Bharat Thackar v. Attorney General of the United States of America

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-2700
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BHARAT THACKAR,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A089-252-623)
Immigration Judge: Honorable Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 23, 2013
Before: AMBRO, JORDAN and BARRY, Circuit Judges
(Opinion filed: January 31, 2013)
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OPINION
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PER CURIAM
Bharat Thackar seeks review of his final order of removal. Although we write
primarily for the parties, who are familiar with the facts of this case, we will describe the
background in some detail because the rulings and arguments at different stages of the

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agency proceedings are relevant to our decision here.
The Government charged Thackar, a citizen of India, as removable for having
overstayed his non-immigrant visa. Thackar admitted that he overstayed the authorized
period of admission, and the Immigration Judge (“IJ”) upheld the charge. Thackar, a
lawyer in his native country, sought asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”) based on his interactions with members
of a group called Students Islamic Movement of India (“SIMI”) after he represented a
plaintiff in a lawsuit (relating to a land dispute) against a defendant who was a member of
SIMI.
The IJ found Thackar credible, then ruled that Thackar had shown that he was
mistreated because of a private dispute, not because of his religion, social group, or other
ground on which asylum may be granted. Although the IJ noted that Thackar had stated
on cross-examination that his Hinduism was an additional reason for the attack, the IJ
concluded that it was not the central reason and “did not play any part in this dispute as
far as [the IJ could] tell.” The IJ also stated that Thackar had not shown the government
of India was unable or unwilling to control SIMI (or even provided documentation that
SIMI existed). The IJ further held that, even if Thackar had suffered past persecution, he
could live safely elsewhere in India, given its vast population and Hindu majority. The IJ
denied the asylum and withholding claims on these grounds, and also ruled that Thackar

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did not meet his burden for CAT relief.1
Thackar appealed the IJ‟s decision to the Board of Immigration Appeals (“BIA”).
The BIA remanded the matter because part of the record (an asylum application and
affidavit) was missing. Without it, the BIA could not determine if the IJ had addressed
all of Thackar‟s claims, including a possible claim of imputed political opinion that the
Department of Homeland Security had mentioned. The remand was for further
proceedings and the entry of a new decision. The IJ did not provide more analysis;
instead, he issued an order to certify the record to the BIA and submitted the missing
documents.
The BIA noted that the IJ had completed the record of proceedings pursuant to the
remand and then dismissed the appeal. The BIA affirmed the credibility finding in favor
of Thackar and agreed with the IJ that Thackar had not met his burden of proof for
asylum because he did not demonstrate that a central motivation for SIMI‟s interest in
him was his political opinion, religion, or other protected characteristic. The BIA held
also that Thackar had not met the higher standard for withholding and ruled that he had
waived his CAT claim by not presenting any factual or legal argument about it.
Thackar then filed a motion entitled “motion to reconsider claim for asylum and
withholding of removal.” Thackar argued that he needed only to have proved that the
persecution he suffered was motivated in part by one of the protected grounds. He
1In ruling, the IJ denied Thackar‟s wife‟s derivative application, too; however, Thackar‟s
wife is not a party to the petition for review pending before the Court.

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pointed to a statement in which he averred that he had taken the land dispute case in order
to take a religious and political stand against SIMI. He contended that SIMI targeted him
for his opposition to SIMI‟s political and religious goals, stating that it had a goal of
building a madrasa (an Islamic religious school and/or mosque) on land it had unlawfully
occupied in India. Thackar also contended that the IJ was biased against him. With his
motion, he included an affidavit (not unlike his earlier affidavit) signed in January 2012
and other documents.
The BIA denied Thackar‟s motion. The BIA explained that Thackar, in arguing
that he was entitled to asylum because he established that the mistreatment was motivated
in part by a protected ground, had relied on cases that predated the REAL ID Act
amendments, which require that a protected ground was or will be “one central reason”
for persecution. See 8 U.S.C. § 1158(b)(1)(B)(i). The BIA held that there had been no
error in the application of the “one central reason” standard in Thackar‟s case. The BIA
rejected the claim of IJ bias. The BIA also rejected Thackar‟s motion to the extent that it
was also a motion to reopen.
Thackar presents a petition for review. He claims that the BIA abused its
discretion by ignoring its first decision in failing to address a claim of imputed political
opinion. He also contends that the BIA abused its discretion in concluding that there was
no error in its earlier ruling that Thackar did not show the requisite nexus between the
treatment he faced and the grounds protected by the asylum laws.
We note first that our jurisdiction does not extend to the BIA‟s earlier order

