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

MAR 1 3 2008 |

FFICE OF THE CLERK |

Q) SUPREME COURT, U.S.

No. 07-771

IN THE

Supreme Court of the United States

ae

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 REHEARING

RAKESH C. PATEL

45-20 Queens Blvd.

Sunnyside, NY 11104

(718) 784-2925

Pro-se Petitioner

Wright Appellate Services

0305

(215) 733-9870 @ (800) 507-9020 @ Fax (215) 733-9872

TABLE OF CONTENTS

Page

Tee OF Comers... ee ciccetaeetea i

Table Of Cited Asitincr abate oics coc ccccsiosccccsdscacnacscentegiaus ii

Fetitpcin fit’ HRT oon siicas bss oc cosassvinrserceae 1

Re | ee ee EA re mn 2

Argument In Support of Petition for Rehearing .....3

A. The Petitioner Has Alleged Intervening

Circumstances Of A Substantial Or

COT P OE oc ccensccciesde sie 3

B. The Petitioner’s Writ For Certiorari Must Be

Granted For Or To “Other Substantial Grounds

Not Previously Presented................... sis wana eeae! 9

Comciusion...........:.......- I 5 13

TABLE OF CITED AUTHORITIES

Cases

Abdille v. Ashcroft, 242 F.3d 4°

Se

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

(3d Cir. 2003)

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

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

Bakery & Pastry Drivers & Helpers Local 802 v.

Wohl, 315 U.S. 769, 773 (1942)

Barrera-Leyva v. INS, 653 F.2d 37

1981)

Cano-Merida v. INS, 311 F.3d, 960, 964 (9° Cir

2002)

Castro-

1978)

Castro-O' Ryan v. INS, 847 F.2d 1307, 1312 (1988) 8

Colmenar v. INS, 210 F.3d 967, 971 (9° Cir. 2000)

Davts v. Roadway Express, Ince. ,621 F.2d 775, 776

~ t)

(5° Cir. 1980)

Fatin v. INS, 12 F.3d 1233, 1240 (3d cir. 1993) ....10

Flynn v. United States, 75 S.Ct. 285, 286 (1955).....4

Gao v. Ashcroft, 299 F.3d 266, 273 (3d Cir.

2002)

Immigration & Naturalization Serv. v. Elias-

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

Bed RR AE COS RIOR Dc cscrreesium ness vateccvae euekatclaeounuecniin 8

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

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

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

L.Ed.2d 321 (1984)

Matter of B-, 21 1& N Dec. 66 (BIA 1995).............

Matter of Cerna, 320 I&N Dec. 399 (1991)

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

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

Ngure v. Ashcroft, 367 F.3d 975, 991 (8* cir.

2004)

Reno v. Flores, 507 U.S. 292. 306. 113 S.Ct. 1435

(1993)

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

1985)

Rumsey Indian Rancheria of Wintun [ndians v.

Willson, 99 F.3d 321, 322 (9" Cir. 1996)

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

United States v. Ohio Power Co., 351 U.S. 980

(1956)

United States v. Ohio Power Co., 353 U.S. 98, 99

bs g HEIRS aseain easiest ee ee ae OnE RO TRD Dee Oe eae 4

Vail Mfg. Co. v. NLRB, 68 S. Ct. 32 (1947)......0000--. 4

Statutes

re a I an roc cn beceenccacnapdaneeons Pail 1]

8 C.F.R. § 208.

8 C.F.R. § 208

ar se andi ead cere fg eran :

8 C.F.R. § 208.13(b)(1 (a (A), (B) ......... RIMS Sar Monet ss

8 C.F.R. §:

8 C.F.R. §:

8 U.S.C. § 1101(aX42)(A)

8 U.S.C. § 1231(b\X3)

8 U.S.C. § 1231(b3)(A)

8 U.S.C. § 1252 (b)

Other Authorities

Stern & Gressman, Supreme Court Practice

EW a oakcscicciccsciccsn, OR ore eee 4

PETITION FOR REHEARING

The Petitioner, Rakesh Patel, (hereinafter referred

to as the “Petitioner”, respectfully moves this Court

for an order 1) vacating its denial of the Petition for

Writ of Certiorari entered on February 19, 2008, and

2) granting the Petition. As grounds for this motion,

the Petitioner restates the argument made in his

Writ for Certiorari as well as provides the following

additional argument to meet the criteria to grant a

petition for rehearing.

CERTIFICATION

There are no cases or proceedings related to this

case pending at this time in any United States

Court. However, 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.

