# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued March 3, 2009

Decided April 2, 2009

Before

WILLIAM J. BAUER, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

DIANE P. WOOD, Circuit Judge

No. 08

‐ 2088

BHAVESHBHAI PATEL,

Petitioner

,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent

. Petition for Review of an Order of the

Board of Immigration Appeals

No. A97

‐ 333

‐ 104

O R D E R

Bhaveshbhai Patel fears that, if he returns to his native India, he will be persecuted

by either the Hindus or the Muslims for testifying—or not testifying—in a possible criminal

trial about a violent murder he witnessed in which five Hindus killed a Muslim man. Facing

an order of removal, Patel applied for withholding of removal and protection under the

Convention Against Torture (“CAT”), claiming fear of religious persecution. The IJ denied

Patel’s application, concluding that the persecution Patel feared was based not on his

religion, but rather the retribution he was likely to encounter as a result of being forced to NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 08

‐ 2088 Page 2

testify. The BIA affirmed. Because substantial evidence supports the BIA’s decision, we

deny Patel’s petition for review.

Until he came to the United States, Patel had lived his entire life in Gujarat, a western

state in India that borders Pakistan that has been plagued by ethnic violence. See generally

Martha C. Nussbaum, The Clash Within: Democracy, Religious Violence, and India’s Future

(2007). In 1999 a riot broke out in Gujarat, and during the riot Patel witnessed five Hindus

burn a Muslim man alive. Patel took no part in the riot and afterwards went directly home,

where police later approached him and confirmed that he was a witness to the event.

Several months later the government ordered him to testify about the murder. After he

received this request, Patel says that he was visited by individual members of the Hindu

and Muslim communities. Hindus warned that if he testified against fellow Hindus, he

would be shunned by his community. Muslims warned that if he refused to testify, he and

his family would be harmed—and specifically they threatened to kidnap his sister and rape

her. Fearing reprisal no matter what he did, Patel decided to leave India. After staying with

a friend in a small village outside Bombay for six months, he left for America.

In 2000, at the age of 21, Patel entered the United States near El Paso, Texas, without

inspection or a visa. It is unclear from the record how Patel came to the attention of the

Department of Homeland Security (DHS), but DHS caught up with him in 2005 and issued

a warrant for his arrest based on his status as an illegal alien. After his arrest, Patel filed an

application for asylum, withholding of removal, and CAT protection. In his application he

claimed that he feared returning to India because of harm he faced from either the Hindus

or Muslims for any role he might play as a witness to the murder. Patel acknowledged at a

preliminary hearing that he had not filed his asylum application within one year of entering

the United States, and therefore was eligible only for withholding of removal and CAT

protection.

Before Patel’s removal hearing, the government supplemented the record with the

2005 International Religious Freedom Report and 2005 Report on Human Rights Practices

from the Department of State. These reports confirmed that indeed tensions between

Hindus and Muslims ran high—particularly so in Gujarat, where the Hindu

‐ dominated

government was at times unable to stem the tide of Hindu

‐ Muslim violence. The Religious

Freedom Report documented the investigation and prosecution of 21 Hindus accused of

burning several Muslims in Gujarat after the notorious 2002 riots. See Nussbaum, supra, The

Clash Within

, ch. 1. After the trial, more than half of the 73 witnesses recanted their stories

after having been threatened—confirming Patel’s claim that pressure may be brought to

bear on witnesses in inter

‐ religious cases. But the report also noted that the Gujarat

government has been generally more conscientious in dealing with Hindu

‐ Muslim

prosecutions, and to that end, has managed to convict 13 Hindus in connection with anti

‐No. 08

‐ 2088 Page 3

Muslim violence and has asked that nine high

‐ profile cases involving Hindu

‐ Muslim

violence be transferred out of Gujarat in 2002.

At his removal hearing Patel testified that he feared persecution from the Hindu and

Muslim communities if he returned to India, but he provided few details to corroborate his

claim. He testified that after the Hindus and Muslims threatened him, he “became

completely confused” about whether to testify and, unable to decide, chose to leave India.

Patel did not describe any incidents of actual abuse, nor did he mention any threats based

on his religion per se. Rather his fear centered on his decision whether to testify: “[I]f I don’t

go to the court the Muslims will harm me and if I go to the court then the Hindus will harm

me by putting me out of my religion.” Patel’s attorney later clarified that Patel’s fear of

persecution was religiously based because, he contended, if Patel were Christian rather than

Hindu, he would not be fearful of testifying. As the lawyer explained it, the principal

animosity lies between the Hindu and Muslim groups, not others; thus a Christian’s act of

testifying in support of the Muslim victims (unlike a Hindu’s) would not be seen as

traitorous. Patel added that he believed he would be forced to testify if he returned and that

the threat posed by Hindus and Muslims is ongoing. He noted that his parents, who are still

living in India, informed him that Muslims continue to inquire about his whereabouts and

that they are fearful of the Muslims who visit them. Finally, Patel acknowledged that he had

never gone to the court and, in fact, did not even know if an official prosecution was

underway.