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dismissing Thackar‟s appeal. The earlier order was issued on January 10, 2012, and
Thackar did not file a petition for review of it within the 30 days permitted by statute,
see 8 U.S.C. § 1252(b)(1). Because the time limit is mandatory and jurisdictional, the
Court cannot review the January order. See Vakker v. Att‟y Gen., 519 F.3d 143, 146-47
(3d Cir. 2008). Furthermore, Thackar‟s later petition for review from the order denying
his motion cannot serve as a challenge to the earlier order. See Stone v. INS, 514 U.S.
386, 405 (1995); Nocon v. INS, 789 F.2d 1028, 1033 (3d Cir. 1986). Accordingly, to the
extent that Thackar challenges the degree to which the BIA considered, in its second
order in his case, any claim of imputed political opinion, we cannot review the matter.
We can review the BIA‟s order denying reconsideration.2 See 8 U.S.C. § 1252(a);
Vakker, 519 F.3d at 147. Our review of that order is for abuse of discretion. See Castro
v. Atty‟ Gen., 671 F.3d 356, 364 (3d Cir. 2012) (citation omitted); Guo v. Ashcroft, 386
F.3d 556, 562 (3d Cir. 2004) (citation omitted) (explaining that such a discretionary
decision is not disturbed unless it is found to be arbitrary, irrational, or contrary to law); );
Nocon, 789 F.2d at 1033.
However, in our review of the BIA‟s order, we cannot consider an issue that
Thackar did not raise before the agency. See Lin v. Att‟y Gen., 543 F.3d 114, 121-22 (3d
Cir. 2008). We have outlined above the focus of Thackar‟s motion before the BIA, and
2 We also have jurisdiction over a decision denying reopening, see Cruz v. Att‟y Gen.,
452 F.3d 240, 246 (3d Cir. 2006), but Thackar does not appear to challenge that aspect
of the BIA‟s decision. We note nonetheless that the decision to deny reopening is
supported by the reasons given by the BIA.

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we have also reviewed the motion in more detail. With our knowledge of what Thackar
argues on appeal, we can infer that Thackar may have been trying to approach the issue
of an ignored claim of imputed political opinion when, in his preliminary statement in his
motion to the BIA, he said that there was “no nexus between the Board‟s remand decision
and the current decision.” A.R. 23. However, he failed to articulate this claim before the
BIA, and we have no reason to believe the BIA was on notice that he wanted the BIA to
address a claim of persecution based on imputed political opinion. Accordingly, we
review Thackar‟s nexus claim only as the BIA was presented with it.
The BIA‟s rejection of Thackar‟s argument that a protected ground needed to be
only part of the motivation for any persecution was not contrary to law. The REAL ID
Act amendments superseded earlier analysis that allowed relief on a showing that
persecution was based “at least in part” by a protected ground. See Li v. Att‟y Gen., 633
F.3d 136, 142 n.4 (3d Cir. 2011) (citation omitted). The statute, as amended, now
requires that an asylum seeker show that a protected ground “„was or will be at least one
central reason‟” for persecution. See id. (quoting and emphasizing the language of 8
U.S.C. § 1158(b)(1)(B)(i)); see also Ndayshimiye v. Att‟y Gen. of the U.S., 557 F.3d
124, 130-31 (3d Cir. 2009).
Furthermore, the BIA reasonably concluded that the “one central reason” standard
had been properly applied in Thackar‟s case. Thackar mentioned (without elaboration)
his religion on cross-examination, and, in an early (but unsworn) document he submitted,
discussed his motivation for taking the land-dispute case. The defendant in that suit may

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have been a SIMI member or have had SIMI interests. However, Thackar, in his
testimony and affidavit, essentially described a dispute based on the institution and loss
of a lawsuit. There is support in the record for the conclusion that the defendant in the
land dispute attacked him for representing the plaintiff in the case and attacked him again
when the judge ruled in the plaintiff‟s favor (although Thackar had withdrawn from the
case by that point, the defendant blamed him for the outcome).
For the reasons given above, we will dismiss the petition for review to the extent it
raises issues beyond the scope of our jurisdiction, and we will otherwise deny the petition
for review.

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