ARGUMENT IN SUPPORT OF PETITION FOR

REHEARING

Rule 44 of the Rules of the Supreme Court makes

clear that rehearing from a denial of a petition for

writ of certiorari shall only be granted in instances

in which “intervening circumstances of a substantial

or controlling effect" exist or to "other substantial

grounds not previously presented." Rule 44.2, Rules

of the Supreme Court. This Petition for Rehearing is

being timely filed within the twenty-five day period

of the order denying certiorari.

As previously stated, petitions for rehearing of an

order denying certiorari are generally granted in two

instances. In our facts, the Petitioner has met both

grounds for rehearing.

A. The Petitioner has alleged inter-

vening circumstances of a substan-

tial or controlling effect.

The night to petition for rehearing of an order de-

nying certiorari "is not to be deemed an empty for

mality as though such petitions will as a matter of

course be denied. . . . Accordingly, on an appropriate

showing that a substantial matter ... is to be pre-

sented, appropriate opportunity should be given for

doing so." Flynn v. United States, 75 S. Ct. 285, 286

(1955) (Frankfurter, J., in chambers). Relying on this

principle, the Court has not hesitated to postpone

reconsideration of orders denying certiorari where

deferral advances the interests of justice and judicial

efficiency. See United States v. Ohio Power Co., 351

U.S. 980 (1956) ("“continuling]" petition for rehearing

until the following Term); see also United States v.

Ohio Power Co., 353 U.S. 98, 99 (1957) (explaining

deferral of rehearing petition on ground that "[wle

have consistently ruled that the interest in finality

of litigation must yield where the interests of justice

would make unfair the strict application of our

rules"); Vail Mfg. Co. v. NLRB, 68 S. Ct. 32 (1947)

(deferring consideration of petition ‘or rehearing of

order denying certiorari).

This Court and courts of appeals have deferred

resolution of petitions for rehearing where a decision

in pending state court proceedings could alter the

analysis. See Stern & Gressman, Supreme Court

Practice 311 (8th ed. 2002) (discussing deferral of pe-

titions for certiorari “until an imminent state court

decision is rendered on a controlling issue of state

law"); Rumsey Indian Rancheria of Wintun Indians

v. Wilson, 99 F.3d 321, 322 (9th Cir. 1996): cf. Bakery

& Pastry Drivers & Helpers Local 802 v. Wohl, 315

U.S. 769, 773 (1942) (granting petition for rehearing

on the ground of an intervening decision from a state

court). Similarly, the courts of appeals have deferred

consideration of petitions for rehearing in cases

where this Court has committed to resolve a poten-

tially determinative legal question. In fact, the

courts of appeals even grant petitions for deferral in

highly contingent cases where this Court is merely

considering whether to grant a petition for certiorari

in a case that might present similar legal questions.

Barrera-Leyva v. INS, 653 F.2d 379, 380 (9th Cir.

1981); Davis v. Roadway Express, Inc., 621 F.2d 775,

776 (5th Cir. 1980).

Since the crux of the Petitioner’s claims involved

violations of federal statutes, more specifically im-

migration laws and the United States Constitution,

the Petitioner’s complaint was properly filed in the

federal courts. Instead of focusing upon the disturb

ing facts, the Immigration Court and Third Circuit

erroneously denied a proper hearing on the merits.

Given the ever changing circumstances regarding

immigration, the Petitioner’s Writ should have been

granted.

Instead of reviewing the extenuating circum-

stances, the Petitioner’s writ was denied on a minor

technical issue. The Third Circuit and the BIA de-

nied the Petitioner’s constitutional rights to a fair

hearing and denied the evidentiary process. The Pe

titioner should have been allowed Lo present evi-

dence at another proceeding. A motion to reopen

seeks to reopen proceedings so that new evidence

can be presented and a new decision entered on a

different factual record, normally after a further evi-

dentiary hearing. Matter of Cerna, 20 I&N Dec. 399

(1991).

Public policy mandates that any alleged technical-

ity defect does not justify the Petitioner being re-

turned to India where he will be persecuted by the

militia, guerillas, and family. 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 technicality issue. 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, rclig-

ion, nationality, membership in a particular social

group, or political opinion[.]" See 8 U.S.C.

$1101(aX42)(A); §241(b\(3) of the INA, 8 USC.

§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.

The Petitioner proved, and could have presented

additional evidence if he was given the opportunity

of an evidentiary hearing, 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). An applicant has the burden of

establishing eligibility for withholding of removal

and relief under the United Nations Convention

Against Torture by his or her own credible testi-

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

Cir. 2003) (citing 8 _C.F.R. §208.13, 208.16). The

Third Circuit deviated from other circuits and other

jurisdictions and placed an impermissible burden

upon the Petitioner to establish a subjectively genu-

ine and objectively reasonable fear of persecution.