The IJ denied Patel’s requests for withholding of removal and CAT relief. Regarding

Patel’s withholding claim, the IJ concluded that he did not qualify because he failed to

prove that it was more likely than not he would be persecuted on account of his religion if

he returned to India. The IJ questioned Patel’s credibility, finding it implausible that

“unknown Muslims,” motivated by an event that occurred several years ago, would go to

his parents’ home to inquire of his whereabouts. And even if Patel’s claims were credible,

the IJ added, he had not alleged a fear of persecution “on account of” a protected ground

such as religion. Rather, the “primary motivation” for Patel’s flight from India was his fear

of testifying as a witness in a possible criminal trial. The IJ also characterized Patel’s fear as

a fear of “general violence,” and noted that Patel had not pointed to any specific

circumstances he faced that would qualify him for relief. Finally, the IJ concluded that Patel

had not established that the government of India was either unwilling or unable to quell

any violence Patel might face due to his testimony. For the same reasons, the IJ ruled that

Patel failed to meet the higher standard of proof required for CAT protection.

Patel appealed to the Board of Immigration Affairs, which affirmed the decision of

the IJ. The BIA too thought that even assuming the truthfulness of Patel’s testimony, he did

not show he had a well

‐ founded fear of future persecution based on a protected ground.No. 08

‐ 2088 Page 4

The BIA reasoned that Patel feared persecution based on his decision whether to testify—a

fear only tangentially connected to his religion—and that this fear did not qualify him for

relief from removal. The BIA also agreed with the IJ’s conclusion that Patel was ineligible

for CAT relief because he had failed to demonstrate that it was “more likely than not” that

he would be tortured upon his return to India.

The arguments in Patel’s petition for review consist mostly of conclusory statements

that baldly assert his right to relief. With respect to his withholding claim, he argues

generally that the evidence established that it was more likely than not that he would be

persecuted on account of his religion were he to return to India. An alien qualifies for

withholding of removal if he shows that it is more likely than not that he will face future

persecution based on his race, religion, nationality, membership in a particular social group,

or political opinion. 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b)(2); see Musollari v.

Mukasey

, 545 F.3d 505, 508 n.2 (7th Cir. 2008).

Taking Patel at his word that he will either be exiled from the Hindu community if

he testifies or attacked by the Muslim community if he refuses to do so, we understand that

his religion has some bearing on his situation. As a Hindu who would be supporting

Muslim claims of violence, such testimony might make him unpopular. Nevertheless, the

BIA reasonably could conclude that the triggering event that he fears is the act of testifying.

There is no evidence that Hindus in general are a disfavored group in Gujarat or, for that

matter, anywhere else in India. This court has explicitly held that a desire not to testify as a

material witness to a crime—even a witness to a political or religious crime—does not

qualify as a protected basis for asylum or withholding of removal. See Djouma v. Gonzales

,

429 F.3d 685, 688 (7th Cir. 2005); see also Carmenatte

‐ Lopez v. Mukasey

, 518 F.3d 540, 542 (8th

Cir. 2008) (holding that “alleged status as a witness or informant, even with respect to a

political crime, would not qualify [petitioner] for asylum or withholding of removal”).

Specifically, this court reasoned in Djouma : “Being a material witness, even to a political

crime (such as insurrection), is no more a status that the asylum law protects than being a

criminal suspect is.” 429 F.3d at 688. Were we to recognize apprehension like Patel’s as

grounds for withholding of removal, we would indirectly be hampering the legitimate

efforts of the Gujarati government to prosecute the perpetrators of these kinds of incidents.

We conclude, therefore, that while Patel’s dilemma may be a sympathetic one, it is not

sufficient to warrant relief from removal.

Patel also argues without elaboration that it is more likely than not that he will be

tortured if he returns to India, and thus he is qualified for CAT protection. He correctly

characterizes the legal standard for CAT: to be eligible for CAT relief an alien must prove

that it is more likely than not that he will be tortured by, or at the acquiescence of, the

government from which he seeks protection. 8 C.F.R. § 1208.18(a)(1); see also Huang v.No. 08

‐ 2088 Page 5

Mukasey

, 525 F.3d 559, 564 n.4 (7th Cir. 2008). He has not presented one shred of evidence,

however, that the Indian government will turn a blind eye to torture inflicted upon him as a

result of his decision whether to testify. Because Patel presented no evidence connecting the

threats of his attackers to the government, he failed to meet his burden under CAT. See

Pavlyk v. Gonzales

, 469 F.3d 1082, 1090 (7th Cir. 2006).

Accordingly, we D ENY Patel’s petition for review.