Petition for Writ of Certiorari — Patel v. Mukasey (No. 07-771)

aed: U8.

QO7-7710°°57 2007

ORPIGE OF THE OLERK

emiemnill

N«

IN THE

Supreme Court of the United States

a oer

et

RAKESH PATEL,

Petitioner.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

RAKESH C. PATEL

45-20 Queens Blvd

Sunnyside, NY 11104

(718) 784-2925

Pro-se Petitioner

Wright Appellate Services

" 1% WR OD xi {

QUESTIONS PRESENTED FOR REVIEW

This case presents important issues of law involv-

ing the burden of proof in an immigration matter to

stay removal and prove asylum under the Conven-

tion Against Torture Act. By failing to conduct evi-

dentiary hearings, the Petitioner’s constitutional due

process rights were violated.

Moreover, the decisions below were against public

policy since the courts placed an impermissible bur-

den of proof upon the Petitioner to meet protection

under asylum and the Convention Against Torture.

As the record substantiates, the Petitioner met his

burden of proof that his removal should have been

withheld. Also, he should have been granted asylum

in the United States given the perilous conditions he

faced in India. The fear is real. Instead of applying

the proper standards of asylum, the Third Circuit

and Board of Immigration placed an undue upon an

immigrant, the Petitioner, to seek relief under the

statutes. Such a different standard is against public

policy; a unified standard of proof must be applied.

Thus, the Writ must be granted to address this sali-

ent issue.

A. WHETHER THE THIRD CIR-

CUIT AND BOARD OF IMMI-

GRATION DEVIATED FROM

B.

SUPREME COURT CASES AND

FRACTURED THE LAW OF THE

BURDEN OF PROOF IN RE-

MOVAL CASES AND ASYLUM

UNDER THE CONVENTION

AGAINST TORTURE ACT RE-

SULTING IN A VIOLATION OF

THE CONSTITUTION?

WHETHER THE THIRD CIR-

CUIT AND BOARD OF IMMI-

GRATION RENDERED AN

ARBITRARY DECISION WHEN

IT ERRED IN FAILING TO DE-

TERMINE THAT THE PETI-

TIONER MET HIS BURDEN

UNDER APPLICABLE LAW FOR

HIS WITHHOLDING OF

DEPORTABILITY RESULTING

IN A VIOLATION OF HIS CON-

STITUTIONAL RIGHTS?

>» WHETHER BY DEVIATING

FROM APPLICABLE LAW AND

RENDERING AN ARBITRARY

DECISION, THE THIRD CIR-

CUIT AND BOARD OF IMMI-

GRATION VIOLATED THE

PETITIONER’S CONSTITU

TIONAL RIGHTS BY DENYING

HIM RELIEF UNDER THE CON-

VENTION AGAINST TORTURE?

TABLE OF CONTENTS

Questions Presented ................ eg eeu aias adlgeanee cae i

I I see aca chcaninccatasdonnratinsddaaasacce ee

Th Bune C8 Cd ATO TIEAOS «o.oo sce vices sncccssecdssasenvess. Vv

Opinions Below

Statement of the Basis of Jurisdiction of the

Supreme Court

Constitutional, Statutory and Ordinance

Provisions Involved in this Case

Statement of the Case ....... .

Statement of the Facts.................00... 02000022 ccc cece. 16

Argument In Support of Writ of Certiorari

A. The Third Circuit and Board of Immigration

Deviated From Supreme Court Cases and

Fractured the Law of the Burden of Proof in

Removal Cases and Asylum Under The

Convention Against Torture Act Resulting in

A Violation of the Constitution...................... 19

. The Third Circuit and Board of Immigration

Rendered an Arbitrary Decision When It Erred

in Failing to Determine That the Petitioner Met

His Burden Under Applicable Law For His

Withholding of Deportability Resulting in a

Violation of His Constitutional Rights ....... me

’. By Deviating From Applicable Law and Render-

ing An Arbitrary Decision, The Third Circuit

and Board of Immigration Violated The Peti-

tioner’s Constitutional Rights by Denving Him

Relief under the Convention Against

Torture

Concluston

TABLE OF CITED AUTHORITIES

Cases

Abdille v. Ashcroft. 242 F.3d 477. 492 (3d Cir

2001)

Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d

/

Cir. 2003)

Awolesi v. Ashcroft, 341 F.3d 227 (2003)

Azarte v. Ashcroft, 394 F.3d 1278, 1289

(9° Cir

aires v.

Salasubramanrim v. INS. 148 F 3d 157. 161

(3d Cir. 1998

tlasubramanrim v. INS. 143 F.3d 157. 161 (3d

Cir. 19938)

Bastidas v. INS .609 F.2d 101. 105 (3d Cir

1979)

Cano-Merida v. I.N.S., 311 F.3d 960. 964

2002)

Castro-Nuno v.

Castro-O'Ryan :

(1988)

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778,

¢;. £8: | QRRMRiCeaeeeerenr ee Reto Re Le On ORE 19

Colmenar .v I.N.S., 210 F.3d 967, 971 (9" Cir.

5 RE) Retr eens ict OL Re MeN Dr mfeA RAINS A 25

Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.

ERE R AS care ep A REN PAR ATE Fok ey CORN ol TAO 28, 30

Guo v. Ashcroft, 299 F.3d 266, 272 (3d Cir.

RRR TREE AS RB OA SicsaaCaraubeaasadieeaetienceaianaaeiion 23, 24, 30

Immigration & Naturalization Serv. v. Elias-

Zacarias, 502 U.S .478, 481, 112 S.Ct. 812, 117

L..Fd.2d 38 (1992)...

Inre HH. 211&N. Dec. 337. 348. 1996 WL 291910

a CR oat A ae ee 33

INS v. Cardoza-Fonseca ,480 U.S. 421, 107 S.Ct.

rr Se Bee ee Me 0 OE Pao cae sakes el 34

INS v. Cardoza-Fonseca, 480 U.S. 421, 430, 107

S.Ct. 1207, 94 L. Ed. 2d 434 (1987).................... 23

INS v. Elias-Zacarias, 502 U.S. 478, 112 S.Ct. 812.

aT Fic ee Ie Ce vnc cncrnanccnectcsnncodnsaccsduncsudans 30

INS v. Stevic, 467 U.S. 407, 424, 104 S. Cr. 2489, 81

L.Ed. 2d 321 (1984)...

Kanivets v. Gonzales, 424 F.3d 330 (3" Cir. 2005) 20

Liev Ashcroft, 396 F.3d 530 (3d Cir. 2005). i

A hud

Lusingo v. Gonzales, 420 F.3d 193, 199 (3d Cir.

2005)

Matter of Acosta, 19 1. & N. Dec. 211 (1985)......... 30

Matter of B-, 211 & N Dec. 66 (BIA 1995)

Matter of Burbano, 20 I&N Dec. 872, 874 (BIA

ROG iis inssctksascknctcodeciesanensedianaee jiu

Matter of Cerna, 201 & N Dec. 399 (1991)

Matter of Mogharrabi, 19 I&N Dec. 439 (BIA

Mulanga v. Ashcroft, 349 F.3d 123, 133 (3d Cir.

2003)

Ngure v. Ashcroft, 367 F.3d 975, 991 (8" Cir.

Rios-Berrios v. .N.S., 776 F.2d 859, 862 (9" Cir.

| A tee wee er '

Sewak v. INS,900 F.2d 667, 673 (3d Cir. 1990) .... 26

Sotto v. INS, 748 F.2d 832, 836 (3d Cir. 1984)......35

Tipu v. INS, 20 F.3d 580, 586 (3d Cir. 1994)

Statutes

8 C.F.R

L003 .2(eK 3a

8 C.F.R. § 1208.16(b)(1)

8 C.F.R. § 1231(bX3\A)

8 C.F.R. § 208.13

8 C.F.R. § 208.13(b2Xi

8 U.S.C. § 1101(aX42KA

8 U.S.C. § 1158

8 U.S.C. § 1227(aX 1B

8 U.S.C. § 1231(b)3)

8 U.S.C. § 123 1(0bK3KA

8 U.S.C. § 241 (bMS

8 U.S.C.S. § 1201

8 U.S.C.S. § 1225

28 U.S.C. § 224]

42U S.C. § 1101

Other Authorities

US.C.A (‘onst A ms: nad

APPENDIX

Appendix A — Sur Petition for Panel Hearing,

dated October 10, 2007

Appendix B — Judgment, dated September 17.

2007...

Appendix C — Opinion of the Court

Appendix D —Decision of the Board of Immigration

Appeals, dated September 27, 2006 Sy

Appendix E — Decision of the Board of Immigration

Appeals, dated June 22, 2006 laa se. 19a

Appendix F — Decision on Motion to Reopen,

dated December 15, 2006

Appendix G - Orders

Appendix H — U.S. Department of Labor

Employment and Training Administration

Letter, dated July 11, 2007

Appendix I — Notice of Action

OPINIONS BELOW

On August 10, 2005, the Immigration Judge

granted the Petitioner’s request to voluntarily depart

the United States within 120 days that was Decem-

ber 8, 2005. (Appendix F). Thereafter the Petitioner

requested that his proceedings be reopened, but was

denied relief on December 15, 2005. (Appendix F).

The Board of Immigration Appeals affirmed the

Immigration Judge’s decision on June 22, 2006. (Ap-

pendix E)

The Board of Immigration Appeals denied the Pe-

titioner’s Motion to Reopen and Reconsider on Sep-

tember 27, 2006. (Appendix D).

On July 11, 2007, the Petitioner received notice

that his “Form ETA” had been certified and that he

may file a I-140 Petition with the Citizenship and

Immigration Services. (Appendix F). As of today, no

decision has been rendered with respect to his I-140

even though it had been filed on July 24, 2007.

On September 17, 2007, the Third Circuit issued

an Opinion affirming the Board of Immigration’s de-

cision. (Appendix B). The Petitioner filed a Petition

for Rehearing which was denied on October 10, 2007.

(Appendix A)

STATEMENT OF THE BASIS OF

JURISDICTION

OF THE SUPREME COURT

The statutory provision for this Court’s jurisdic-

tion is 28 U.S.C. Section 1254. The United States

Court of Appeals for the Third Circuit issued its final

decision on September 17, 2007. (Appendix B). The

Petitioner’s Petition for Rehearing was denied on Oc-

tober 10, 2007. (Appendix A). This Petition was

timely filed.

