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Khilan v. Holder

March 5, 2009

AMIT KUMAR KHILAN, PETITIONER,
v.
ERIC H. HOLDER, JR.,*FN1 ATTORNEY GENERAL, RESPONDENT.



Petition for Review of an Order of the Board of Immigration Appeals.

Per curiam.

PUBLISHED

Submitted: October 13, 2008

Before MELLOY, BEAM, and GRUENDER, Circuit Judges.

Amit Khilan petitions for review of a decision by the Board of Immigration Appeals ("BIA") denying his application for asylum and withholding of removal. We deny his petition for review.

I.

Khilan is a citizen of India who entered the United States without inspection on January 5, 2004. The government initiated removal proceedings against him on January 9, 2004. On September 1, 2004, Khilan conceded removability and filed an application for asylum and related relief. In his application, Khilan claimed that he had been kidnapped and held for ransom by "Islamic extremists in the Kashmir region." At an October 27, 2006, hearing before an immigration judge ("IJ"), Khilan testified about his family in India and the facts surrounding his kidnapping.

Khilan's grandfather and, to a lesser extent, Khilan's father were active in politics, and both held leadership positions in Shiv Sena, a Hindu political party. (Khilan's uncle testified that Khilan's grandfather had also once run for a mayoral position with the BJP, a large Hindu-nationalist political party). Khilan testified that his grandfather was well known throughout the state of Haryana due to his political activities. Khilan's family is relatively wealthy, and Khilan attended a private school in Lucknow.

On the morning of July 3, 2003, a group of men attacked Khilan on his way to school. The assailants hit Khilan in the head and knocked him unconscious. They bound him and drove him seven or eight hours away to a village near Kolkata (Calcutta), where they kept him in a dark room within a mosque. At one point, Khilan managed to escape but while attempting to hitchhike away was caught again. In retaliation for his escaping, the kidnappers beat him unconscious. According to Khilan, the kidnappers told him that they kidnapped him because his family's notoriety would bring them fame and because his family's wealth assured the kidnappers a large ransom. The kidnappers demanded a fifty-lakh-rupee ransom, which was later negotiated down to thirty-five lakh rupees. They released Khilan after fifteen or sixteen days of captivity, following payment of the ransom. He eventually made his way back to his family and received medical treatment.

The kidnappers threatened to kill Khilan if Khilan or his family sought help from the police. Out of fear, Khilan did not report his kidnapping. The police nevertheless became aware of the kidnapping from one of Khilan's family's servants. The police came to Khilan's house to ask questions, but Khilan and his family refused to cooperate. The police persisted with their investigation and made a number of arrests. The police asked Khilan to identify the suspects, but he again refused to aid the investigation.

In addition to Khilan's testimony regarding the kidnapping, Khilan submitted several documents detailing political and religious violence in India. These documents related numerous incidents of mob violence, abuses of police power, and endemic corruption.

The IJ accepted as credible Khilan's testimony regarding his kidnapping generally but found that Khilan failed to establish that the government was unwilling or unable to control Khilan's kidnappers. Accordingly, the IJ determined that Khilan had not suffered governmental "persecution" and did not establish a fear of future persecution. The IJ denied Khilan's application. The BIA adopted and affirmed the IJ's decision. Khilan appealed the BIA's determination as to his asylum and withholding of removal claims. We review the BIA's decision, but where, as here, the BIA has adopted the IJ's factual findings, we review those findings as part of the final decision. Ismail v. Ashcroft, 396 F.3d 970, 974 (8th Cir. 2005).

II.

The Attorney General may grant asylum to an alien who demonstrates that he is a "refugee" as defined by 8 U.S.C. ยง ...


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