum.

Lastly, the IJ opined that Mr. Ambati’s

application for asylum was nothing more

than a mechanism to prolong his stay in

the United States. Consequently, the IJ

denied Mr. Ambati both asylum and

withholding of deportation and ordered

him deported to India. The IJ refused to

allow Mr. Ambati voluntary departure

because he found that Mr. Ambati desired

to remain in the United States "at all

costs." R.71 (internal quotation marks

omitted). As for Pranaykumar, the judge

also denied him both asylum and

withholding of deportation, but granted

him voluntary departure. Finally, the

judge terminated the proceedings

regarding Mrs. Ambati because she had

left the United States before the initial

deportation hearing.

2.

On appeal, the BIA affirmed the IJ’s

decision and adopted his findings and

conclusions insofar as they regarded Mr.

Ambati. In addition, the Board found

that, because Mr. Ambati was allowed

sufficient time to secure an attorney and

prepare his case after the first

continuance had been granted, the IJ did

not abuse his discretion when he refused

to grant Mr. Ambati another continuance.

The BIA reasoned that Mr. Ambati received

due process because he was on notice that

the IJ was unwilling to grant

furthercontinuances and that Mr. Ambati

was able to fully and fairly present his

case. Lastly, the BIA determined that

Pranaykumar’s appeal was untimely because

it had been filed well beyond the filing

deadline of 30 days after the IJ’s

decision. Mr. Ambati now seeks review of

the BIA’s decision.

II

ANALYSIS

Mr. Ambati argues that the BIA

erroneously concluded that his

experiences in India, and those of his

family members, did not amount to

persecution./4 In addition, he contends

that the BIA erred in upholding the IJ’s

decision in light of his due process

challenge. The IJ’s refusal to grant a

continuance, Mr. Ambati reasons, deprived

him of his right to counsel and his right

to present fully his case. Finally, Mr.

Ambati challenges the BIA’s unwillingness

both to overturn the IJ’s denial of

voluntary departure for him and to

consider the merits of Pranaykumar’s

appeal. We address each of these

contentions in turn.

A. Persecution

Mr. Ambati contends that the BIA erred

in denying him asylum because the

evidence established not only that Mr.

Ambati and his family were harassed and

abused, but also that the livelihood of

Mr. Ambati’s parents was impaired on

account of the family’s Christianity. We

review the BIA’s asylum determination

under the substantial evidence test. See

Petrovic v. INS, 198 F.3d 1034, 1037 (7th

Cir. 2000) (quoting Sivaainkaran v. INS,

972 F.2d 161, 163 (7th Cir. 1992)). We

shall disturb the BIA’s findings "only if

the record lacks substantial evidence to

support its factual conclusions." Malek

v. INS, 198 F.3d 1016, 1021 (7th Cir.

2000).

To be considered for asylum, Mr. Ambati

was required to demonstrate that he

qualifies as a refugee. Congress has

given the Attorney General discretion to

grant asylum if an applicant qualifies as

a refugee under 8 U.S.C. sec. 1101(a)

(42)(A). See 8 U.S.C. sec.

1158(b)(1);/5 see also Kaczmarczyk v.

INS, 933 F.2d 588, 593 (7th Cir. 1991).

The Immigration and Nationality Act

defines "refugee" as

any person who is outside any country of

such person’s nationality . . . and who

is unable or unwilling to return to, and

is unable or unwilling to avail himself

or herself of the protection of, that

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 . . . .

8 U.S.C. sec. 1101(a)(42)(A).

Therefore, to prove that he is a refugee

within the meaning of the statute, Mr.

Ambati must come forward with evidence

either of a well-founded fear of future

persecution or of past persecution. See

Marquez v. INS, 105 F.3d 374, 378 (7th

Cir. 1997). If an alien establishes past

persecution, there is a rebuttable

presumption that he also has a well-

founded fear of future persecution and

therefore should be granted asylum. See 8

C.F.R. sec. 208(b); see also Asani v.

INS, 154 F.3d 719, 722 (7th Cir. 1998).

Mr. Ambati bases his asylum claims on

both past persecution and a well-founded

fear of future persecution. We turn first

to Mr. Ambati’s claims of past

persecution.

