Arvindbhai Hargovandas Patel v. Alberto Gonzales

* The Honorable Robert Holmes Bell, Chief United States District Judge for the Western District of Michigan,
sitting by designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0451p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ARVINDBHAI HARGOVANDAS PATEL ,
Petitioner,
v.
ALBERTO GONZALES ,
Respondent.
X---->
,--
N
No. 06-3197
On Petition for Review of an Order
of the Board of Immigration Appeals.
No. A70 777 547.
Submitted: October 19, 2006
Decided and Filed: December 4, 2006
Before: MOORE and CLAY, Circuit Judges; BELL, Chief District Judge.*
_________________
COUNSEL
ON BRIEF: Barry L. Frager, FRAGER LAW FIRM, Memphis, Tennessee, for Petitioner. Allen
P. Grunes, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Petitioner Arvindbhai Hargovandas Patel
(“Patel”) seeks review of the Board of Immigration Appeal’s (“BIA”) decision denying Patel asylum
and voluntary departure under the Immigration and Nationality Act (“INA”).
For the following reasons, we DENY Patel’s petition with respect to his asylum claim, and
REMAND his voluntary departure claim for a ruling by the BIA on whether Patel is entitled to
voluntary departure.
I. BACKGROUND
Patel is a native and citizen of India and practices the Hindu religion. While in India, Patel
was an active member of Rashtriya Swayamsevek Sangh (“RSS”) and Bajrang Dal. The RSS is “an
1

-- 1 of 4 --

No. 06-3197 Patel v. Gonzales Page 2
1 Neither party makes any arguments with respect to the BIA’s denial of withholding of removal.
organization based on Hindu nationalism” that “espouses a return to what it considers Hindu values
and cultural norms.” Joint Appendix (“J.A.”) at 128 (United States Department of State 2003
Country Report on Human Rights Practices for India). Bajrang Dal is the youth wing of RSS.
In the early 1990s, RSS was part of an effort to build a Hindu temple in the town of Ayodhya
on a site on which a mosque stood. The site is holy to some Hindus, including Patel, because they
believe it is the birthplace of Lord Rama. On December 6, 1992, the effort to reclaim the site
culminated in the destruction of the mosque by a group of nearly one million people. After this
incident, violence and riots erupted between Muslims and Hindus. Although the Immigration Judge
(“IJ”) doubted Patel’s veracity, Patel testified that his efforts in building the temple had been
restricted to fund-raising.
Patel testified that he was not present when the mosque was torn down, as he was
incarcerated at the time. The IJ found that his detention was a result of heightened sectarian stress
and tension in India. In fact, Patel stated that he had been arrested a total of three times by the local
police, usually after Patel participated in some public gathering agitating in favor of construction
of the temple. He stated that, on each occasion, he was arrested for a few days and was denied water
(and possibly food) for one or two days.
Patel came to the United States in early 1993, claiming that he left India because of his
involvement in the RSS, and because he was afraid that he would be killed by Muslims in retaliation
for his efforts related to building the temple. Patel filed an application for asylum with the INS in
1993. Although India is majority Hindu, Patel claims that he is still subject to persecution by
Muslims, that the area in which he is from is predominantly Muslim, and that he could not safely
relocate to another part of India, both because the Muslims would find him, and because of language
barriers. In support of this argument, he stated that a man from his village named Mr. Sundhi left
the village and was subsequently murdered.
Patel’s application was not referred to the Immigration Court until January 2004, and Patel’s
hearing before the IJ took place on September 3, 2004. The IJ found that Patel was not eligible for
asylum, withholding of removal, or voluntary departure. The IJ based his decision to deny asylum
on both statutory and discretionary grounds.
Much of the IJ’s decision focused on the finding that, due to his participation in the
destruction of the mosque, Patel was, himself, a persecutor. However, on appeal, the BIA decision
affirmed and adopted all of the IJ’s opinion except insofar as the IJ found that Patel was a
persecutor.
“Where the BIA adopts the IJ’s reasoning, the court reviews the IJ’s decision directly to
determine whether the decision of the BIA should be upheld on appeal.” Gilaj v. Gonzales, 408 F.3d
275, 282-83 (6th Cir. 2005). Thus, we examine the IJ’s decision, except with respect to the finding
that Patel was a persecutor.
II. ASYLUM CLAIM1
A. Standard Of Review
We have jurisdiction to review the BIA’s asylum determination under 8 U.S.C. § 1252.
Under the INA, the Attorney General may grant asylum to an alien who qualifies as a “refugee,”
which is defined as one “who is unable or unwilling to return to . . . [his or her home country]
because of persecution or a well-founded fear of persecution on account of race, religion, nationality,