CONSTITUTIONAL, STATUTORY AND

ORDINANCE PROVISIONS INVOLVED IN

THIS CASE

CONSTITUTIONAL PROVISIONS

Fifth Amendment, United States Constitution:

The Due Process Clause of the Fifth

Amendment provides that no State "shall ...

deprive any person of life, liberty, or prop-

erty, without duc process of law...."

STATUTORY PROVISIONS

.

8 U.S.C. §1227(a)(1)(B)

Deportable aliens

(a) Classes of deportable aliens. Any alien (including

an alien crewman) in and admitted to the United

States shall, upon the order of the Attorney General,

be removed if the alien is within one or more of the

following classes of deportable aliens:

(1) Inadmissible at time of entry or of adjustment

of status or violates status...

(B) Present in violation of law. Any alien who is

present in the United States in violation of this Act

or any other law of the United States, or whose non

immigrant visa (or other documentation authorizing

admission into the United States as a nonimmti-

grant) has been revoked under section 221(i) [8

USCS § 1201(1)J, is deportable

8 U.S.C. $1158

Asylum

(a) Authority to apply tor asylum.

(1) In general. Any alien who ts physically present

in the United States or who arrives in the United

States (whether or not at a designated port of arrival

and including an alien who is brought to the United

4

States after having been interdicted in _inter-

national or United States waters), irrespective of

such alien's status, may apply for asylum in accor-

dance with this section or, where applicable, section

235(b) [IS USCS §1225].

(2) Exceptions.

(A) Safe third country. Paragraph (1) shall not ap-

ply to an alien if the Attorney Gencral determines

that the alien may be removed, pursuant to a bilat-

eral or multilateral agreement, to a country (other

than the country of the alien's nationality or, in the

case of an alien having no nationality, the country of

the alien's last habitual residence) in which the

alien's life or freedom would not be threatened on

account of race, religion, nationality, membership in

a particular social group, or political opinion, and

where the alien would have access to a full and fair

procedure for determining a claim to asylum or

equivalent temporary protection, unless the Attor-

ney General finds that it is in the public interest for

the alien to receive asylum in the United States.

(B) Time limit. Subject to subparagraph (D),

paragraph (1) shall not apply to an alien unless the

alien demonstrates by clear and convincing evidence

that the application has been filed within 1 year af-

ter the date of the alien's arrival in the United

States.

(C) Previous asylum applications. Subject to sub-

paragraph (D), paragraph (1) shall not apply to an

alien if the alien has previously applied for asylum

and had such application denied.

(D) Changed circumstances. An application for

asylum of an alien may be considered, notwithstand-

ing subparagraphs (B) and (C), if the alien demon-

strates to the satisfaction of the Attorney General

either the existence of changed circumstances which

materially affect the applicant's eligibility for asylum

or extraordinary circumstances relating to the delay

in filing an application within the period specified in

subparagraph (B).

8 C.F.R. §1208.16(b)(1).

Withholding of removal under section 241(b)(3)(B)

of the Act and withholding of removal under the

Convention Against Torture.

(a) Consideration of application for withholding of

removal. An asylum officer shall not decide whether

the exclusion, deportation, or removal of an alien to

a country where the alien's life or freedom would be

threatened must be withheld, except in the case of

an alien who is otherwise eligible for asylum but is

precluded from being granted such status due solely

to section 207(a)(5) of the Act. In exclusion, deporta-

tion, or removal proceedings, an immigration judge

may adjudicate both an asylum claim and a request

for withholding of removal whether or not asylum

granted.

(b) Eligibility for withholding of removal under

section 241(b)\(3) of the Act; burden of proof. The

burden of proof is on the applicant for withholding of

removal under section 241(b)\(3) of the Act to estab-

lish that his or her life or freedom would be threat-

ened in the proposed country of removal on account

of race, religion, nationality, membership in a par-

ticular social group, or political opinion. The testi-

mony of the applicant, if credible, may be sufficient

to sustain the burden of proof without corroboration.

The evidence shall be evaluated as follows:

(1) Past threat to life or freedom. (i) If the ap-

plicant is determined to have suffered past perse-

cution in the proposed country of removal on

account of race, religion, nationality, membership

in a particular social group, or political opinion, it

shall be presumed that the applicant's life or free

dom would be threatened in the future in the

country of removal on the basis of the original

claim. This presumption may be rebutted if an

asylum officer or immigration judge finds by a

preponderance of the evidence:

(A) There has been a fundamental change in circum-

stances such that the applicant's life or freedom

would not be threatened on account of any of the five

grounds mentioned in this paragraph upon the ap-

plicant’s removal to that country; or

(B) The applicant could avoid a future threat to his

or her life or freedom by relocating to another part of

the proposed country of removal and, under all the

circumstances, it would be reasonable to expect the

applicant to do so.

(11) In cases in which the applicant has established

past persecution, the Service shall bear the burden

of establishing by a preponderance of the evidence

the requirements of paragraphs (b)(1)(i)A) or

(b)(1)G)(B) of this section.

(11) If the applicant's fear of future threat to hfe or

freedom is unrelated to the past persecution, the ap-

plicant bears the burden of establishing that it is

more likely than not that he or she would suffer such

harm.

(2) Future threat to life or freedom. An applicant

who has not suffered past persecution may demon-

strate that his or her life or freedom would be

threatened in the future in a country if he or she can

establish that it is more likely than not that he or

she would be persecuted on account of race, religion,

nationality, membership in a particular social group,

or political opinion upon removal to that country.

Such an applicant cannot demonstrate that his or

her life or freedom would be threatened if the asy-

lum officer or immigration judge finds that the ap-

plicant could avoid a future threat to his or her life

or freedom by relocating to another part of the pro

posed country of removal and, under all the circum-

stances, it would be reasonable to expect the appli-

cant to do so. In evaluating whether it is more likely

than not that the applicant's life or freedom would be

threatened in a particular country on account of

race, religion, nationality, membership in a particu-

lar social group, or political opinion, the asylum offi-

cer or immigration judge shall not require the

applicant to provide evidence that he or she would be

singled out individually for such persecution if:

(i) The applicant establishes that in that country

there is a pattern or practice of persecution of a

group of persons similarly situated to the appli-

cant on account of race, religion, nationality,

membership in a particular social group, or politt-

cal opinion; and

Gi) The applicant establishes his or her own inclu-

sion in and identification with such group of per-

sons such that it is more likely than not that his or

her life or freedom would be threatened upon re-

turn to that country.

(3) Reasonableness of internal relocation. For pur-

poses of determinations under paragraphs (b)(1)

and (b)(2) of this section, adjudicators should con-

sider, among other things, whether the applicant

would face other serious harm in the place of sug-

gested relocation; any ongoing civil strife within

the country; administrative, economic, or judicial

infrastructure; geographical limitations; and social

and cultural constraints, such as age, gender,

health, and social and familial ties. These factors

may or may not be relevant, depending on all the

circumstances of the case, and are not necessarily

determinative of whether it would be reasonable

for the applicant to relocate.

(i) In cases in which the applicant has not estab-

lished past persecution, the applicant shall bear

the burden of establishing that it would not be

reasonable for him or her to relocate, unless the

persecutor is a government or is government-

sponsored.

(ii) In cases in which the persecutor is a govern-

ment or is government-sponsored, or the applicant

has established persecution in the past, it shall be

presumed that internal relocation would not be

reasonable, unless the Service establishes by a

preponderance of the evidence that under all the

circumstances it would be reasonable for the ap-

plicant to relocate.

(c) Elignbility for withholding of removal under the

Convention Against Torture.

(1) For purposes of regulations under Title HII of

the Act, "Convention Against Torture" shall refer

to the United Nations Convention Against Torture

and Other Cruel, Inhuman or Degrading Treat-

ment or Punishment, subject to any reservations,

understandings, declarations, and provisos con-

tained in the United States Senate resolution of

ratification of the Convention, as implemented by

section 2242 of the Foreign Affairs Reform and Re-

structuring Act of 1998 (Pub. L. 105-277, 112 Stat.

2681, 2681-821). The definition of torture con-

tained in §1208.18(a) of this part shall govern all

decisions made under regulations under Title II of

the Act about the applicability of Article 3 of the

Convention Against Torture.

(2) The burden of proof is on the applicant for

withholding of removal under this paragraph to

establish that it is more likely than not that he or

she would be tortured if removed to the proposed

country of removal. The testimony of the appli-

cant, if credible, may be sufficient to sustain the

burden of proof without corroboration.

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

that an applicant would be tortured in the pro-

posed country of removal, all evidence relevant to

the possibility of future torture shall be consid

ered, including, but not limited to:

(i) Evidence of past torture inflicted upon the ap

plicant:

(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;

(ii) Evidence of gross, flagrant or mass violations

of human rights within the country of removal,

where applicable; and

(iv) Other relevant information regarding condi-

tions in the country of removal.

(4) In considering an application for withholding of

removal under the Convention Against Torture,

the immigration judge shall first determine

whether the alien is more likely than not to be tor-

tured in the country of removal. If the immigration

judge determines that the alien is more likely than

not to be tortured in the country of removal, the

alien is entitled to protection under the Conven-

tion Against Torture. Protection under the Con-

vention Against Torture will be granted either in

the form of withholding of removal or in the form

of deferral of removal. An alien entitled to such

protection shall be granted withholding of removal

unless the alien is subject to mandatory denial of

withholding of removal under paragraphs (d)(2) or

(dX3) of this section. If an alien entitled to such

protection is subject to mandatory denial of with-

holding of removal under paragraphs (d)(2) or

(d\(3) of this section, the alien's removal shall be

deferred under §1208.17(a).

(d) Approval or denial of application. (1) General.

Subject to paragraphs (dX 2) and (d\3) of this sec-

tion, an application for withholding of deportation

or removal to a country of proposed removal shall

be granted if the applicant's eligibility for with

holding is established pursuant to paragraphs (b)

or (c) of this section.

(2) Mandatory denials. Except as provided in

paragraph (d)(3) of this section, an application for

withholding of removal under section 241(b)(3) of

the Act or under the Convention Against Torture

shall be denied if the applicant falls within section

241(b\(3)(B) of the Act or, for applications for with-

holding of deportation adjudicated in proceedings

commenced prior to April 1, 1997, within section

243(h)\(2) of the Act as it appeared prior to that

date. For purposes of section 241(b)(3)(B)(it) of the

Act, or section 243(h)(2)(B) of the Act as it ap-

peared prior to April 1, 1997, an alien who has

been convicted of a particularly serious crime shall

be considered to constitute a danger to the com-

munity. If the evidence indicates the applicability

of one or more of the grounds for denial of with-

holding enumerated in the Act, the applicant shall

have the burden of proving by a preponderance of

the evidence that such grounds do not apply.

