In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3189

NAZIRMOHAMMAD I. VAHORA,

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. A 088-558-982

ARGUED MAY 31, 2012—DECIDED FEBRUARY 25, 2013

Before MANION, KANNE, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Nazirmohammad I. Vahora

is a citizen of India. He is also Muslim. In 2002, a train

caught fire in Gujarat, India, where he lived. Many

Hindu pilgrims and activists were killed, and violence

between Hindus and Muslims followed. Vahora testified

that he and several Muslim friends were shot in the

days after the train fire by local Hindu religious or
2 No. 11-3189

political leaders, and that these persons continued to

pursue him throughout India in the four years he

remained there. The Board of Immigration Appeals

(“BIA”) affirmed the immigration judge’s conclusion

that the persecution of which Vahora complains was not

carried out by persons the government of India was

unable or unwilling to control. While evidence in the

record reflects that the government of India has taken

steps to prosecute persons alleged to be responsible for

the violence in the aftermath of the train burning, other

than a conversation with a police officer whom he

said visited him in the hospital and advised him to tell

people that he was shot randomly during a police

fight, Vahora never sought help from any authorities.

Because substantial evidence supports the BIA’s determination that Vahora was not persecuted by persons

the government of India is unable or unwilling to

control, we deny the petition for review.

I. BACKGROUND

The immigration judge accepted Vahora’s testimony

as true for the purposes of its decision, and the narrative

that follows reflects Vahora’s account. On February 27,

2002, at least fifty-eight people were killed after a

train caught fire near the Godhra train station in

Gujarat, India. Most of those killed were Hindu

pilgrims and activists. The tragedy led to increased

tension between Hindu and Muslim groups in the

region, as there was suspicion that a mob of Muslim

individuals had attacked the train and was responsible
No. 11-3189 3

for the fire. A period of violence and riots followed,

resulting in the death of nearly 1,000 people.

Vahora is Muslim. He testified at a hearing before

an immigration judge that on March 3, 2002, he and

three of his friends were sitting at a teahouse in Gujarat

when two Hindu religious and political leaders, accompanied by four or five police officers, approached

Vahora and his friends. He said the two, whom he described in his statement as religious and political

leaders, were Sandeep Patel, the head of a local unit of

the Bharatiya Janata Party (“BJP”), a political party, and

Ketan Mistry, the local leader of the Vishwa Hindu

Parishad (“VHP”), a Hindu nationalist organization.

Vahora testified that the Hindu leaders threatened

him and said the country was meant for Hindus and not

for Muslims. They then blamed Vahora and his friends,

who were also Muslim, for the burning of the train.

Vahora said that after one friend denied that allegation,

Patel took a gun from one of the policemen and fatally

shot Vahora’s friend. Vahora stated that his other friend

tried to resist, but that Patel shot and killed him as

well. Vahora testified that Patel then shot him in the

chest and left, thinking Vahora had died.

Vahora recounted that while he recovered in the

hospital, a police officer named Mr. Bhatt came to interview him. Vahora said that after he told Bhatt what

had happened, Bhatt told him to tell everyone that

police were fighting at the time and that he just got

caught by a bullet. Vahora said that he complied with

Bhatt’s suggestion and stated in a report that he was

struck by a “police bullet.”
4 No. 11-3189

Soon after Bhatt’s visit, Vahora stated that Patel came

to the hospital, displayed a gun, warned him to maintain

his story about being injured in a “police firing,” and

threatened to kill him if he did not cooperate. Vahora

said he feared for his life and so did not report the

incident to the police. Vahora stated that he did not

leave his home for approximately five months after he

left the hospital because he was afraid. He said that

when he did leave his home, he encountered Patel at a

grocery market and Patel threatened him, asking him

whether he wanted to survive. Scared for his safety,

Vahora said he left Gujarat to stay with his sister in

Mumbai in July 2002.

Vahora claimed that one year later, in August 2003, he

ran into Mistry in Mumbai. Vahora stated that he

gave Mistry false information when asked his current

address, but that Mistry started visiting his home

looking for him and even called him one night to tell

him they were going to kill him. Vahora stated that two

days later, the leaders, along with eight to ten boys,

knocked him off his bike and hit him, and that he was

only saved when local shopkeepers and taxi drivers

rushed to assist him.