1.

This court has described persecution as

"punishment or infliction of harm for

political, religious, or other reasons."

Tamas-Mercea v. Reno, 222 F.3d 417, 424

(7th Cir. 2000) (internal quotation marks

and citations omitted). Although the term

"persecution" includes actions less

severe than threats to life or freedom,

"actions must rise above the level of

mere harassment to constitute

persecution." Id. (internal quotation

marks and citations omitted). Mr. Ambati

contends that he established past

persecution through his testimony about

the loss of his family’s economic

livelihood due to physical attacks,

thievery, and economic sabotage by Hindu

neighbors. Mr. Ambati, however,

identified no injury to himself, to his

wife, or to his children. Indeed, while

in India, Mr. Ambati was employed

steadily in a government job and

regularly attended church. He offered no

evidence of any adverse job actions

against him, nor evidence of any physical

attacks upon him resulting from his reli

gious beliefs. Indeed, Mr. Ambati’s

derivative persecution claims are

indistinguishable from those we rejected

in Tamas-Mercea and Bereza v. INS, 115

F.3d 468 (7th Cir. 1997)./6

2.

Mr. Ambati also has failed to establish

that the BIA’s determination with respect

to fear of future persecution is

unsupported by the record. "In order to

be granted asylum on the basis of future

persecution, Mr. [Ambati] must have a

’well-founded’ fear of persecution."

Tamas-Mercea, 222 F.3d at 426. To have a

well-founded fear of persecution, "an

applicant must show both that he

genuinely fears being persecuted and that

his fear is objectively reasonable."

Bereza, 115 F.3d at 472 (citations

omitted); see also Sofinet v. INS, 196

F.3d 742, 746 (7th Cir. 1999). In support

of his claim of future persecution, Mr.

Ambati details the same events and

actions that he put forward to support

his claim of past persecution: the

attacks on his family members and the

loss of the family’s livelihood. However,

as set forth above, Mr. Ambati

historically has not been the target of

such attacks, and he has not come forward

with evidence that circumstances have

changed in India such that he now will be

at risk. Furthermore, Mr. Ambati’s wife

and daughter voluntarily returned to

India nearly five years ago and have

remained there since without incident.

The absence of evidence of harm to Mr.

Ambati’s immediate family undermines his

claim of a well-founded fear of

persecution. See Bhatt v. Reno, 172 F.3d

978, 982 (7th Cir. 1999) (citing Lwin v.

INS, 144 F.3d 505, 509 (7th Cir. 1998)).

Consequently, Mr. Ambati has not come

forward with evidence that his fears are

"objectively reasonable."/7

In addition, the record suggests that

Mr. Ambati’s unwillingness to return to

India stems, at least in part, from his

fear of a diminished earning capacity,

rather than a fear of physical danger to

himself or to his family. Indeed, Mr.

Ambati acknowledges that he "sought the

refuge of safety and better opportunities

to support his extended family by coming

to the United States." Petitioner’s Br.

at 5. However, a diminished earning

capacity, standing alone, cannot support

a grant of asylum. See Borca, 77 F.3d at

216 (stating that economic harm rises to

the level of persecution only if economic

disadvantage is both substantial and

deliberately imposed on account of

person’s affiliation with particular

group or set of beliefs).

In sum, the record supports the BIA’s

conclusion that Mr. Ambati failed to

establish past persecution or a well-

founded fear of future persecution on the

basis of religion. Mr. Ambati’s chief

evidence of persecution concerns his

family members, not himself. Furthermore,

Mr. Ambati’s stress and frustration over

his family’s economic situation and the

antagonism they experience in their

relations with their Hindu neighbors do

not rise to the level of persecution for

purposes of the statute. See Skalak v.

INS, 944 F.2d 364, 364-65 (7th Cir. 1991)

("mild harassment" by itself does not

constitute persecution). Consequently, we

will not disturb the BIA’s asylum

determination.

