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Vahora v. Holder

November 15, 2010

KHUBEB 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. A098-371-817.

The opinion of the court was delivered by: Ripple, Circuit Judge.

ARGUED APRIL 21, 2010

Before CUDAHY, RIPPLE and HAMILTON, Circuit Judges.

Khubeb Vahora, a native and citizen of India, sought asylum in the United States based on his Muslim faith. The Immigration Judge ("IJ") denied asylum and granted voluntary departure, and the Board of Immigration Appeals ("BIA" or "Board") affirmed. Mr. Vahora now petitions for review of the BIA's decision. He contends that the Board erred in determining that he had not been subjected to past persecution and that he had not established a well-founded fear of future persecution. He also submits that the IJ did not fulfill the regulatory obligation to advise him of avenues of relief other than asylum and that his case should have been closed administratively and joined with a case involving his parents. For the reasons set forth in this opinion, we deny the petition for review.

I. BACKGROUND

A.

In 2002, Mr. Vahora, then thirteen years old, lived with his grandparents in the Gujarat province of India while his parents were abroad. Although he attended school in Anand during much of this period, he was staying at his grandparents' home in Ahmedabad on March 2, 2002. That evening, Mr. Vahora heard loud noises coming from outside the home and chants urging the killing of Muslims. Muslim homes and businesses in Ahmedabad were being set on fire by a rioting Hindu crowd.*fn1 At his grandfather's instruction, Mr. Vahora fled from the home through the back door. As he looked in one direction, Mr. Vahora saw a Muslim bakery burning. He ran from the mob that he described as carrying "burning wood," A.R. 116, and shortly came upon two Hindu men holding down a Muslim man while a third Hindu man stabbed him. Mr. Vahora recognized all of the perpetrators and the victim and could identify them by name. The Hindu men saw him standing there and spoke to him. He did not respond, but instead turned and ran while the men pursued him. He eventually came upon a rickshaw, which carried him to a temporary camp for fleeing Muslims. He learned later that his grandparents' home was among those that had been burned.

After he had spent two days in the camp, Mr. Vahora's grandparents located him. The family remained there for a few more days, then relocated to Anand. After several weeks, the family sent Mr. Vahora to Mumbai to live with an aunt and uncle, where he stayed for several months. He testified that his grandparents told him that the men involved in the attack he had witnessed inquired after him "quite often," and that the family interpreted their questions as threatening. A.R. 125; see also id. 124 ("[T]heir real meaning was they wanted, they were looking to kill me.").

After several months in Mumbai, Mr. Vahora's father returned and took Mr. Vahora with him to South Africa, where he had been living. After several months in South Africa, the family decided to travel to the United States. They returned to Mumbai and obtained visas. Mr. Vahora testified that, while in Mumbai, about a week before he left for the United States, he saw some suspicious-looking men standing outside a store where he was headed to buy milk. He hid in another store until they left, and, when he then entered the first store, the shop-keeper told him that the men had been asking about him. Mr. Vahora and his family left Mumbai for the United States in September 2003.

In the United States, Mr. Vahora's father apparently attempted to obtain a change of status to an employment-based non-immigrant visa, and Mr. Vahora started attending school. In 2005, when he was 16, Mr. Vahora was a passenger in a car driven by a friend who was speeding. The vehicle was stopped and, through a course of events not disclosed by the record, Mr. Vahora's lack of legal status in the United States was discovered by law enforcement. The Department of Homeland Security thereafter initiated removal proceedings against him.

B.

Because Mr. Vahora makes several claims in his petition for review that relate to the procedural history of his case before the IJ, we discuss that history in some detail.

On January 17, 2006, at Mr. Vahora's first substantive hearing, the IJ noted that Mr. Vahora was a minor with parents present in the United States, but was in removal proceedings alone. He inquired of counsel for Mr. Vahora and for the Government whether Mr. Vahora's parents had lawful status in the United States or were the subject of separate removal proceedings. Mr. Vahora's attorney indicated that, with the assistance of another attorney, the parents had submitted a request for change of status to an L non-immigrant visa. According to Mr. Vahora's attorney, the parents' initial application had been denied, but there was either an appeal or a motion to reopen pending, and no removal proceedings were currently pending against Mr. Vahora's parents. In response, the IJ asked the Government's attorney whether proceedings could be initiated against the parents-and joined with Mr. Vahora's-or whether Mr. Vahora's proceedings could be administratively closed until such time as a final decision on the parents' change-of-status application had been reached. The IJ noted that he hoped to "find a solution" that did not put him "in the position of having to order someone back to India when [his] parents are still here and their status is unadjudicated." A.R. 74. Counsel for the Government agreed to a continuance to permit an investigation of the status of the parents' pending cases, but voiced the belief that it would be premature to close administratively Mr. Vahora's case. Government counsel further noted that, although he could not direct that proceedings be initiated against the parents, he would inquire of Immigration and Customs Enforcement whether they intended to do so. The IJ continued the hearing, and Mr. Vahora was directed to file his asylum application at his next court date.

On April 25, 2006, Mr. Vahora appeared for his continued hearing. At this hearing, he was represented by another attorney from the same law firm that had represented him at his initial appearance. When the IJ inquired about the asylum application due at the hearing, Mr. Vahora's attorney indicated that she was newly assigned to his case within the firm and had not prepared an application. According to new counsel, Mr. Vahora's previous representative had left the firm. She repeatedly stated Mr. Vahora's desire to make an application for asylum or withholding of removal, and she repeatedly sought a continuance. When the IJ told the attorney that he would not further continue the hearing and would only consider applications for relief that were ready to proceed, as previously ordered, Mr. Vahora's attorney requested that the IJ terminate proceedings on the basis of the parents' pending L non-immigrant visa application. Counsel for the Government did not agree to termination, stating that it was her "understanding that the Government is . . . placing the subject's father in removal proceedings." A.R. 84-85. Mr. Vahora's attorney then presented a copy of an on-line case status update page showing the still-pending change-of-status application for his father, but the IJ nevertheless concluded that "[p]endency of the application for another alien [did] not provide for the status of" Mr. Vahora, and, therefore, there was no basis for termination. A.R. 85. With no other applications for relief pending, the IJ granted Mr. Vahora voluntary departure.

Represented by new counsel, Mr. Vahora appealed to the Board, seeking an opportunity to file an asylum application before the IJ. The Board agreed with Mr. Vahora that prior counsel had provided ineffective assistance by failing to comply with the court-ordered asylum application deadline and remanded for further proceedings.

On remand to the IJ, Mr. Vahora presented his application for asylum. In these post-remand proceedings, his counsel did not seek, or even mention, the possibility of termination or administrative closure. Indeed, at his final merits hearing, the Government noted that Mr. Vahora's parents were now in removal proceedings before another IJ, apparently with an asylum claim arising out of the same set of facts. The Government proposed joining Mr. Vahora's case with his father's, but the IJ declined, noting the independent procedural histories of the cases. Although the ruling already had been made, Mr. Vahora's own counsel ...


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