-- 2 of 4 --

No. 06-3197 Patel v. Gonzales Page 3
membership in a particular social group, or political opinion . . . .” 8 U.S.C. §§ 1158(b)(1),
1101(a)(42)(A). When an alien qualifies as a refugee, the IJ may exercise discretion to grant or deny
asylum. Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004).
Asylum analysis, therefore, “‘involves a two-step inquiry: (1) whether the applicant qualifies
as a ‘refugee’ as defined in § 1101(a)(42)(A), and (2) whether the applicant merits a favorable
exercise of discretion by the [IJ].’” Id. (alteration in original) (quoting Ouda v. INS, 324 F.3d 445,
451 (6th Cir. 2003) (internal quotation marks and citation omitted)). “At the first step, we review
the IJ’s factual determination as to whether the alien qualifies as a refugee under a
substantial[-]evidence test,” meaning that “findings of fact are ‘conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.’” Id. (quoting 8 U.S.C.
§ 1252(b)(4)(B)). At step two, “the discretionary judgment to grant asylum to a refugee is
‘conclusive unless manifestly contrary to the law and an abuse of discretion.’” Id. at 703 (quoting
8 U.S.C. § 1252(b)(4)(D)).
B. Patel Forfeited The Argument That The IJ’s Discretionary Grounds For Denying Asylum
Constituted An Abuse Of Discretion And Was Manifestly Contrary To Law
Patel argues that the IJ’s decision denying him asylum was not supported by substantial
evidence. First, he argues that the IJ did not determine that Patel lacked credibility. Second, he
argues that the IJ “erred in finding that [he] did not have an objectively reasonable fear of
persecution.” Patel Br. at 9.
What is most important here, however, is what Patel does not argue. Patel does not argue
that the IJ abused his discretion and reached a conclusion manifestly contrary to law in denying Patel
asylum on discretionary grounds. The IJ based his denial of asylum on both non-discretionary and
discretionary grounds. Specifically, the IJ found that Patel was “not worthy of a favorable exercise
of discretion because of his activities in the group that did attempt to rip down the [m]osque and
build the temple.” J.A. at 30 (IJ Opinion at 8).
Apparently, Patel’s position is that, although the IJ explicitly stated that one of the alternate
grounds for denying asylum was discretionary, the BIA did not adopt and affirm this ground, and,
thus, the only ground on which Patel was actually denied asylum was non-discretionary. However,
there is nothing in the BIA decision indicating that it rejected the IJ’s discretionary ground for
denying asylum; therefore, Patel’s argument is without merit.
Because Patel does not challenge the IJ’s discretionary decision to deny asylum, Patel has
forfeited this argument, and the discretionary ground for denying Patel asylum stands. Thus, we
deny Patel’s petition for review of his asylum claim. See Rawe v. Liberty Mut. Fire Ins. Co., 462
F.3d 521, 525 n.4 (6th Cir. 2006) (stating that a party forfeits any argument which is merely stated,
but for which the party makes no argument).
III. VOLUNTARY DEPARTURE CLAIM
A. Jurisdiction
According to 8 U.S.C. § 1252(a)(2)(B)(i), “no court shall have jurisdiction to review any
judgment regarding the granting of relief under section . . . 1229c [the section regarding voluntary
departure].” However, according to § 1252(a)(2)(D), subsection (B) does not preclude this court
from reviewing constitutional claims or questions of law. Thus, while our jurisdiction is limited
with respect to voluntary departure determinations, where voluntary departure raises a constitutional
or legal question, we retain jurisdiction. Patel makes two arguments with respect to voluntary
departure. The first argument is constitutional and the second is a question of law. Therefore, we
have jurisdiction to review both arguments and will examine each in turn.

-- 3 of 4 --

No. 06-3197 Patel v. Gonzales Page 4
B. Due Process
Patel claims that because the BIA expressly overturned the IJ’s finding that Patel was a
persecutor, and because the IJ relied solely on this finding in denying Patel’s request for voluntary
departure, the BIA was obligated to rule on Patel’s briefed argument that he was entitled to
voluntary departure. According to Patel, the BIA’s failure to address this argument was a violation
of his right to due process.
Questions of law in a deportation order are reviewed de novo. Huicochea-Gomez v. INS, 237
F.3d 696, 699 (6th Cir. 2001). “Fifth Amendment guarantees of due process extend to aliens in
deportation proceedings, entitling them to a full and fair hearing.” Id. The Fifth Amendment
prohibits “depriv[ation] of life, liberty, or property, without due process of law.” U.S. CONST .
amend V; Voyticky v. Vill. of Timberlake, 412 F.3d 669, 679 (6th Cir. 2005).
To prevail, Patel first must show that the BIA’s failure to consider his voluntary departure
claim deprived him of a liberty interest. However, we have previously held that “‘[t]he failure to
be granted discretionary relief [such as voluntary departure] does not amount to a deprivation of a
liberty interest.’” Ali v. Ashcroft, 366 F.3d 407, 412 (6th Cir. 2004) (alterations in original) (quoting
Huicochea-Gomez, 237 F.3d at 700). Because there was no deprivation of a liberty interest, Patel’s
due process claim is without merit.
C. The BIA’s Failure to Exercise Discretion
Patel also raises the argument that the BIA failed to use any discretion, in that, while it
adopted and affirmed the IJ’s decision, it rejected the IJ’s determination that Patel was a persecutor.
Because the IJ based his decision to deny Patel’s request for voluntary departure exclusively on the
grounds that Patel was a persecutor himself, it was illogical for the BIA ultimately to affirm the IJ’s
decision in full. The BIA Decision was silent on the question of voluntary departure.
The only way to make sense of the BIA Decision is to conclude that the BIA did not exercise
any discretion whatsoever. We conclude that, as a matter of law, when the BIA rejects the
underlying reason for an IJ’s decision to deny voluntary departure, and then makes no determination
of its own on the voluntary departure issue, the BIA has not exercised any discretion. Therefore,
we remand to the BIA so that it may exercise its discretion on the question of whether Patel is
entitled to voluntary departure.
IV. CONCLUSION
For the foregoing reasons, we DENY Patel’s petition with respect to his asylum claim, and
REMAND the voluntary departure claim for a ruling by the BIA on whether Patel is entitled to
voluntary departure.

-- 4 of 4 --