B. Lack of Due Process

Mr. Ambati also argues that the BIA

erred in upholding the IJ’s decision not

to grant him a second continuance. He

contends that the IJ’s ruling violated

his due process rights because the ruling

prevented his counsel from fully

presenting his claims. By not allowing

his newly hired counsel additional time

to prepare his case, Mr. Ambati

continues, the IJ placed his counsel "in

the position of a passenger on a runaway

bus, helplessly watching [the IJ] shred

her client" on various issues explored

during the hearing. Petitioner’s Br. at

12.

Deportation hearings are civil

proceedings, and asylum-seekers,

therefore, have no Sixth Amendment right

to counsel. See Mojsilovic v. INS, 156

F.3d 743, 748 (7th Cir. 1998). They are

entitled, however, to protection of their

due process rights. The Fifth Amendment’s

due process clause mandates that the

deportation hearing be fundamentally

fair. See Castaneda-Suarez v. INS, 993

F.2d 142, 144 (7th Cir. 1993).

Specifically, the alien should be

afforded the following opportunities: to

exercise his right to counsel of his

choice at his own expense, see 8 U.S.C.

sec. 1362; Batanic v. INS, 12 F.3d 662,

667 (7th Cir. 1993); to reasonably

present his evidence, see Castillo-Perez

v. INS, 212 F.3d 518, 526 (9th Cir.

2000); and to testify, see Mojsilovic,

156 F.3d at 749. To prevail on a due

process claim, a petitioner must produce

"concrete evidence" indicating that the

due process violation "had the potential

for affecting" the outcome of the

hearing. Kuciemba v. INS, 92 F.3d 496,

501 (7th Cir. 1996) (internal quotation

marks and citations omitted).

The record suggests that Mr. Ambati was

allowed a reasonable opportunity to fully

and fairly present his case and,

therefore, that he was not denied due

process. First, Mr. Ambati retained

counsel, offered evidence, and testified,

answering questions posed by his counsel,

by the IJ, and by opposing counsel. See

Jacinto v. INS, 208 F.3d 725, 728-29,

731-32 (9th Cir. 2000) (suggesting that

questioning of alien by the IJ and by

attorneys from both sides along with

opportunity for alien to present

"affirmative testimony" amounts to a

reasonable opportunity for alien to

present her evidence). Second, the IJ

clearly explained to Mr. Ambati his

rights in the hearing and several times

asked questions to clarify and elicit

further testimony from him. See Michel v.

INS, 206 F.3d 253, 259 (2d Cir. 2000)

(finding alien not deprived of right to

counsel because IJ went "well out of his

way" to ensure that alien understood what

was occurring in the hearing). Third, Mr.

Ambati’s hearing had been continued for

seven months to allow him time to retain

counsel and prepare his case. See Ghajar

v. INS, 652 F.2d 1347, 1348-49 (9th Cir.

1991) (finding petitioner had sufficient

time to prepare and upholding denial of

further continuance even though attorney

was hired only a few days before the end

of a one-month continuance)./8 Finally,

Mr. Ambati offers no evidence that the

outcome of the hearing would have been

different had he obtained a continuance.

He has not set forth any evidence that

would have been presented or arguments

that would have been made had his counsel

been given additional time to prepare his

case. Consequently, assuming a due

process violation occurred, Mr. Ambati

has not come forward with evidence that

the violation affected the outcome of the

hearing.

C. Denial of Voluntary Departure

Mr. Ambati next argues that the IJ

wrongly denied him voluntary departure

and that the BIA erred by not correcting

this "arbitrary and capricious" decision.

As noted by the BIA and confirmed by our

review of the record, however, Mr. Ambati

never appealed the denial of voluntary

departure to the BIA. Thus, he has waived

this argument by failing to present it

first to the BIA. See, e.g., Mojsilovic,

156 F.3d at 748 (stating that the court

lacks jurisdiction to consider issues not

first presented to the BIA).

D. Timeliness of Appeal

Finally, Mr. Ambati argues that the BIA

erred when it dismissed Pranaykumar’s

appeal as untimely. He notes that the BIA

plainly considered arguments raised by

Pranaykumar’s appeal when it decided Mr.

Ambati’s case. Although it is unclear why

the BIA chose to acknowledge

Pranaykumar’s arguments in deciding Mr.