8 U.S.C. $1231 (b)(3)(A).

Countries to which aliens may be removed...

(3) Restriction on removal to a country where alien's

life or freedom would be threatened.

(A) In general. Notwithstanding paragraphs (1

and (2), the Attorney General may not remove an

alien to a country if the Attorney General decide:

that the alien's life or freedom would be threatened

)

in that country because of the alien's race, religion,

nationality, membership in a particular social group,

or political opinion

STATEMENT OF THE CASE

Procedural History

Rakesh Patel. the Petitioner. entered the United

States in February 2000 as a non-immigrant tempo-

rary worker

In October 2004, the Petitioner was charged as be-

ing removable for having overstayed his admission

period pursuant to the Immigration and Nationality

Act §237(a)1)(B).

After a hearing on August 10, 2005, the Immigra-

tion Judge granted the Petitioner's request to volun-

tarily depart the United States within 120 days

Thereafter, on December 2, 2005, the Petitioner re-

quested that his proceedings be reopened, based in

part, of his pending application for Canadian resi-

dency. The Immigration Judge denied the motion al-

leging that the Petitioner did not meet his burden of

proof to reopen a case and that it was untimely

The Board of Immigration Appeals (the “Board”)

affirmed the Immigration Judge’s decision on June

22, 2006. The Petitioner then filed a Motion to Re-

open and Reconsider with the Board stating that the

conditions in India changed and that the Immigra-

tion Judge erred because his motion was timely filed

before his voluntary departure period expired. The

L5

Petitioner sought asylum based on changed coun-

try conditions in India.

The Board denied the Petitioner’s motions on Sep-

tember 27, 2006. On October 26, 2006, the Peti-

tioner filed a habeas corpus petition pursuant to 28

U.S.C. §2241 in the United States District Court for

the District of New Jersey, which was then trans-

ferred to the Third Circuit Court of Appeals.

Meanwhile, while the case was pending before the

Third Circuit, on July 11, 2007, the Petitioner re-

ceived notice that his “Form ETA” had been certified

and that he may file a I-140 Petition with the Citi-

zenship and Immigration Services. (16a). As of to-

day, no decision has been rendered with respect to

his I-140 even though it had been filed on July 24,

2007.

On September 17, 2007, the Third Circuit issued

an Opinion denying the Petitioner relief. The Peti-

tioner sought a rehearing which was denied on Octo-

ber 10, 2007.

Therefore, given the constitutional and public pol-

icy issues involved in this case, the Petitioner files

this Writ and seeks relief

16

STATEMENT OF FACTS

The Petitioner entered the United States in New

York in February 2000 as a non-immigrant tempo-

rary worker. Pursuant to the H1B-Visa, the Peti-

tioner was authorized to remain in the United States

until June 1, 2001.

While in the United States, the Petitioner lived

with his uncle and aunt and cousins; they were all

United States citizens. The Petitioner submitted

evidence that the Petitioner’s aunt was ill with kid-

ney failure, his uncle suffered from congenital heart

condition, and his cousin was physically and men-

tally handicapped. The Petitioner was needed both

financially and physically to assist in his extended

family’s well-being.

When the Pctitioner first entered the country, he

was working for Compro Services Inc. Unfortu-

nately, the employer dissolved. However, one of the

owners of the company continued to operate and

paid the Petitioner in cash. During his lawful stay

in the United States, the Petitioner’s working visa

was extended to 2004 and then 2006.

Shortly thereafter, Immigration Services invaded

the company and arrested everyone with an H1B-

Via, even though the Petitioner was lawfully em-

ployed and working. While in the United States, the

Petitioner married and had a son. The Petitioner’s

family and friends in India did not accept the Peti-

tioner’s wife since she was not of the right status and

contrary to his family’s social and religious beliefs.

In October 2004, the Petitioner was charged as be-

ing removable for having overstayed his admission

period pursuant to the Immigration and Nationality

Act §237(a)(1)(B).

At the hearing, the Petitioner provided evidence

that he was secking residency in Canada and that

his application was pending. The application was

submitted in June 2002. However, the Petitioner

could not complete his application because the De-

partment of Homeland retained his passport and he

could not attend the mandatory interview in Canada

on April 19, 2005.

After the Immigration Judge allowed the Peti-

tioner to voluntarily depart from the United States

within 120 days, the Petitioner sought removal and

reconsideration prior to his departure given the de-

lay in his Canadian application and the perlous

condition of his native land in India. The Petitioner

submitted twenty-three exhibits of train bombings,

other bombings, terrorist acts of Islamist militants,

and other perilous conditions. The Petitioner testi-

fied that he was afraid to return to his hometown in

Ahmedabad India due to the tension and violence

between the communal groups there.

18

Moreover, given his unacceptable marriage, the

Petitioner, his wife and his son were in personal

danger from: family and friends for violating social

rules.

The Petitioner refers to the Procedural History for

a further explanation of the facts of the case.

ARGUMENT IN SUPPORT OF WRIT OF

CERTIOARI

A. THE THIRD CIRCUIT AND BOARD

OF IMMIGRATION DEVIATED FROM

SUPREME COURT CASES AND

FRACTURED THE LAW OF THE

BURDEN OF PROOF IN REMOVAL

CASES AND ASYLUM UNDER THE

CONVENTION AGAINST TORTURE

ACT RESULTING IN A VIOLATION

OF THE CONSTITUTION.

Introduction

This Court must grant this Petition for Writ for

Certiorari since the previous decisions misinter-

preted the INA, and rendered decisions that were

“arbitrary, capricious or manifestly contrary to stat-

ute." Chevron U.S.A. Inc. v. Natural Resources De-

fense Council. Inc. 467 U.S. 837, 844, 104 S.Ct. 2778,

2782 (1984). The Petitioner states that such arbi-

trary decisions were a violation of his due process

rights. The Petitioner was entitled to protection un-

der the Constitution. The Third Circuit and Board

of Immigration infringed upon that protection

THE THIRD CIRCUIT AND

BOARD OF IMMIGRATION

RENDERED AN ARBITRARY

DECISION WHEN IT ERRED

IN FAILING TO DETERMINE

THAT THE PETITIONER

MET HIS BURDEN UNDER

APPLICABLE LAW FOR HIS

WITHHOLDING OF

DEPORTABILITY RESULT-

ING IN A VIOLATION OF HIS

CONSTITUTIONAL RIGHTS.

The Third Circuit and Board of Immigration

wrongfully denied the Petitioner’s withholding of

removal and petition for rehearing.

First, the Petitioner’s motion to reopen was timely

filed. A motion to reopen is valid as long as a peti-

tioner filed the motion to reopen and request for a

stay of removal within the voluntary departure pe-

riod. See Azarte v. Ashcroft, 394 F.3df 1278, 1289

(9th Cir. 2005); Kanivets v. Gonzales, 424 F.3d 330

(3 Cir. 2005). It is undisputed that the motion was

filed prior to the Petitioner’s 120 period. The motion

was wrongfully denied upon a technicality issue and

the Petitioner was denied to an evidentiary hearing

based on the merits of his motion.

Also, contrary to the Respondent’s allegation, the

Petitioner was authorized to remain in the United

States until 2006, not 2004. He was not overstayed.

His admission in this country was valid pursuant to

the Immigration and Nationality Act (“INA”)

§237(a)(1)(B), 8 U.S.C. §1227(a)(1)(B).

The Petitioner did properly file a Motion to Re-

open. Pursuant to 8 C.F.R. §1003.2(c)(3\ii), an alien

may file a motion to reopen within ninety days of a

“final decision where an alien files a motion to re-

open “to apply or reapply for asylum or withholding

of deportation based on changed circumstances aris-

ing in the country of nationality...if such evidence is

material and was not available and could not have

been discovered or presented at the previous hear-

ing.” A motion to reopen seeks to reopen proceedings

so that new evidence can be presented and a new de-

cision entered on a different factual record, normally

after a further evidentiary hearing. Matter of Cerna,

20 I&N Dec. 399 (1991). Since the Petitioner was

appealing the orders, there was no final decision.

Furthermore, the Petitioner did not file the motion

within the voluntary departure period. Changed cir-

cumstances discovered during that period justified

the Petitioner’s time of filing his motion. To deny

relief, the Third Circuit, Immigration Judge and

Board failed to appreciate the appellate process and

failed to review the merits of the Petitioner's motion

and appeal. Public policy mandates that any

22

alleged technicality defect does not justify

the Petitioner being returned to India where he will

be persecuted by the militia, guerillas, and family.

Moreover, the Petitioner was wrongfully denied an

evidentiary hearing based on the new evidence.

Cerna, supra. The Third Circuit accepted the Board

of Appeals and Immigration Judge’s decision to deny

an evidentiary hearing based upon an alleged tech-

nicality issue. The Petitioner timely filed his motion

and had meritorious issues that required an eviden-

tiary hearing. To deny the hearing was a violation of

the Petitioner’s due process rights.

Second, to be eligible for withholding of removal

under Section 208 of the INA, 8 U.S.C. §1158, the

applicant must demonstrate "persecution or a well-

founded fear of persecution on account of race, relig-

ion, nationality, membership in a particular social

group, or political opinion[.]". See 8 USC.

§1101(a)(42)(A); §241(b)\(3)_of the INA, 8 U.S.C.

§1231(b)(3). In Lie v. Ashcroft, 396 F.3d 530 (3d Cir.

2005), we explained that persecution is limited to

"threats to life, confinement, torture, and economic

restrictions so severe that they constitute a threat to

life or freedom.” Jd. at 536.

To establish a well-founded fear of persecution, the

petitioner must demonstrate through credible testi-

mony that his or her fear is genuine and that, objec-

tively, “a reasonable person in_ the alien's

circumstances would fear persecution if returned to

23

the country in question." Jd. In order to show the

requisite clear probability of future persecution, the

applicant must prove that the persecution is more

likely than not to occur. INS v. Cardoza-Fonseca,

480 U.S. 421, 430, 107 S. Ct. 1207, 94 L. Ed. 2d 434

(1987).