See Gao v. Ashcroft, 299 F.3d 266, 273 (3d Cir. 2002).

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).

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

S.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 960,

964 (9° Cir. 2002), quoting, Colmenar v. I.N.S., 210

F.3d 967, 971 (9" Cir. 2000).

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 rights 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).

Obviously as the disparity of the circuits height-

ened for the necessary burden of proof for asylum

under the Convention Against Torture Act, the pur-

pose of direction from the Supreme Court is neces-

sary. By failing to conduct evidentiary hearings, the

Petitioner’s constitutional due process rights were

violated.

The Petitioner has alleged intervening circum-

stances of a substantial or controlling effect, that is

the burden of proof in Convention Against Torture

cases.

The Petitioner’s Writ for Certiorari

must be granted for or to "other

substantial grounds not previously

presented."

There are other substantial grounds that this

Honorable Court must consider in reviewing the Pe-

titioner’s Writ for Certiorari. A burden of proof that

meets constitutional standards must be uniform in

applying the United Nations Convention Against

Torture (“CAT”).

The Third Circuit never examined the constitu-

tional issue. For relief under the CAT, the Petitioner

must prove that it is "more likely than not that

he...would be tortured if removed to the proposed

country of removal", 8 C.F.R. $208.16(c)(2), or more

likely than not that, if removed, he would be tor-

tured "by or at the instigation of or with the consent

or acquiescence of a public official or other person

acting in an official capacity." 8 C.F.R. $208.18. In

10

order to gain withholding of removal under 8

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

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

persecuted if they are removed. INS v. 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 vu. Ashcroft,

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

pattern or practice has to be "committed by the Gov-

ernment or forces the Government is either ‘unable

or unwilling’ to control." Abdulrahman_v. Ashcroft,

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

Even though the Petitioner submitted substantial

evidence with supporting documentation of perilous

conditions if he was removed, the Petitioner was de-

nied an evidentiary hearing. An asylum applicant

bears the burden of supporting his claim through

credible testimony. Gao v. Ashcroft, 299 F.3d 266,

272 (3d Cir.2002). The Petitioner met his burden of

proof by substantial and credible evidence that there

was a strong likelihood that he would be persecuted,

harassed and threatened upon his return to India.

1]

The Petitioner should have been granted asylum.

He had "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)(1)@ii)(A), (B). The

Petitioner argued in light of the Board's finding that

the presumption of well-founded fear was rebutted, 8

him to demonstrate either compelling reasons why

he should not return to her country or that he would

suffer serious harm upon removal.

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. The Third Circuit’s opinion was

in deviation of In re H, 211. & N. Dec. 337, 348, 1996

WL 291910 (BIA 1996); 42 U.S.C. §1101, et. seq.;

Matter of Mogharrabi, 191 I.N. 439 (1987); Matter of

B-, 21 1&N Dec. 66 (BIA 1995); Matter of S- P-, 21

I&N Dec. 486 (BIA 1996); Awolesi v. Ashcroft, 341

F.3d 227 (2003); Sotto v. INS, 748 F.2d 832, 836 (3d

Cir.1984).

The decisions below are conflicting. On the one

hand, the BIA and Third Circuit acknowledged the

applicable law. But when the Petitioner did in fact

meet the threshold as established in Cardoza-

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

434 (1987) (a well-founded fear of an event can be

when there is less than a 50% chance of the occur-

rence taking place), an enhanced and impermissible

burden was suddenly imposed.

The Supreme Court and lower courts never con-

sidered the important issue of burden of proof.

Moreover, the affect of a pending application before

the Department of Immigration should stay any re-

moval proceedings due to a matter of public policy.

As such, given this additional substantial ground,

this Motion must be granted and the merits of the

Petition and Motion be addressed by this Court.

13

CONCLUSION

or the reasons set forth above, as well as those

contained in the petition for writ of certiorari, the

Petitioner prays that this Honorable Court vacate

the order of denial and grant the rehearing of the

Writ of Certiorari.

Respectfully submitted,

Rakesh Patel.

The Petitioner

Pro Se

CERTIFICATE OF PETITIONER

The Petitioner certifies that this Petition for Re-

hearing is presented in good faith and not for delay

and is restricted to the grounds specified in Rule

44.2

Respectfully submitted,

bth 2 fo

Rakesh Patel

The Petitioner

Pro Se