Vahora stated that he then moved to Delhi and began

working at a hotel there in November 2003. Two years

later, he said, Patel and some others came to the hotel’s

front desk and asked for him. He said that when he

saw one with a knife, he ran outside, and they assaulted

him but ran away when the hotel owner came to the

scene. Vahora said that he returned to his hometown
No. 11-3189 5

because he missed his wife and brothers, saw the

leaders when he and his wife were out for a walk, and

was again saved when shopkeepers came to his rescue.

Vahora testified that he left for Guatemala a few days

later and arrived there in February 2006. A person there

helped him travel through Mexico and then into the

United States, where he said he arrived on June 29, 2006.

He filed his application for asylum on June 28, 2007. A

hearing took place before an immigration judge. The

immigration judge gave Vahora “the benefit of the

doubt” and concluded that he had timely applied for

asylum within one year of his entry into the United

States. Although the immigration judge stated that

Vahora set forth a “somewhat improbable, or at least

implausible” story that two local Hindu leaders continued to pursue him even after he left Gujarat, the immigration judge declined to make an adverse credibility

finding. Instead, the immigration judge ruled that even

accepting Vahora’s testimony as true, Vahora had not

presented a cognizable claim of past persecution or

shown that he had a well-founded fear of future persecution because he did not demonstrate that the

Indian government was unable or unwilling to protect

him. On appeal, the Board of Immigration Appeals affirmed, also ruling that Vahora failed to show that he

suffered past persecution or that he had a well-founded

fear of future persecution by a group that the government is unable or unwilling to control. Vahora now

petitions this court for review.
6 No. 11-3189

II. ANALYSIS

The Board of Immigration Appeals issued its own

opinion rather than simply adopting the immigration

judge’s decision, and we will uphold the BIA’s determination so long as it is supported by substantial evidence. Zhou Ji Ni v. Holder, 635 F.3d 1014, 1018 (7th

Cir. 2011). Under this standard, we let the agency’s determination stand “if it is ‘supported by reasonable, substantial, and probative evidence on the record considered

as a whole.’ ” Raghunathan v. Holder, 604 F.3d 371, 376

(7th Cir. 2010) (citations omitted).

To receive asylum, Vahora bears the burden of proving

that he is a “refugee” within the meaning of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(42).

8 C.F.R. § 1208.13(a). A “refugee” under the INA is a

person who is unable or unwilling to return to his home

country, “and is unable or unwilling to avail himself or

herself of the protection of [ ] that country because of

persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C.

§ 1101(a)(42). When a petitioner establishes that he was

the victim of past persecution, a rebuttable presumption that he has a well-founded fear of persecution in

the future results. 8 C.F.R. § 208.13(b)(1); Zhou Ji Ni,

635 F.3d at 1018.

To constitute persecution, the harm suffered must be

sufficiently severe. The conduct in question must rise

above the level of mere harassment; the conduct must

“threaten death, imprisonment, or the infliction of sub-
No. 11-3189 7

stantial harm or suffering.” Sharif v. INS, 87 F.3d 932,

935 (7th Cir. 1996). Vahora testified that he was shot,

which is unquestionably sufficiently severe. The government also does not contest that Vahora was shot “on

account of” his religion.

That does not end the inquiry, however. A petitioner

will not receive asylum if he could relocate to another

part of his country of nationality and it would be reasonable under the circumstances to expect him to do so.

8 C.F.R. § 208.13(b)(2)(ii); Oryakhil v. Mukasey, 528 F.3d

993, 998 (7th Cir. 2008). In addition, and most relevant

here, “persecution” under the INA does not encompass

purely private actions. Jonaitiene v. Holder, 660 F.3d

267, 270 (7th Cir. 2011). The INA does not afford relief,

for example, to “those who are unfortunate enough to

be victims of ordinary crime or generalized chaos.” Escobar

v. Holder, 657 F.3d 537, 543 (7th Cir. 2011). Rather, to

receive protection under the statute, the persecution

must be inflicted by the government, or by private

actors whom the government is unable or unwilling to

control. Jonaitiene, 660 F.3d at 270. It was on this basis

that the immigration judge, and later the BIA, denied

Vahora’s asylum request.