The Petitioner attempted to establish eligibility for

withholding of removal through proof of past perse-

cution, which would entitle him to a rebuttable pre-

sumption that he would be subject to future

persecution. 8 C.F.R. §1208.16(b)(1). In order to con-

stitute persecution, the past incidents must have

been committed by the government or by forces that

the government is either unable or unwilling to con-

trol. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.

2002). The Petition submitted provided evidence of

the political turmoil in his native land as well as his

marriage to his wife that was against family and so-

cial policies. The past acts predicted that his future

in India, not only of his life but his wife and child’s

lives, would be in constant fear.

An applicant has the burden of establishing eligi-

bility for withholding of removal and relief under the

United Nations Convention Against Torture by his

or her own credible testimony. Mulanga v. Ashcroft,

349 F.3d 123, 133 (3d Cir. 2003) (citing 8 CFR.

§208.13, 208.16).

A well-founded fear of future persecution is shown

by establishing a subjectively genuine and object-

24

tively reasonable fear of persecution. See Gao_v.

Ashcroft, 299 F.3d 266, 273 (3d Cir. 2002). The sub-

jective component is met where the applicant gives

credible testimony establishing a genuine fear of

persecution. Lusingo v. Gonzales, 420 F.3d 193, 199

(3d_Cir. 2005). The objective component, however,

requires "credible, persuasive, and specific” evidence

reasonably supporting that subjectively genuine

fear. Id.

The Petitioner submitted substantial evidence

that he had a reasonable fear of being persecuted if

he returned to India. He provided substantial and

credible evidence that there were railways bombings

that led to increased communal tensions and riots in

his hometown of Ahmedabad. The bombings were

carried out by an Islamist militant organization op-

posed to Indian rule in Kashmir. Contrary to the

Third Circuit’s decision, these bombings were not

generalized lawlessness and violence between di-

verse populations. See Abdille v. Ashcroft, 242 F.3d

477, 492-492 (3™ Cir. 2001). Under the substantial

evidence standard, findings can be reversed only if

the evidence presented was such that a reasonable

factfinder would have to conclude that the requisite

fear of persecution existed. Immigration & Natu-

ralization Serv. v. Elias-Zacarias, 502 U.S. 478, 481,

112 S. Ct. 812, 117 L. Ed. 2d 38 (1992).

An adverse credibility finding under the substan-

tial evidence standard, meaning that we will uphold

25

the Immigration Judge's findings “to the extent

that they are 'supported by reasonable, substantial,

and probative evidence on the record considered as a

whole." Balasubramanrim v. INS, 143 F.3d 157, 161

(3d_Cir.1998). An adverse credibility finding should

be supported by specific, cogent reasons for disbeliev-

ing the petitioner's testimony. Id. at 161-162.

By rendering an arbitrary and capricious decision

not based on substantial evidence and in deviation of

the applicable burdens of proof. As such, the Pcti-

tioner’s constitutional rights were violated.

The Fifth Amendment of the United States Consti-

tution guarantees due process rights for aliens dur-

ing hearings, Baires v. I.N.S., 856 F.2d 89 (1988),

citing, Rios-Berrios v. I.N.S., 776 F.2d 859, 862 (9"

Cir. 1985), including deportation and removal pro-

ceedings. Reno v. Flores, 507 U.S. 292, 306, 113

5.Ct. 1439 (1993). Due process requires that a peti-

tioner receive a “full and fair hearing of his claims

and a reasonable opportunity to present evidence on

his behalf.” Cano-Merida v. I.N.S., 311 F.3d S€0,

964 (9" Cir. 2002), quoting, Colmenar v. ILN.S., 210

F.3d 967, 971 (9" Cir. 2000). In reviewing a decision

of the Board of Immigration Appeals in an immigra-

tion proceeding, the question for due process pur-

poses is simply whether the Board made an

individualized determination. U.S.C.A.

Const.Amend. 5; Awolesi, supra. In our facts, the

Board failed to meet its obligations under the consti-

tution, thereby,

justifying ~ reversal of the removal order. The Peti-

tioner was entitled to an evidentiary hearing based

on his fear of persecution to support his claim of

withdrawal of removal as well as his claim under the

Convention Against Torture. However, no hearing

was ever conducted.

Where the record is insufficient to show whether

an alien's due process rights have been violated, a

remand is appropriate. "As an Appellate Court we do

not take testimony, hear evidence or determine dis-

puted facts in the first instance. Instead, we rely

upon a record developed in those for that do take evi-

dence and find facts.” Sewak v. INS, 900 F.2d 667,

673 (3d Cir. 1990). In our facts, the decisions below

must be vacated so that an appropriate hearing

could be conducted. To deny the writ would be

against the constitution and public policy.

Aliens are entitled by statute and regulation to

certain specified procedural protections. Rios-

Berrios at 862. Aliens are guaranteed a reasonable

opportunity to present evidence in their own behalf.

8 U.S.C. §1252(b)\ 1982); 8 C.F.R. §242.16(a)(1988).

Denial of the statutory mghts may constitute an

abuse of discretion requiring remand. Castro

O’Ryan v. INS, 847 F.2d 1307, 1312 (1988); Castro-

Nuno v. INS, 577 F.2d 577, 578-79 (9" Cir. 1978).

To further infringe upon his constitutional nghts

and against public policy, the only option that has

been given to the Petitioner is “voluntary departure”.

However, the Courts have refused to recognize that

on July 11, 2007, the Petitioner received notice that

his “Form ETA” had been certified and that he may

file a I-140 Petition with the Citizenship and Immi-

gration Services. As of today, no decision has been

rendered with respect to his I-140 even though it had

been filed on July 24, 2007. The Petitioner's status

with the I-140 would have a direct impact upon the

current case before this Honorable Court. It is un-

conscionable that the Petitioner may have to be re-

moved even though his I-140 application, if granted,

would allow him to remain in the United States.

Therefore, the Third Circuit and Board Of Immi-

gration rendered an arbitrary decision contrary to

the substantial evidence. The Petitioner met his

burden of proof of withholding of removal due to the

likelihood of persecution upon his return to India

B. BY DEVIATING FROM AP-

PLICABLE LAW AND RENDERING

AN ARBITRARY DECISION, THE

THIRD CIRCUIT AND BOARD OF

IMMIGRATION VIOLATED THE

PETITIONER’S CONSTITUTIONAL,

RIGHTS BY DENYING HIM RE-

LIEF UNDER THE CONVENTION

AGAINST TORTURE.

By misapplying the standard of proofs resulting in

a violation of his constitutional rights, the Peti-

tioner’s Petition to Withhold Removal based upon

the United Nations Convention Against Torture

(“CAT”) was wrongfully denied. For relief under the

CAT, the Petitioner must prove that it is "more

likely than not that he...would be tortured if re-

moved to the proposed country of removal", 8 C.F.R.

§208.16(c2), or more likely than not that, if re-

moved, he would be tortured "by or at the instigation

of or with the consent or acquiescence of a public of-

ficial or other person acting in an official capacity." 8

C.F.R. §208.18.

In order to gain withholding of removal under 8

U.S.C.81231(bX 3A), the Petitioners must prove

that there is a “clear probability" that they will be

persecuted if they are removed to Colombia. INS uv.

Stevic, 467 U.S. 407, 424, 104 S. Ct. 2489, 81 L. Ed.

2d_ 321 (1984). "The question under that standard is

whether it is more likely than not that the alien

would be subject to persecution." Jd. "Persecution"

requires “threats to life, confinement, torture, and

economic restrictions so severe that they constitute a

threat to life or freedom." Fatin v. INS, 12 F.3d 1233,

1240 (3d Cir. 1993). The persecution had to be “sys-

tematic, pervasive, or organized.” Ngure_v. Ashcroft,

367 F.3d 975, 991 (8th Cir. 2004)). Furthermore, the

29

pattern or practice hasto be "committed by the

Government or forces the Government is either 'un-

able or unwilling’ to control." Abdulrahman_v.

Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003).

The Petitioner submitted overwhelming evidence

that his fear of persecution was real in India. He

submitted twenty-three exhibits of communal vio-

lence, the denial of justice, the danger of train and

other blasts, human trafficking, militia, political

turmoil, and religious turmoil in his area. The

overwhelming evidence of a danger should have been

accepted the Board and Third Circuit. Obviously,

the government in India has failed to control the real

danger that would be presented to the Petitioner.

Furthermore, the Petitioner testified that since he

did not marry per his family’s order that his and his

wife’s and child’s lives were in danger from family

and religious groups. If forced to return to India, the

Petitioner and his family would be persecuted.

“The Attorney General may not remove an alien to a

country if the Attorney Gencral decides that the

alien’s life or freedom would be threatened in that

country because of the alien’s race, religion, nation-

ality, member in a particular social group, or politi-

cal opinion.” 8 U.S.C. §1231(b\ 3A). The Petitioner

submitted substantial evidence that the Petitioner

and his family’s lives would be threatened since he

did not marry per the rules of his race

30

and social group and _ that there was extreme

political unrest in the area.

In Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), this

Court adopted the definition of “particular social

group" originally set forth in Matter of Acosta, 19 I.

& N. Dec. 211 (1985), and determined that "[t}he

shared characteristic [binding the ‘social group’)

might be an innate one such as sex, «olor, or kinship

ties, or 1n some circumstances it mig®t be a shared

past experience such as former military leadership

or land ownership. . . . However, whatever the com-

mon characteristic that defines the group, it must be

one that the members of the group either cannot

change, or should not be required to change because

it is fundamental to their individual identities or

consciences." Fatin, 12 F.3d at 1239-40.

An asylum aprlicant bears the burden of support-

ing his claim through credible testimony. Gao_uv.

Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). We review

an adverse credibility finding under the substantial

evidence standard, meaning that we will uphold the

Immigration Judge's findings “to the extent that

they are ‘supported by reasonable, substantial, and

probative evidence on the record considered as a

whole."' Balasubramanrim v. INS, 143 F.3d 157, 161

(3d _ Cir.1998) (quoting INS v. Elias-Zacarias, 502

U.S. 478, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).

The Petitioner met his burden of proof by substan-

tial and credible evidence that there was 2 strony

31

likelihood that he would be persecuted, harassed

and threatened upon his return to India. An adverse

credibility finding should be supported by specific,

cogent reasons for disbelieving the petitioner's tes-

timony. /d. at 161-162. In our facts, there was no

detailed opinion to discredit the Petitioner’s allega-

tions.