Ambati’s appeal, Pranaykumar’s appeal was

clearly untimely. His appeal was filed on

August 4, 1997, nearly two months after

the June 18, 1997 deadline for filing.

See 8 C.F.R. sec. 3.38(b), (c) (2000).

The Ambatis do not challenge the accuracy

of these dates, and, consequently, we see

no basis for reversing the BIA’s

decision.

Conclusion

For the foregoing reasons, the Ambatis’

petition for review is denied, and the

BIA’s decision is affirmed.

AFFIRMED

/1 The Ambatis’ daughter is a United States citizen;

she was born several months after Mr. Ambati

began studying in Chicago.

/2 Mr. Ambati did not specify the problem to which

he referred.

/3 Apart from his own testimony and the statements

in the Ambatis’ applications, Mr. Ambati submit-

ted some documentary evidence: 1) two articles--a

1991 article from a Bombay newspaper reporting

recent attacks on Christians by "toughs" due to

a dispute over water, R.41, and an undated arti-

cle from an unspecified source reporting an

effort by a Hindu organization to bring Chris-

tians who were formerly Hindus back into the

Hindu fold, R.40; and 2) an April 1996 affidavit

from Mr. Ambati’s father confirming attacks on

family members and property, in which he stated

that "Hindu families bore community feelings

against the Christian families[,]" "our living

here has become most miserable[,]" and that,

because "our family is being harassed at our

village[,] it would be better if the case is

considered sympathetically for a green card."

R.158-60. The INS submitted two documents from

the United States Department of State: 1) a May

1997 advisory opinion noting both that there were

no "serious outbreaks of anti-Christian violence

in recent years" and that Christians "have a high

level of acceptance in Indian society," R.153;

and 2) a report on human rights practices in

India for 1995 containing no mention of anti-

Christian activities, R.145-51.

/4 Pranaykumar’s application for asylum is deriva-

tive of his father’s; the outcome of Mr. Ambati’s

case determines the result of Pranaykumar’s case.

See 8 U.S.C. sec. 158(b)(3) (2000); 8 C.F.R. sec.

207.7(a) (2000). Consequently, we address the

substantive claims made in this appeal in terms

of how they relate to Mr. Ambati. The timeliness

of Pranaykumar’s appeal, however, is addressed

after the common, substantive issues.

/5 8 U.S.C. sec. 1158(b)(1) states: "The Attorney

General may grant asylum to an alien who has

applied for asylum in accordance with the re-

quirements and procedures established by the

Attorney General under this section if the Attor-

ney General determines that such alien is a

refugee within the meaning of section

1101(a)(42)(A) of this title."

/6 In those cases, sons of parents who had suffered

persecution under former communist regimes argued

that they should be granted asylum based on the

persecution of their family members. We declined

to recognize the derivative claims in those

circumstances as meriting asylum. In Tamas-

Mercea, for example, we stated:

If Mr. Tamas personally had suffered the type of

harm inflicted on his family members, we would

have little trouble concluding that he had suf-

fered persecution within the meaning of the

statute. Mr. Tamas testified that his father,

grandfather, and uncle were arrested and beaten

for opposing collectivization. As well, his

father was beaten in 1991, when he attempted to

recover his family property. However, Mr. Tamas

does not argue that he was subjected to this type

of treatment. He, instead, claims a type of

derivative persecution, that which arose from the

physical abuse of his family members and the

discrimination he personally endured because of

his family’s opposition to the communist regime.

. . .

Here, as in Bereza, it was Mr. Tamas’ family

members who suffered persecution as a result of

their political beliefs. Although Mr. Tamas did

suffer some economic harm and personal humilia-

tion as a result of his family’s activities, the

circumstances here are not sufficient to estab-

lish his persecution for purposes of the statute.

Tamas-Mercea, 222 F.3d at 424.

/7 Because we find that Mr. Ambati’s fears are not

objectively reasonable, we need not reach the

issue of whether Mr. Ambati’s fears are genuine.

/8 Mr. Ambati gave no reason why he was unable to

retain counsel until two weeks before his hearing

date.