Vahora maintains that the BIA wrongly concluded

that he did not establish that he was persecuted, or had

a well-founded fear of future persecution, from persons that India’s government is unable or unwilling to

control. Vahora predicates his claim of persecution on

the actions of Patel and Mistry. He did not suggest in

his testimony that Patel or Mistry worked for India’s
8 No. 11-3189

government, nor did he present any evidence that they

did. He instead described them as local leaders of a

political party and a Hindu nationalist organization.

Because Vahora alleges persecution by private actors, to

receive asylum he must show that India’s government

“either condones [the persecution] or is helpless to prevent it.” Hor v. Gonzales, 421 F.3d 497, 501 (7th Cir. 2005).

The BIA’s conclusion that Vahora failed to show that

the government of India was unable or unwilling to

protect him is supported by substantial evidence. The

State Department’s Country Report on Human Rights

Practices for 2008 reflects that the government of India

has taken steps to punish the persons responsible for

the violence in Gujarat in 2002, including local leaders of

the BJP and VHP and local police officers. But Vahora

did not seek assistance from the authorities and never

filed any sort of report of what he now says happened

to him.

Vahora made no attempt to seek protection from the

federal or state government during the four years he

remained in India prior to his February 7, 2006

departure, even after he relocated to different cities

throughout India in an attempt to stay away from local

BJP and VHP leaders from his hometown. He also did

not complain to anyone in authority about his assailants

after the incidents in Mumbai and Delhi. Although

Vahora speculated that reporting to authorities would

have been futile, substantial evidence supports the

BIA’s determination otherwise. Cf. Ornelas-Chavez v.

Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006) (stating an
No. 11-3189 9

applicant need not have reported the persecution if

doing so would have been futile or subjected him to

further abuse). The BIA pointed to the 2008 Country

Report which indicates that the Indian government was

continuing efforts to find those persons responsible

for violence in 2002 following the train burning at

Godhra, that police officers were being tried for their

alleged roles in the violence, that political leaders had

been arrested in connection with the riots, and that a

Special Investigation Team had been instituted to look

into the cases relating to the train burning and resulting

communal riots.

More specifically, the Report states that the Supreme

Court had followed the recommendations of a Central

Review Committee and directed in 2004 that 134

persons charged under a different statute for the 2002

Gujarat train burning be charged under the Penal Code.

It also recounted that in 2003 the Court had instituted a

Special Investigation Team to reinvestigate the Gujarat

train cases, and that within six months had arrested

eleven people allegedly connected to the 2002 train

burning and resulting communal riots. Significantly,

among those arrested were local leaders of the BJP and

VHP. The Country Report also notes that 41 police

officers were being tried for their alleged roles in the

violence, another fact relevant to Vahora’s case to the

extent he is suggesting that police officers present at

the scene of his shooting are pertinent to his claim.

The Country Report further states that the Supreme

Court was continuing its efforts to find those responsible
10 No. 11-3189

for the violence following the train burning and that the

Court had asked Gujarat police to review the closure

of numerous cases without investigation, though the

police concluded that a majority could not be reinvestigated due to lack of witnesses. It also noted that the

National Human Rights Commission and the National

Commission for Minorities, two government entities,

had intervened in several high-profile cases, including the

2002 anti-Muslim violence in Gujarat. Although many

persons responsible for the 2002 violence still have not

been brought to justice, the Country Report reflects that

the Indian government has taken steps to punish

offenders and that it neither condones the persecution

Vahora fears nor is powerless to prevent it. And

although we have cautioned about overreliance on

State Department reports, this is not a case where the

immigration court blindly relied on such reports while

ignoring other evidence in the record. Cf. Gomes v.

Gonzales, 473 F.3d 746, 756 (7th Cir. 2007).

The BIA was also not persuaded by the conversation

Vahora claims he had with a police officer in his

hospital room soon after the shooting. Vahora testified

that while recovering in the hospital, an officer came

to see him and advised him not to tell the truth about

who had shot him and instead to say that he had been

shot during a random police firing. Vahora contends

that this officer’s failure to protect him demonstrates

that the Indian government was unable or unwilling to

protect him. Other than this conversation with a local

police officer, however, Vahora never attempted to

obtain help from authorities in the four years between
No. 11-3189 11

the shooting incident and his departure from India,

even after he relocated to different states in India and

even though he said that the threats continued.