As the Petitioner outlined above, by misapplying

the burden of proof, the Third Circuit and Board of

Immigration applied an arbitrary standard to meet

the criteria for asylum resulting in the violation of

the Petitioner’s constitutional rights. Section 208 of

the Immigration and Nationality Act ("INA"), 8

U.S.C. §1158, confers on the Attorney General dis-

cretion to grant asylum to an alien who is a "refu-

gee." For the purposes of the INA, a refugee is a

person who is “unable or unwilling" to return home

"because of persecution or a well-founded fear of per-

secution on account of race, religion, nationality,

membership tn a particular social group, or political

opinion.” 8 U.S.C. § 1101(a)(42)(A).

In order to demonstrate a well-founded fear of per-

secution, an applicant must satisfy three require-

ments: (1) he has a fear of persecution in his native

country; (2) there is a reasonable possibility of suf-

fering such persecution upon return to that country;

and (3) he is unwilling to return to that country as a

result of his fear. 8 C.F.R. §208.13(b)(2)Q). A finding

that the applicant has suffered persecution in the

32

past results in a presumption that he has a well-

founded fear of future persecution. 8 C.F.R.

§208.13(b)(1). The Government then bears the bur-

den of demonstrating either (1) a fundamental

change in circumstances such that the applicant no

longer has a well-founded fear of persecution, or (2)

that the applicant could avoid future persecution by

"relocating" within his country. 8 C.F.R.

§208.13(b)(1)Gi). Even though the Petitioner met his

burden of proof, when the burden shifted to the gov-

ernment, there was a lack of defense to support re-

moval. Still, relief was denied.

Finally, an applicant may be granted asylum in

the absence of a well-founded fear of persecution if

he shows "compelling reasons for being unwilling or

unable to return to the country" based on the sever-

ity of the past persecution, or "a reasonable possibil-

ity" that he may suffer other serious harm upon

repatriation. 8 C.F.R. §208.13(b)(D)Gii)(A), (B). The

Petitioner argued in light of the Board's finding that

the presumption of well-founded fear was rebutted, 8

C.F.R. § 208.13(b))Gn)(A-B) required it to permit

him to demonstrate either compelling reasons why

he should not return to her country or that he would

suffer serious harm upon removal. The regulation

provides:

An applicant described in paragraph b(1)(1)

of this section that is not barred from a

33

grant of asylum under paragraph (c) of this

section, may be granted asylum, in the exer-

cise of the decision-maker's discretion, if:

(A) The applicant has demonstrated compel-

ling reasons for being unwilling or unable to

return to the country arising out of the se-

verity of the past persecution; or

(B) The applicant has established that there

is a reasonable possibility that he or she

may suffer other serious harm upon removal

to that country.

The Petitioner submitted substantial and credible

evidence of past fear and the possibility of future

harm. Twenty-three exhibits of perilous conditions in

and around the Petitioner’s area in India coupled

with his failure to obey social and religious marriage

laws should have been sufficient evidence to meet

his burden of proof.

In In_re H, 21 1 & N. Dec. 337, 348, 1996 WL

291910 (BIA 1996), the court noted in doing so that

“where cognizable issues of past persecution arise, In

the interest of a fair and efficient adjudication of the

case, the parties should ordinarily present sufficient

evidence to allow the Immigration Judge to consider

and resolve all relevant issues and avoid the neces-

34

sity for remand if the Board ultimately de-

termines that the applicant has shown past persecu-

tion."

A person seeking asylum under CAT needs to

show that his persecution should be based on either

race, religion, nationality, political opinion, or asso-

ciation with a particular social group in order to

benefit the relief of asylum. 42 U.S.C. §1101, et. seq.

It suffices not that that asylum seeker show that

morally reprehensible acts were committed against

them, but they must also show that the acts were

committed against them. Matter of Mogharrabi, 191

I.N. 439 (1987).

The testimony of the applicant, if credible in light

of general conditions in the applicant's country may

be sufficient to sustain the burden of proof without

corroboration. The Petitioner met his burden of

proof of a well-founded fear of persecution by other

religions and social groups, as well as his own family

that criticized him for his disobedience in marriage.

See, e.g., Matter of B-, 21 I&N Dec. 66 (BIA 1995);

Matter of S- P-, 21 1&N Dec. 486 (BIA 1996).

Also, the Petitioner met the threshold of JNS uv.

Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94

L.Ed.2d 434 (1987). As Justice Stevens's majority

opinion stated, one can certainly have a well-founded

fear of an event happening when there is less than a

50% chance of the occurrence taking place. Id., 107

S.Ct. at 1213. Moreover, there is simply no room in

the United Nations definition for concluding that be

cause an applicant only has a ten percent chance of

being shot, tortured, or otherwise persecuted, that

he or she has no "well-founded fear" of the event

happening. /d. at 1217.

See also Matter of Mogharrabi, 19 I&N Dec. 439

(BIA 1987), where the Board stated that an appli-

cant has a "well-founded fear" if "a reasonable per-

son in his circumstances would fear persecution."

The record as a whole proves that the Petitioners’

fears of persecution were reasonable under this stan-

dard.

Furthermore, the Board’s decision is in deviation

of recent cases of this Court. In Awolesi v. Ashcroft,

341 F.3d 227 (2003), the alien filed a petition for re-

view of the order of the Board of Immigration Ap-

peals, which reversed the immigration judge's

decision granting asylum to alien and his son. The

Court of Appeals granted the Petitioner and vacated

the deportation order, since the Board did not ex-

plain how it came to its conclusion.

In Sotto v. INS, 748 F.2d 832, 836 (3d Cir.1984),

the Court determined that it could not give meaning-

ful review to the decision of the Board affirming the

Immigration Judge where the Board did not explain

why it discredited the sworn affidavit of the appli-

cant, noting only that he had “not submitted sub-

stantial, probative evidence to corroborate his fear."

“We recognize that there is a possibility that the

[immigration judge] or the Board choose to discredit

the [applicant's] affidavit for reasons that are within

their expertise. However, if they do not articulate

such reasons, we are unable to discharge our statu-

tory obligation of review. To determine whether the

administrative action was arbitrary, the courts must

be appraised why evidence, relevant and persuasive

on its face, was discredited. We must also review the

decisions of administrative agencies to ascertain

whether the proceedings were conducted with regu-

larity, including whether the agency considered the

relevant evidence.” Id. at 837. See also Tipu _v. INS,

20 F.3d 580, 586 (3d Cir.1994) ("[T]he Board failed to

consider one of the factors in Tipu's favor, a practice

which in Sotto v. INS resulted in a remand for re-

consideration."); Bastidas v. INS, 609 F.2d 101, 105

(3d Cir.1979) (holding that the decision of the Board

“will not be affirmed by this court unless the reasons

for such a finding are made clear").

Not only did the Petitioner meet his burden of

proof, his status must be changed to allow him to

remain in the country. The previous decisions were

arbitrary and the burdens of proof were misapplied.

Contrary to the lower courts’ decisions, the Peti-

tioner should have been granted protection under

the CAT. See Matter of Burbano, 20 I&N Dec. 872,

874 (BIA 1994). Therefore, it was an error of law to

deny the Petitioner relief under the Convention

Against Torture.

By applying an arbitrary burden and misapplying

the burden to gain asylum, the lower courts deviated

from applicable law and violated the. Petitioner’s

constitutional rights to a fair hearing.

CONCLUSION

For the foregoing reasons, Rakesh Patel, the Peti-

tioner, respectfully requests that this Honorable

Court grant this Writ for Certiorari so that the Third

Circuit applies the proper standard of proof in a case

involving asylum, or in the alternative, direct the

Third Court to allow discovery of the Petitioner’s

true fear of his safety and the perilous conditions of

the area in India, and such other relief that the

Court deems just and proper. Furthermore, the Pe-

titioner secks a stay of his removal pending the out-

come of his Writ for Certiorari as well as his I[-140

Petition that has been pending since July 2007.

Respectfully submitted,

Rakesh Patel,

The Petitioner

Pro Se

APPENDIX A - SUR PETITION FOR PANEL

HEARING, DATED OCTOBER 10, 2007

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 06-4700

RAKESH PATEL,

Petitioner

y

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

(BIA No. A97-446-088)

SUR PETITION FOR PANEL REHEARING

Present: Scirica, Chief Judge, FUENTES and

SMITH,

Circuit Judges

The petition for rehearing filed by petitioner in the

above-entitled case having been submitted to the

judges who participate in the decision of this Court,

and no judge who concurred in the decision having

asked for rehearing, and none of the members of the

panel having voted for rehearing, the petition for re-

hearing is denied.

BY THE COURT,

/s/ Anthony J. Scirica

Chief Judge

DATED: October 10, 2007

LML/cc: Mr. Rakesh Patel, Paul F. Stone

APPENDIX B - JUDGMENT, DATED

SEPTEMBER 17, 2007

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

UNITED STATES

Respondent

On Petition for Review of a Decision of the

Board ol Immigration Appeals

BIA No. A97-446-088

rration Judge: Honorable Mary;

l, }

Reichenberg

uant to Third Circuit |

\uvust 28. 2007

SMITH, Circuit Judges

JUDGMENT

This cause came to be considered on the record

from the Board of Immigration Appeals and was

submitted pursuant to Third Circuit LAR 34.1(a) on

August 28, 2007. On consideration whereof, it is

now hereby

ORDERED and ADJUDGED by this Court that

the petition for review is DENIED. No Costs taxed.

All of the above in accordance with the opinion of

this Court.

ATTEST

's/ Marcia M. Waldron

Clerk

DATED: September 17

APPENDIX C - OPINION OF THE COURT

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 06-4700

RAKESH PATEL,

Petitioner

.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

On Petition for Review of a Decision of the

Board of Immigration Appeals

BIA No. A97-446-088

(U.S. Immigration Judge: Honorable Margaret R.

Reichenberg)

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 28, 2007

Before: SCIRICA, Chief Judge, FUENTES and

SMITH, Circuit Judges

OPINION OF THE COURT

PER CURIAM

Rakesh Patel, a native and citizen of India, has

filed a petition for review of an order of the Board of

Immigration Appeals (“BIA”) denying his motion to

reopen and reconsider its prior order affirming the

Immigration Judge’s (“IJ”) denial of his first motion

to reopen removal proceedings. We will deny the pe-

tition.

