Kirthidhar Bayavarpu v. Eric Holder, Jr.

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Kirthidhar Bayavarpu v. Eric Holder, Jr.

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Case: 09-60426

Document: 00511192712

Page: 1

Date Filed: 08/03/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60426 S u m m a r y Calendar August 3, 2010 Lyle W. Cayce Clerk

K I R T H I D H A R BAYAVARPU, P e titio n e r v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL, R espon dent

P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A079 550 424

B e fo r e JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges. P E R CURIAM:* K ir t h id h a r Bayavarpu, a native and citizen of India, petitions this court t o review the decision of the Board of Immigration Appeals (BIA) dismissing his a p p e a l of the Immigration Judge's order of removal. The BIA concluded that B a y a v a r p u , who did not apply for asylum, had not demonstrated eligibility for w it h h o ld in g of removal because Bayavarpu "failed to show a clear probability of fu t u r e persecution on account of a ground protected under the [Immigration and N a tio n a lit y ] Act."
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Case: 09-60426

Document: 00511192712 Page: 2 No. 09-60426

Date Filed: 08/03/2010

W e review the BIA's legal conclusions de novo "unless a conclusion e m b o d ie s the [BIA's] interpretation of an ambiguous provision of a statute that it administers; a conclusion of the latter type is entitled to the deference p r e s c r ib e d by Chevron U.S.A. Inc. v. Natural Resources Defense Council." 1 Singh v . Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (footnotes omitted). "Factual fin d i n g s are reviewed for substantial evidence, which requires only that the B I A 's decisions be supported by record evidence and be substantially r e a s o n a b le ." Shaikh v. Holder, 588 F.3d 861, 863 (5th Cir. 2009) (internal q u o t a t io n marks and citations omitted). " [W ]it h h o ld in g of removal is a mandatory form of relief if an alien's life or fr e e d o m would be threatened in the country of removal because of the alien's r a c e , religion, nationality, membership in a particular social group, or political o p in io n ." Id. "An alien must establish that race, religion, nationality,

m e m b e r s h ip in a particular social group, or political opinion was or will be at le a s t one central reason for persecuting the applicant." Id. B a y a v a r p u argues that the BIA erred in concluding that his claimed status a s one of the "people targeted by the Naxalites" did not constitute a "particular s o c ia l group" under the Act. The Naxalites, or People's War Group, is an

e x t r e m is t political faction in India. The BIA has defined "particular social g r o u p " as a group whose members share "common characteristics that members o f the group either cannot change, or should not be required to change because s u c h characteristics are fundamental to their individual identities." In re

K a s in g a , 21 I. & N. Dec. 357, 366 (BIA 1996). The BIA has provided the fo llo w in g factors to consider when determining whether a "particular social g r o u p " exists: (1) "whether the group's shared characteristic gives the members t h e requisite social visibility to make them readily identifiable in society" and

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Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

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Case: 09-60426

Document: 00511192712 Page: 3 No. 09-60426

Date Filed: 08/03/2010

(2 ) "whether the group can be defined with sufficient particularity to delimit its m e m b e r s h ip ." In re A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 69 (BIA 2007). " `[A ] social group cannot be defined exclusively by the fact that its m e m b e r s have been subjected to harm.'" Faye v. Holder, 580 F.3d 37, 41 (1st C ir . 2009) (quoting A-M-E & J-G-U, 24 I. & N. Dec at 74). Because "people t a r g e te d by the Naxalites" is defined wholly by its members having been h a r m e d , it is not a particular social group under the BIA's interpretation of that term . Bayavarpu has not demonstrated that the BIA's interpretation of

" p a r t ic u la r social group" is unreasonable. Therefore, the conclusion that "people [lik e himself] targeted by the Naxalites" does not constitute such a group is e n tit le d to deference under Chevron. B a y a v a r p u also argues that the BIA erred when it failed to address or g r a n t relief based on his assertion that a clear probability of persecution exists o n account of his political opinion, i.e., his neutrality. Bayavarpu cites no cases in which this court has adopted the hazardous neutrality doctrine, and we do not n e e d to consider that doctrine today. Bayavarpu's case is similar to that of the a lie n in INS v. Elias-Zacarias, 502 U.S. 478 (1992), who sought to avoid joining a guerilla group in his country. Like the record in Elias-Zacarias, the record in t h e instant case is devoid of evidence either of a political motive on Bayavarpu's p a r t, even considering that he previously served as president of the student u n io n at his college, or of a belief by the Naxalites that Bayavarpu held any s p e c ific political opinion. T h e legal conclusions of the BIA are reasonable and entitled to deference, a n d the factual conclusions of the BIA are supported by the record and are also r e a s o n a b le . Accordingly, Bayavarpu's petition for review is DENIED.

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