Although police apathy can indicate a government’s

unwillingness or inability to protect an applicant, the

BIA reasonably determined that the single conversation

with a non-supervisory police officer in the hospital

did not mean that the government was unable or

unwilling to protect Vahora. In contrast, for example, in

Guchshenkov v. Ashcroft, 366 F.3d 554, 557-58 (7th Cir.

2004), a petitioner complained to police after he was

beaten the night of his wedding by persons who told

him he should not have married someone from a

different nationality. When he went to the police, they

responded with indifference. After he was beaten a

third time and suffered a lacerated liver, he went to

the police station seven times but did not receive help

and was told a year later that his case had been lost

from the archive and that the police were overloaded

with other cases. Id. at 556.

We also found evidence that a government was unable

to protect a petitioner in Hor, 421 F.3d at 502, a case the

BIA noted in its decision in Vahora’s case. The applicant

in Hor sought help from the Algerian military but was

told it could not protect him. He then sought help from

the courts but received only a decision recommending

that he be cautious and keep a low profile. We found

that to be evidence that the government of Algeria was

incapable of protecting the applicant. See id.; see also

Pramatarov v. Gonzales, 454 F.3d 764, 766 (7th Cir.
12 No. 11-3189

2006) (“There is some evidence of governmental complicity, however, in the reaction of military officers to

Pramatarov’s complaints about being beaten and humiliated because of his ethnicity and in the refusal of the

police to take action after he and his wife were beaten

outside the restaurant.”).

We certainly do not suggest that a person must seek and

be denied assistance seven times to receive asylum. But

Vahora had never sought and been refused police assistance nor had he ever made a report to the police

or government authorities of what he now claims happened to him. Cf. Ingmantoro v. Mukasey, 550 F.3d 646, 650

(7th Cir. 2008) (denying petition where no evidence

presented suggesting that police refused to respond to

filed reports and noting fact that police did not

prevent harm on one occasion does not compel a

finding that they were unable or unwilling to prevent it).

And the Country Report in the record suggests that the

government is not unwilling or unable to take steps to

address the persecution of which Vahora complains

when it is notified.

Moreover, we agree with the government that

Vahora’s testimony undermines his claim that the Indian

government was unable or unwilling to control his assailants. He testified that Patel and Mistry were pursuing

him because they feared he would implicate them in

the March 3, 2002 shooting, including to the Special

Investigation Team set up by the government to investigate the violence after the train burning. Vahora also

wrote in his written statement that they threatened to
No. 11-3189 13

harm him for revealing their connection to the shootings.

But this motive for seeking to silence Vahora suggests

that Patel and Mistry indeed feared facing consequences

from the government for their crime. In other words,

Vahora’s assertion that Patel and Mistry were after him

to avoid being implicated in the shooting belies his argument that the government of India was not willing or

able to hold Patel and Mistry accountable or protect

him from persecution. After reviewing the record, we

conclude that substantial evidence supports the BIA’s

conclusion to deny Vahora asylum.

Vahora also sought withholding of removal. Because

that standard is more stringent than the standard for

asylum, an applicant who does not establish eligibility

for asylum necessarily cannot meet the higher standard

for withholding of removal. Bueso-Avila v. Holder, 663

F.3d 934, 939 (7th Cir. 2011). This request therefore fails

as well.

Finally, Vahora challenges the BIA’s denial of his

motion to reopen, a decision we review for an abuse of

discretion. See Moosa v. Holder, 644 F.3d 380, 384 (7th

Cir. 2011). A motion to reopen proceedings will not be

granted unless the “evidence sought to be offered is

material and was not available and would not have

been discovered or presented at the previous proceeding.” 8 C.F.R. § 1229a(c)(7)(C)(ii); see 8 C.F.R. § 1003.2(c)(1);

Moosa, 644 F.3d at 384. Here, the only new evidence

Vahora offered was a Wikipedia article on Gujarat

and a copy of the State Department’s 2004 International

Religious Freedom Report. The 2004 report was not new
14 No. 11-3189

evidence, as the 2008 International Religious Freedom

Report was already in the record. And the Wikipedia

article was undated, so Vahora failed to show it contained new information. The BIA did not abuse its discretion when it denied the motion to reopen.

III. CONCLUSION

The petition for review is DENIED.

2-25-13