Patel entered the United States in February 2000

as a non-immigrant temporary worker authorized to

remain until June 1, 2001. He stayed beyond the al-

lotted time and in October 2004, was charged as be-

ing removable for having overstayed his admission

period. See Immigration and Nationality Act (“INA”)

§ 237(a\(1)(B) [8 U.S.C. § 1227(a)(1(B)]. ' Patel con-

ceded removability but applied for asylum,

‘Patel was also charged with removability for having pro

cured admission by fraud or willful misrepresentation,

see INA § 212(a)(6C\(L) (8 U.S.C. § L182(aX6CXDI, but

the Department of Homeland Security later withdrew the

charge.

~]

a

withholding, and protection under the United Na-

tions Convention Against Torture. He voluntarily

withdrew those applications, however, at an August

10, 2005, hearing before the IJ. The IJ then granted

Patel’s request to voluntarily depart the country

within 120 days.

On December 2, 2005, six days before his volun-

tary departure period expired, Patel submitted to the

IJ a motion to reopen the proceedings “to lawfully

adjust his status based on a pending application for

Canadian residency.” The IJ denied the motion be-

cause it was untimely and because “the situation

does not create an appropriate basis to reopen the

respondent’s case before this Court.” On June 22,

2006, the BIA adopted and affirmed the IJ’s decision.

The next month, Patel filed with the BIA a motion

to reopen and reconsider. He argued that the pro-

ceedings should be reopened so he could file an asy-

lum application based on changed country conditions

in India. Patel also urged the BIA to reconsider its

prior decision, claiming that the December 2, 2005

motion to reopen was timely because it was filed be-

fore his voluntary departure period expired. The

Board denied both motions on September 27, 2006.

It found that the motion to reopen was numerically

barred, and concluded that evidence Patel submitted

did not establish a change in country conditions suf-

ficient to merit reopening. See 8 C.F.R. §

1003.2(c3\1) (providing an exception to the rule

that a motion to reopen must be filed within 90 days

of a final decision, where an alien files a motion to

reopen. “[(tlo apply or reapply for asylum or with-

holding of deportation based on changed circum-

stances arising in the country of nationality...if such

evidence is material and was not available and could

not have been discovered or presented at the previ-

ous hearing.”). With respect to the motion for recon-

sideration, the Board concluded that it had properiy

determined that the motion to reopen that Patel had

submitted to the IJ was untimely, even though that

motion had been filed within the voluntary depar-

ture period.

On October 26, 2006, Patel filed a habeas corpus

petition pursuant to 28 U.S.C. 2241 in United States

District Court for the District of New Jersey. Before

taking any substantive action on the § 2241 petition,

the District Court transferred it to this Court for

treatment as a petition for review pursuant to the

REAL ID Act of 2005. See Bonhometre v. Gonzales,

414 F.3d 442, 446 (3d Cir. 2005)

We have jurisdiction to review the BIA’s Septem-

ber 27, 2006 denial of Patel’s motion to reopen and

his motion for reconsideration.’ See INA § 242 |8

“Our review does not extend, however, to either (i) the

IJ’s order granting voluntary departure or (ii) the BIA’s

June 22, 2006 decision. See Stone v. INS, 514 U.S. 386,

405 (1995) (holding that review or an original removal

decision and a subsequent removal order are distinct); see

Ja

U.S.C. § 1252] We review the denial of a motion to

reopen and a motion for reconsideration for abuse of

discretion. See Xu Young Lu v. Ashcroft, 259 F.3d

127, 131 (3d Cir. 2001); Nocon v. INS, 789 F.2d 1028,

1029 (3d Cir.1986). Thus, in order to succeed on the

petition for review, Patel must ultimately show that

the BIA’s discretionary decision was somehow arbi-

trary, irrational, or contrary to law. See Tipu v. INS,

20 F.3d 580, 582 (3d Cir. 1994).

An alien generally “may file only one motion to re-

open deportation... proceedings.” See 8 C.F.R. §

1003.2(c)(2). There is an exceptions to this numeri-

cal limitation, however, for asylum applicants who

demonstrate that their claim is based on changed

circumstances in the country of removal, “if such

evidence is material and was not available and could

not have been discovered or presented at the previ-

ous hearing.” INA § 240(cX7) [8 USC. §

1229a(c(7)]; see also 8 C.F.R. § 1003.2(c)(3)(ii). A

motion to reopen proceedings based on changed

country conditions “shall state the new facts that

will be proven at a hearing to be held if the motion is

also McAllister v. Atty. Gen’l, 444 F.3d 178, 185 (3d Cir.

2006) (holding that the requirement that an alien appeal

a removal order within 30 days is jurisdictional). In addi-

tion, to the extent that Patel alleges that the BIA abused

its discretion in denying sua_ sponte reopening, we lack

jurisdiction. See Calle-Vujiles v. Ashcroft, 320 F.3d 472

(3d Cir. 2003)

granted and shall be supported y affidavits or other

evidentiary material.” 8 C.F.R. § 1003.2(c)(1).

In his motion to reopen, Patel claimed that he sat-

isfied the changed circumstances exception because

“recent events including the railway bombings have

led to increased communal tensions and riots in Re-

spondent’s hometown of Ahmedabad.”* As support

for this assertion, Patel submitted news articles per-

taining to train bombings, apparently carried out by

an Islamist militant organization opposed to Indian

rule in Kashmir, in the cities of Mumbai and Ah-

medabad in 2006. The bombings, however, are rep-

resentative of “[mJere generalized lawlessness and

violence between diverse populations” that will not

support relief. Abdille v. Ashcroft, 242 F.3d 477, 491-

92 (3d Cir. 2001). Moreover, as the BIA noted, the

news articles indicate that the Indian government

investigated and made arrests in the cases. See Mu-

langa v. Ashcroft, 349 F.3d 123, 132 (8d Cir. 2003)

(stating that an asylum applicant must show that

' Patel also suggests that he fears violence from family

members who opposed his 1998 marriage for social status

reasons. He has not, however, provided any evidence

supporting this claim, which, in any event, is based on a

personal dispute. See Amanfi v. Ashcroft, 328 F.3d 719,

727 (3d Cir. 2003) (affirming BIA’s conclusion that the

alien was not persecuted “on account of religion, but

rather because of retaliation in response to a personal

dispute involving his father.”)

persecution is committed by the government or by

forces that the government is either unable or un-

willing to control). Therefore, because Patel did not

sufficiently establish changed country conditions

which materially affect his asylum claim, the BIA

did not abuse its discretion in denying the motion to

reopen.

Likewise, there was no abuse of discretion in the

BIA’s denial of Patel’s motion for reconsideration.

Patel asked the BIA to reconsider its determination

that his first motion to reopen was untimely filed.

Generally, a motion to reopen must be filed no later

than 90 days after the date on which the final ad-

ministrative decision was rendered in the proceed-

ings sought to be reopened. See 8 C.F.R. §

1003.2(c)(2); Filja v. Gonzales, 447 F.3d 241, 252 (3d

Cir. 2006). Here, the IJ rendered a final decision on

August 10, 2005, when it granted voluntary depar-

ture and both parties waived appeal. See 8 C.F.R. §

1003.39 (providing that “the decision of the Immigra-

tion Judge becomes final upon waiver of appeal”). He

filed his motion to reopen more than 90 days later,

on December 2, 2005. Thus, Patel’s first motion to

reopen was untimely filed, and the BIA correctly af-

firmed the denial of that motion. We futher note that

while Patel’s motion to reopen was filed within the

voluntary departure period, he cannot benefit from

our decision in Kanivets v. Gonzales, 424 F.3d 330,

336 (3d Cir. 2005), because his motion to reopen was

not timely filed. Id. at 335-36 (holding

12a

that a timely petition for reopening filed prior to ex-

piration of voluntary departure period tolled volun-

tary departure period). For reasons that we have

given, we will deny the petition for review.

APPENDIX D - DECISION OF THE BOARD OF

IMMIGRATION APPEALS, DATED

SEPTEMBER 27, 2006

File: A97 446 088 — Elizabeth Date: Sep 27 2006

In re: RAKESH C. PATEL

IN REMOVAL PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT: Jonathan Saint-

Preux, Accredited Representative

CHARGE:

Notice: Sec. 237(a)(1)(A), I&N Act [8 U.S.C. §

1227(a)(1)A)] — Inadmissable at

time of entry or adjustment of

status under section 212

(aX6)(C)a), I&N Act [8 U.S.C. §

1182 (aX6XC)a)] — Fraud or will-

ful misrepresentative of a mate

rial fact

237(a)(1)B), I&N Act [8 U.S.C. §

1227(a)(1)(B)| In the United

States in violation of law

APPLICATION: — Reconsideration; reopening; re-

mand

ORDER:

PER CURIAM. The respondent is a native and

citizen of India. This case was last before us on June

22, 2006, when we denied the respondent’s appeal of

the Immigration Judge’s denial of his initial motion

to reopen proceedings. The respondent filed the in-

stant motion to reopen and reconsider our prior deci-

sion. The respondent’s motion to reconsider and his

motion to reopen will both be denied.

We note that a party may only file one motion to

reopen. See 8 C.F.R. § 1003.2(c)(2). This is the re-

spondent’s second motion to reopen. Thus, the re-

spondent’s motion is number barred unless he

established that he falls within an exception to the

applicable numerical restrictions relating to motions

to reopen. The respondent does aver that his motion

to reopen is not subject to the time and numerical

restrictions on such motions, as there are changed

circumstances arising in India which materially af-

fect his asylum claim. See 8 C.F.R. § 1003.2(c)(3)

However, in order to establish that such exception is

applicable, the respondent must present evidence

which is material and which was not available and

could not have been discovered at a previous hear-

ing. We do not find that the respondent has shown

that most of the documents presented were previ-

ously unavailable or that they could not have been

discovered at a previous hearing. We do not find

that the respondent has shown that most of the

documents presented were previously unavailable or

that they could not have been discovered at a previ-

ous hearing. We note that the respondent’s merits

hearing took place on ....... Much of the evidence

presented, with the instant motion, was discoverable

prior to that date.

The majority of the respondent’s documents at-

tached to his asylum application, for purposes of the

motion to reopen, were published prior to August of

2005. For example, there is a Human Rights Watch

Report published in 1996, multiple articles published

in 2002, an article about a minor blast in Ahmeda-

bad published in 2003, and Associated Press article

published in 1996, and several other articles pub-

lished in 2002, 2003, 2004, and one in July 2005. We

can not consider these documents, as the exception

to the time and number limitations (for motions to

reopen) requires that the evidence of change circum-

stances not have been previously available or discov-

erable at a_ prior hearing. See 8 C.F.R. §

1003.2(¢)(3)(1).

