Case Notes – United States Court of Appeals for the Seventh Circuit rejects Indian Muslim’s Religious Persecution Asylum Petition

By Kavita Mohan

United States Court of Appeals for the Seventh Circuit rejects Indian Muslim’s religious persecution asylum petition

Khubeb Vahora, a native and citizen of India, sought asylum in the United States claiming persecution based on his Muslim faith. The Immigration Judge (“IJ”) denied asylum and granted voluntary departure, and the Board of Immigration Appeals (“BIA”) affirmed. The United States Court of Appeals for the Seventh Circuit affirmed. Vahora v. Holder, 626 F.3d 907 (7th Cir. 2010).

Vahora and his parents left India for the United States in 2003 after Mr. Vahora witnessed two Hindu men holding down a Muslim man while a third Hindu man stabbed him during the 2002 riots in Gujarat. Once in the United States, Vahora’s father attempted to obtain a change of visa status to an employment based non-immigration visa. However, in 2005, when Vahora was 16, his illegal status came to the attention of law enforcement and the Department of Homeland Security thereafter initiated removal proceedings.

Vahora challenged the BIA’s conclusion that he had not established past persecution or a well-founded fear of future persecution. Vahora further asserted that the IJ who initially denied asylum erred in failing to administratively close his case at the outset, because, as a minor child in the custody of his parents, his case should have been treated together with that of his parents. Finally, Vahora claimed that the IJ failed to advise him of the potential ability to adjust his status through his father’s employment-based visa and that this failure required reversal and remand by the Seventh Circuit.

The Seventh Circuit found that the BIA’s conclusion that the harms suffered by Vahora did not rise to the level of persecution was supported by substantial evidence. Vahora did not present the Seventh Circuit with factually analogous cases in which petitioners were found to have suffered past persecution. The Seventh Circuit had, in fact, previously rejected claims in cases similar to Vahora’s. Vahora’s claim that the Hindu men responsible for the stabbing had inquired about him from his grandparents and a shopkeeper near his Uncle’s home was not sufficient to establish the possibility of future persecution on a country-wide basis, as required by federal regulations.

Next, the Seventh Circuit held that the IJ did not abuse his discretion in refusing to administratively close Vahora’s case. The record did not demonstrate that Vahora had properly made or maintained his request – Vahora had no grounds for immigration relief through his family, and had produced only incomplete information about the status of his parent’s case.

Finally, the Seventh Circuit rejected Vahora’s claim that the IJ should have informed him that he was eligible for relief through the adjustment of his status based on the possibility that his father’s request for change of status would eventually be permitted and his father may eventually have obtained an immigration visa. This chain of events was too speculative to impose a duty on the IJ. Further, there was no prejudice to Vahora. Vahora had never represented that his father’s application for a change of status was successful and in fact, his father was the subject of removal proceedings.

Illinois Appellate Court holds that Indian family court complied with Uniform Child Custody Jurisdiction and Enforcement Act in determining that parties resided in India in international custody dispute.

An Illinois appellate court recently held that the Illinois trial court erred in determining that Illinois had exclusive and continuing jurisdiction in an international custody dispute in which both parents maintained residences in India and the United States. In re Marriage of Akula, 935 N.E. 2d 1070 (Ill. App. 2010).

In 2002, the circuit court of Cook County entered a judgment dissolving the marriage of Malini and Vikram Akula and awarding Malini sole custody of their son, T.B.A. Several years later, in August 2009, Malini and Vikram enrolled T.B.A. in the International School of Hyderabad and Malini entered into a four-year lease for a home in India. The following month, Malini obtained a residential permit from the Indian government extending through April 2013.
Malini and T.B.A. returned to Illinois for a week in September 2009, after which they both went back to Hyderabad. In October 2009, Malini returned to Illinois without T.B.A. for back surgery and to attend a conference. While Malini was in the U.S., Malini and Vikram had an argument about T.B.A. and Vikram filed a series of petitions in family court in Hyderabad seeking sole custody of T.B.A. Malini, in turn filed a series of petitions in Illinois, claiming that she considered Illinois to be her and T.B.A.’s permanent residence.

The Indian family court found that both parties and T.B.A. were now “ordinarily residing” in Hyderabad, and that T.B.A., who was then in third grade, could not be moved from school in Hyderabad until he completed fifth grade. The Illinois trial court granted Malini summary judgment on the issue of jurisdiction, concluding Malini and TBA resided in Illinois, and Illinois had exclusive, continuing jurisdiction over the parties and subject matter under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). The circuit court certified for appeal the issue of whether it had properly ruled that Illinois had exclusive and continuing jurisdiction because the Indian family court did not make a judicial determination in substantial comformity with the UCCJEA.

Under the UCCJEA, continued and exclusive jurisdiction is lost when the child, the child’s parents, and any person acting as a parent no longer reside in the state in which the original judgment was entered.

The Illinois Appellate Court held that the Indian family court’s finding that the parents and child are “now ordinarily residing” in Hyderabad necessarily implied that the presence of Vikram, Malini, and T.B.A. in India was not temporary or transient and that they did not presently reside in Illinois. The Court held that the Indian family court acted in substantial conformity with the requirements of the UCCJEA as enacted in Illinois, and that the Illinois trial court erred in its determination that Illinois had continued and exclusive jurisdiction over this case.

Kavita Mohan is a co-editor of India Law News and can be contacted at kavita.mohan@gmail.com.

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