The respondent did present some articles, pub-

lished in 2006, which discuss more recent events in

India. For example, there are several articles dis-

cussing the bombing of commuter trains in both

Mumbai and Ahmedabad in 2006. However, these

articles indicate that the government of India con-

sidered these bombings to be terrorist attacks by ex-

l6a

tremist groups, and the government immediately

conducted investigations and made arrests with re-

gard to such attacks. See, eg, February Train Blast

Aimed at Ahmedabad...,” India eNews.com, June 19,

2006 (indicating that some people arrested had ad-

mitted to carrying out the blast in Ahmedabad); see

also “India:End Communal Violence in Gujarat,

Kashmir,” Human Rights Watch, May 4, 2006 (indi-

cating that Muslim residents were terrified, but that

the army was called in to prevent an escalation of

violence). Therefore the government of India ap-

pears to have responded in order to protect its citi-

zens from these indiscriminate acts of violence.

Thus, there is....... to the respondent from such acts.

See 8 C.F.R. § 1208.13({a). In addition, the respon-

dent has failed to establish that relocation, within

{India and away from Ahmedabad or Mumbai, is not

a reasonable option. /d. Furthermore, we note that

the respondent specifically avers, in his asylum ap-

plication, that he fears “communal violence.” How-

OVER t the meaning of the Act. See, e.g., Matter

of Sanchez and Escobar, 19 I&N Dec. 276 (BIA

1985). Hence, we do not find that the respondent has

sufficiently established that there are changed coun-

try conditions which materially affect his asylum

claim, nor has he established that he is prima facie

eligible for asylum based on the information in the

previously unavailable articles attached to his mo-

tion to reopen.

17a

Turning to the respondent’s motion to reconsider,

the respondent asserts that, due to several circum-

stances beyond his control, he was unable to previ-

ously file a timely brief with his appeal. Thus, he is

now making an argument which he intended to

make previously. The respondent claims that we

erred by determining that his prior motion to reopen,

submitted to the Immigration Judge, ....... The re-

spondent points to both Kanivets v. Gonzales, 424

F.3d 330 (3" Cir. 2005), and Azarte v. Ashcroft, 392

F.3d 1278 (9" Cir. 2005)' for this proposition. We

note that in both of those cases, the Courts deter-

mined that a timely filed motion to reopen, filed

within the 90-day filing deadline enumerated in the

applicable regulations, and which is also filed prior

to the expiration of the period of voluntary depar-

ture, will have the effect of tolling the period of vol-

untary departure (it does not toll the actual 90-day

filing deadline itself). See Kanivets v. Gonzales, su-

pra, at 332 (noting that the Kanivets filed timely

motions to reopen); see also Azarte v. Ashcroft, supra,

at 1282 (noting that the motion at issue was filed

“well within..the 90-day statutory period for motions

'Azarte is cited by the Third Circuit in its Kanivets deci-

sion. Thus, although the Azarte decision does not have

precedential value in the Third Circuit, we will discuss

both of these decisions as the final conclusions in both

decisions are the same

to reopen”). Here, the respondent filed his initial mo-

tion to reopen, with the Immigration Judge, several

weeks after the 90-day period had ended. See I.J. at

3 (noting that the 90-day period ended on November

10, 2005, but that the respondent’s motion to reopen

was not filed until December 2, 2005); see also 8

C.F.R. § 1003.23(b)(1). Thus, despite the fact that

the respondent’s motion to reopen was filed within

his period of voluntary departure, it was properly

deemed untimely filed because it was filed outside of

the statutory 90-day deadline for filing a motion to

reopen.

Accordingly, the respondent’s motion to reopen is

denied. and his motion to reconsider is also denied.

FOR THE BOARD |

19a

APPENDIX E - DECISION OF THE BOARD

OF IMMIGRATION APPEALS, DATED

JUNE 22, 2006

Date: Jun 22 2005

File: A97-446-088-Elizabeth

In re: PATEL, RAKESH C.

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Saint-Preux,

Jonathan, Esquire

ORDER:

PER CURIAM. We adopt and affirm the decision of

the Immigration Judge. See Matter of Burbano, 20

I&N Dec. 872, 874 (BIA 1994) (noting that adoption

or affirmance of a decision of an Immigration Judge,

in whole or in part, is “simply a statement that the

Board’s conclusions upon review of the record coin-

cide with those the Immigration Judge articulated in

his or her decision”). The respondent was granted

the privilege of voluntary departure. He was ad-

vised, orally and in writing, of the consequences for a

failure to depart. The respendent has not shown

that he submitted a request for an extension of time

20a

to remain in the United States with the Department

of Homeland Security. He failed to depart. The Im-

migration Judge correctly found that the respon-

dent’s motion to reopen was not timely filed. The

respondent has not demonstrated a basis to reopen

or administratively close his removal proceedings.

The Immigration Judge appropriately denied his mo-

tion. Accordingly, the appeal is dismissed.

FORTHE BOARD _

2la

APPENDIX F - DECISION ON MOTION TO

REOPEN, DATED DECEMBER 15, 2006

File No: A97 446 088

In the Matter of:

Rakesh C. Patel, In Removal Proceedings

Respondent

APPLICATION: Motion to Reopen

On Behalf of Respondent:

Jonathan Saint-Preux, Esq.

700 Nye Avenue

Irvington, NJ 07111

On Behalf of Government:

Patrice Rodman, Esq.

Assistant Chief Counsel

Department of Homeland Security

Elizabeth, NJ 07201

DECISION ON MOTION TO REOPEN

Respondent seeks reopening of the Court’s deci-

sion dated August 10, 2005. The Department of

Homeland Security (“DHS”) opposes reopening of the

case. The respondent is not detained.

22a

Procedural History

Respondent is a native and citizen of India who

was admitted to the United States at New York, NY,

on or about February 8, 2000, as a non-immigrant

HIB and authorized to remain for a temporary pe-

riod not to exceed June 1, 2001. The respondent re-

mained in the United States beyond June 1, 2001,

without authorization from the Immigration and

Naturalization Service. The Department of Home-

land Security (“DHS”) issued a Notice to Appear,

Form 1-831, dated October 15, 2004 (Exhibit 1), to

the respondent charging the respondent with being

removable pursuant to section 237 (a)(1)(B) of the

Immigration and Nationality Act, as amended

(“Act”). |

The respondent admitted the allegations of fact 1

through 4 on the Notice to Appear and conceded that

he was removable as charged pursuant to section

‘The Notice to Appear initially alleged that the respon-

dent was the beneficiary of an 1129 employment based

application for extension of I{IB status approved on De-

cember 18, 2001, which was submitted on his behalf by a

company, Compro Services, Inc., which did not have a job

for him and for which the respondent did not work and

that, therefore, the respondent was removable pursuant

to section 237(aX 1A) of the Act. DHS removable pursu-

ant to section 237(a)(1A) of the Act. DHS withdrew this

factual allegation and this charge during the course of the

proceeding before the Court

237 (a)(1)(B) of the Act. Based upon respondent’s

admissions and concessions, the Court found he was

removable pursuant to section 237(a)(1)(B) of the Act

as charged on the Notice to Appear. At a removal

proceeding on August 10, 2005, the respondent des-

ignated India as the country of removal should such

action become necessary.

As relief from removal, the respondent requested

asylum pursuant to section 208 of the Act, withhold-

ing of removal pursuant to section 241(b\(3) of the

Act, relief under Article 3 of the convention against

Torture and voluntary departure in the alternative.

At a merits hearing on August 10, 2005, the respon-

dent knowingly and voluntarily withdrew his appli-

cations for asylum, withholding of removal and relief

under Article 3 of the Convention Against Torture.

DHS agreed to allow respondent to request volun-

tary departure pursuant to section 240B(a)(2)(A) of

the Act and he was granted until December 8, 2005,

to voluntarily depart the United States. The re-

spondent and DHS waived appeal! of this decision.

On December 2, 2005, the respondent, through his

attorney, filed a Motion to Reopen Proceedings and

for Administrative Closure (“Motion to Reopen”). Re-

spondent asks the Court to reopen the proceedings

because he wants to adjust his status to a Canadian

landed immigrant based on a pending application

before the Canadian Consulate in Boston, Massa-

chusetts. He also asks that the reopened proceed-

ings then be administratively closed pending

the Canadian Consulate’s action on this application.

On December 13, 2005, DHS filed a response op-

posing Respondent’s Motion (“DHS Response”). DHS

argues that the Motion to Reopen is untimely filed.

In the alternative, they assert that an opportunity to

obtain Canadian landed immigrant status is not a

form of relief which can be entertained by the Court

and should not, therefore, provide a proper basis to

reopen the matter.

Statement of Law

A motion to reopen seeks to reopen proceedings so

that new evidence can be presented and a new deci-

sion entered on a different Matter of Cerna, 20 I&N

Dec. 399 (BIA 1991). A motion to reopen will not be

granted unless the Immigration Judge 1s satisfied

that the evidence sought to be offered is material

and was not available and could not have been dis-

covered or presented at the hearing. 8 C.F.R. 3.23

(b)(3), INS v. Wang, 450 U.S. 139 (1981); Matter of

Coehio, 20 I&N Dec. 464 (BIA 1992); Matter of

Barrera, 19 I&N Dec. 837 (BIA 1989); Matter of Rod-

riguez-Vera, 17 I&N Dec. 105 (BIA 1979): Matter of

Sipus, 14 I&N Dec. 229 (BIA 1972); Matter of Lam,

14 I&N Dec. 98 (BIA 1972).

Motions to reopen are subject to strict time and

number limitations. A party may file only one mo-

tion to reopen removal proceedings and that motion

must be filed no later than ninety days after the date

on which the final administrative decision was ren-

dered in the proceeding. 8 C.F.R. 3.23 (b)(1). ’

Analysis

The Motion to Reopen is untimely. The respon-

dent waived appeal of the Court’s decision on August

10, 2005, and the decision was, therefore, adminis-

tratively final on that day. The ninety day period for

timely filing a motion to reopen ended on or about

November 10, 2005. The Motion to Reopen was not

filed with the Court until December 29, 2005. The

Motion to Reopen does not qualify for any exception

to the filing deadline. Accordingly, the Motion to

Reopen will be denied as untimely.

If the Motion to Reopen were deemed to be timely

filed, the Court agrees with DHS that the purpose

for which respondent seeks to reopen his case does

not constitute a form of relief over which the Court

has jurisdiction. The respondent has presented nu-

merous documents regarding his efforts to be

>The time and numerical limitations will not apply to mo-

tions to reopen to apply for asylum if the motion is based

on changed circumstances in the country of nationality or

the country to which removal was ordered if such evi-

dence is material and was not available and could not

have been discovered or presented at the previous pro

ceeding. 8 C.F.R. 3.23(b)(4). However, the respondent is

not seeking to reopen his case to again apply for asylum.

granted Canadian landed immigrant status. Based

on the Motion to Reopen, it seems obvious, even to

the respondent, that Canadian authorities have the

sole and exclusive jurisdiction over whether he can

granted this status. Rather, the respondent appears

to asking the Court to exercise some non-existent

equitable authority by seeking to have the case re-

opened anyway so he can avoid the consequences of

overstaying the time he was given to depart the

United States voluntarily. However sympathetic the

respondent’s efforts to become a Canadian landed

immigrant might be, that situation does not create

an appropriate basis to reopen the respondent’s case

before this Court. Consequently, even if the Motion

to Reopen were deemed to timely filed, this Court

would deny the Motion because it fails to set forth

what new evidence is present which would support

some different decision in the case.

ORDER

IT IS HEREBY ORDERED that Respondent’s Mo-

tion to Reopen is denied.

Date: 12-15-2005

Margaret R. Reichenberg

Immigration Judge

APPENDIX G - ORDERS

In The Removal Case of Case No: A97-446-088

PATEL, RAKESH C.

RESPONDENT

ORDERS

[x] This is a memorandum of the Court’s Decision

and Orders entered on 8-10-05. This memoran-

dum is solely for the convenience of the parties.

The oral or written Findings, Decision and Or-

ders is the official opinion in this case. { ) Both

parties waived issuance of a formal oral decision

in the case.

{ ] The respondent was ordered REMOVED from the

United States to _____ ( ) in absentia.

{| | Respondent’s application for VOLUNTARY DE-

PARTURE was DENIED and respondent was or-

dered removed to ———s ___, in the

alternative to

[x] Respondent’s application for VOLUNTARY DE-

PARTURE was GRANTED until 12-8-2005, upon

posting a voluntary departure bond in the

amount of $ ———__~«SOto:« INS within five busi-

ness days from the date of this Order, with an al-

ternate Order of removal to INDIA _ or

__. Respondent shall present to INS

[ J

[x]

[x ]

28a

within ( ) thirty days ( ) sixty days from the

date of this Order, all necessary travel docu-

ments for voluntary departure.

Respondent’s application for Asylum was ( )

granted ( ) denied

( ) withdrawn with prejudice.

( ) subject to the ANNUAL CAP under the

INA section 207(a)(5).

( } Respondent knowingly filed a FRIVOLOUS

asylum application.

Respondent’s application for WITHOLDING of

removal under INA section 241 (b)(3) was ( )

granted ( ) denied (x ) withdrawn with preju-

dice.

Respondent’s application for DEFERRAL of

removal under the Torture Convention was ( )

granted ( )denied ( ) withdrawn with preju-

dice.

Respondent’s application for CANCELLA-

TION of removal under section ( ) 203(b) of

NACARA, ( ) 240A (b)(2) ( ) 240A (b)(2) of

the INA, was () granted ( ) denied ( ) with-

drawn with prejudice. If granted, it was or-

dered that the INS issue all appropriate

documents necessary to give effect to this Or-

der. Respondent ( )is( ) is not subject to the

ANNUAL CAP under INA section 240A(e).

{ |

[ ]

29a

Respondent’s application for a WAIVER under

the INA section was ( ) granted

( ) denied ( ) withdrawn or (_) other

___. ( ) The conditions imposed by

INA Section 216 on the respondent’s perma-

nent resident status were removed.

Respondent’s application for ADJUSTMENT

of status under section _—_scoff the ( +) INA (

) NACARA ( ) was ) a ( )

denied ( ) withdrawn with prejudice. If

granted, it was ordered the INS issue all ap-

propriate documents necessary to give effect

to this Order.

Respondent’s status was RESCINDED pursu-

ant to the INA sec 246.

Respondent’s motion to WITHDRAW his ap-

plication for admission was ( ) granted (_)

denied. If the respondent fails to abide by any

of the conditions directed by the district direc-

tor of INS, then the alternate Order of re-

moval shall become immediately effective

without further notice or proceedings; the re-

spondent shall be removed from the United

States to __

Respondent was ADMITTED asa ____

until _ ____. As a condition of admission,

the respondent was ordered to post a $

bond.

Case was ( ) TERMINATED ( ) with( )

without prejudice

( ) ADMINISTRATIVELY CLOSED.

Respondent was orally advised of the LIMI-

TATION on discretionary relief and conse-

quences for failure to depart as ordered.

{ ] If you fail to voluntarily depart when and

as required, you shall be subject to civil money

penalty of at least $1,000, but not more than

$5,000, and be ineligible for a period of 10

years for any further relief under INA sections

240A, 240B, 245, and 248 (INA Section 240B

(d)).

If you are under a final order of removal, and

if you willfully fail or refuse to 1) depart when

and as required, 2) make timely application in

good faith for any documents necessary for

departure, or 3) present yourself for removal

at the time and place required, or, if you con-

spire to or take any action designed to prevent

or hamper your departure, you shall be sub-

ject to civil money penalty of up to $500 for

each day under such violation. (INA section

2740 (a)). If you are removable pursuant to

INA 237(a), then you shall further be fined

and/or imprisoned for up to 10 years. (INA

section 243(a)1)).

Other

Dated Aug 10 2004

Margaret R. Reichenberg, Judge

Appeal: (x) waived reserved by ( ) Respondent

( )INS (x) Both

Due By

Certificate of Service

This Document was served by

INS and Ahien’s ATT/Rep

Date e. 10-05 by Judy

APPENDIX H - U.S. DEPARTMENT OF

LABOR

EMPLOYMENT AND TRAINING

ADMINISTRATION LETTER, DATED

JULY 11, 2007

U.S. Department of Labor

Employment and Training Administration

Atlanta Processing Center

Harris Tower

233 Peachtree Street, Suite 410

Atlanta, GA 303030

July 11, 2007 ETA Case No.:A052342547 1

Name: Rakesh Chandubhal

Patel

Occupation: First-Line Superv:

sors of Retail Sales Workers.

41-1011.00

Date of Acceptance: March 8,

2007

JOLLY 100 Corp

c/o Ramesh Patel

45-20 Queens Blvd

Sunnyside, NY 11104

Dear JOLLY 100 CORP

The Department of Labor has made a determination

on your Application for Permanent Employment

Certification (ETA Form 9089) pursuant to 20 CFR §

656.24 and as required by the Immigration and Na-

tionality Act, as amended

Form ETA 9089 has been certified and is enclosed.

This certification must be attached to the I-140 peti-

tion and filed with the appropriate office of the

United States Citizenship and Immigration Services

(USCIS).

Sincerely,

Melanie Shay

Certifying Offices

Enclosure(s): ETA Form 9089

34a

APPENDIX I - NOTICE OF ACTION

SRC-07-231-53107

IMMIGRANT PETITION FOR ALIEN WORKER

RECEIVED: July 24, 2007

NOTICE: July 30, 2007

Petitioner: Jolly 100 Corp

Beneficiary: Patel, Rakesh C.

Pierre I. Eloi

32 N Day Street

Suite 2

Orange, NJ 07050

Notice Type: Receipt Notice

Amount Received: $195.00

Section: Other Workers,

Sec.203(b)(3 (A)Gi1)

Receipt Notice — This notice confirms that USCIS

received your application or petition (“this case”) as

shown above. If any of the above information is in-

correct, please immediately call 800-375-5283 to let

us know. This will help avoid future problems.

This notice does not grant any immigration status or

benefit. It is not even evidence that this case 1s still

pending. It only shows that the application or peti-

tion was filed on the date shown.

35a

Processing time — Processing times vary by kind of

case. You can check our website at www.uscis.gov

for our current “processing times” for this kind of

ease at the particular office to which this case is or

becomes assigned. On our websites “case status

online” page, you can also view status or sign up to

receive free e-mail updates as we complete key proc-

essing stops on this case. During most of the time

this case is pending, however, our systems will show

only that the case has been received, and the proc-

essing status will not have changed, because we will

be working on other cases that were filled earlier

than this one. We will notify you by mail, and show

in our systems, when we make a decision on this

case or if we need something from you. If you don’t

receive an initial decision or update from us within

our current processing time, check our website or

call 800-375-5283. Please save this notice, and any

other notice we send you about this case, and please

make and keep a copy of any papers you send us by

any means, along with any proof of delivery to us.

Please have all these papers with you if you contact

us about his case.

If this case is an I-130 Petition- Filing and approval

of a Form 1-130, Petition for Alien Relative, is only

the first stop in helping a relative immigrate to the

United States. The beneficiaries of a position must

wait until a visa number ts available before they can

take the next step to apply for an immigrant visa or

adjustment of status to lawful permanent residence.

36a

To best allocate resources, USCIS may wait to proc-

ess forms 1-130 until closer to the time when a visa

number will become available, which may be years

after the petition was filed. Nevertheless, USCIS

processes forms I-130 in time not to delay relatives

ability to take the next step toward permanent resi-

dence once a visa number does become available. If,

before final action on the petition, you decide to

withdraw your petition, your family relationship

with the beneficiary ends, or you become a U:S. citi-

zen, call 800-375-5283.

Application requiring biometrics In some types of

cases USCIS requires biometrics. In such cases,

USCIS will send you a SEPARATE appointment no-

tice with a specific date, time and place for you to go

to a USCIS Application support Center (ASC) for

biometrics processing. You must WAIT for the sepa-

rate appointment notice and take it (NOT this re-

ceipt passport or national photo identification.

Acceptable kinds of photo identification are: a pass-

port or national photo identification issued by your

country, a drivers license, a military photo identifi-

cation, or a state-issued photo identification card. If

you receive more than one ASC appointment notice,

even for different case, take them both to the first

appointment.

If your address changes — if your mailing address

changes while your case is pending, call 800-375-

5283 or use the “Online Change of Address” function

3la

on our website. Otherwise, you might not receive

notice of our action on this case.

Please see the additional information on the back.

You will be notified separately about any other cases

you filed.

IMMIGRATION & NATURALIZATION SERVICE

TEXAS SERVICE CENTER

P.O. BOX 851488 — DEPT A

MESQUITE TX 75185-1488