Woulstain Stephen Creado; Esther Maria D’souza v. Eric Holder, Jr., Attorney General

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0782n.06
Case No. 13-4434
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
WOULSTAIN STEPHEN CREADO;
ESTHER MARIA D’SOUZA,
Petitioners,
v.
ERIC HOLDER, JR., ATTORNEY
GENERAL,
Respondent.
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ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
APPEALS
Before: Merritt, White, and Donald, Circuit Judges.
MERRITT, Circuit Judge. In this immigration case, petitioners Woulstain Stephen
Creado1 and Esther Maria D’Souza, a married couple,2 seek review of a decision of the Board of
Immigration Appeals dismissing their appeal from an immigration judge’s denial of petitioners’
application for asylum, withholding of removal and relief under the Convention Against Torture.
Petitioners do not appeal the dismissal of their application for asylum, which was denied on the
ground of untimeliness. Board of Immigration Appeals Decision at 2 (Jan. 15, 2010).
1 Petitioner Creado’s first name is alternatively spelled “Woulstein” in the briefs filed by his counsel.
2 Creado is the lead applicant and his wife, D’Souza, a derivative beneficiary.

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Petitioners are natives of Kuwait but citizens of India, where most of their extended
family still lives. Creado entered the United States in 2003, and D’Souza in 2004, as
nonimmigrants on student visas. They have two children, both of whom are citizens of the
United States. Petitioners concede removability to India. Petitioners alleged they would be
persecuted in India due to their Catholic religion by two groups: (1) by Catholics, including,
primarily, their immediate families, for bearing one child out of wedlock and not having married
in the Catholic Church, and having a second child after a civil wedding, and (2) by Hindus, who
comprise the majority religion in India.
The Supreme Court pointed out in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), that
Congress created two separate and distinct standards permitting otherwise-deportable aliens to
remain in the United States: (1) the standard for “withholding of removal” under 8 U.S.C.
§ 1253(h) of the Immigration and Nationality Act of 1980; and (2) the standard for “asylum”
under 8 U.S.C. § 1158(a), codifying the Refugee Act of 1980. Here, petitioners are ineligible for
asylum consideration because they filed beyond the applicable one-year limitation for asylum.
Therefore, the questions before us are whether they are eligible for “withholding of removal”
under the standard that “it is more likely than not that the alien would be subject to persecution,”
or relief under the Convention Against Torture.
For the reasons that follow, we deny the petition for review.
I.
Creado and D’Souza testified before an immigration judge that they are practicing
Catholics. They acknowledged a long-standing dispute with their parents in India over the fact
that their first child was born out of wedlock. Even though they were legally married at the time
their second child was born, petitioners have not told their families about the birth of their

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second child. Because they were not married in the Catholic Church, their families do not
recognize their marriage and would consider their second child also to have been born out of
wedlock. Creado testified that he is afraid that his father will harm him, his wife and children if
he returns to India. Specifically, he testified that after the birth of their first child, his father
threatened to fly to the United States and harm them, but he never did. Creado Decl., Ex. H to
Motion to Reopen (Feb. 12, 2010). Creado testified that his father has a violent temper and is
well connected with corrupt officials in Bombay (also known as Mumbai) who would be unable
or unwilling to control his father if he tried to harm petitioners or their children. Hr’g Tr. at 22-
23, Oct. 22, 2007; see also Creado Decl., Ex. H to Motion to Reopen. Petitioners also testified
that Hindus in India will persecute them based on their Catholic religion. Petitioners submitted
documentary evidence of violence against Christians in some parts of India.
After their first appearance before an immigration judge, the judge denied relief, finding
that the primary reason for fear of future persecution arose from Creado’s fear of his own
family’s disapproval of the fact that his children were born out of wedlock. Oral Decision of
Immigration Judge at 11 (Apr. 17, 2008). The immigration judge also found that petitioners did
not carry their burden of showing that the Indian government would not protect them either from
Hindus or from their family members. Id. at 12-13. In addition, the immigration judge found
that Creado’s father was no longer living in India and petitioners could safely move to another
part of India to escape their families. Id. at 5.
The denial was upheld by the Board of Immigration Appeals on January 15, 2010, and
petitioners filed a motion to reopen to supplement the record regarding persecution of Christians
by Hindus in India. On reconsideration, the Board remanded the case to an immigration judge to

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consider additional evidence in support of petitioners’ contention that Catholics are persecuted in
India. Order of the Board of Immigration Appeals (July 20, 2010).
On remand, petitioners submitted documentation from 2008-2010 that reported isolated
acts of violence against Christians in India, including the 2010 Department of State International
Religious Freedom Report. Motion to Reopen, Exs. D&G (Feb. 12, 2010). Creado testified that
he did not believe he or his wife and children could be safe in any part of India and he did not
think that the government would protect them if they were ever threatened. Hr’g Tr. at 19, 25
(Dec. 2, 2011).
After remand, a different immigration judge determined that the additional evidence did
not establish that “it is more likely than not” that petitioners would be subject to persecution
based on their religion. Decision of the Immigration Judge (May 14, 2012). The judge
considered the State Department’s 2010 International Religious Freedom Report for India, the
2011 Background Note for India and the 2010 Human Rights Report for India in his decision.
The reports show that there are some isolated incidents where Christians in India have been
attacked by Hindus in rural areas. The immigration judge noted that the reports did not mention
incidents of persecution toward couples not married in the church or who had children out of
wedlock.
On appeal, the Board concurred that the evidence submitted on remand, as well as the
record as a whole, did not demonstrate that it is “more likely than not” that petitioners would be
subject to persecution on account of their Catholic religion and dismissed Creado’s appeal.
Decision of the Board of Immigration Appeals (Nov. 18, 2013). It held that, while the record
demonstrated that there is some violence against Christians in India, the evidence is insufficient
to establish that the government was unable or unwilling to protect petitioners from their families

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or their families’ associates. The Board also determined that petitioners failed to meet the
eligibility requirements for relief under the Convention Against Torture because they did not
establish that the Indian government would acquiesce to any torture. Petitioners filed a timely
petition for review of the Board’s decision with this Court.
II.
We review immigration decisions for substantial evidence, considering whether they are
supported by reasonable, substantial, and probative evidence on the record considered as a
whole. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Yu v. Ashcroft, 364 F.3d 700, 702 (6th
Cir. 2004).
A. Withholding of Removal
To establish eligibility for withholding of removal, an alien must show a clear
probability that, if she was removed to her native country, her “life or freedom would be
threatened” on a protected ground. 8 U.S.C. § 1231(b)(3)(A) (2006); Zoarab v. Mukasey,
524 F.3d 777, 782 (6th Cir. 2008). A “clear probability” means that it is more likely than not
that the alien would be subject to persecution. INS v. Stevic, 467 U.S. 407, 429–30 (1984). If the
applicant establishes past persecution, it is presumed that her life or freedom would be threatened
on account of a protected ground. 8 C.F.R. § 1208.16(b)(1) (2012). A determination regarding
eligibility for withholding of removal is conclusive if supported by substantial evidence on the
record considered as a whole. Elias–Zacarias, 502 U.S. at 481.
Petitioners do not dispute that they have not shown any past persecution and therefore
have the burden of showing it is “more likely than not” that they would be persecuted in the
future based on a protected ground. 8 C.F.R. § 1208.16(b)(2). Petitioners also fail to meet their
burden if they could avoid future threat to life or freedom “by relocating to another part of

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[India], and, under all the circumstances, it would be reasonable to expect the applicant to do so.”
8 C.F.R. § 1208.16(b)(2). If the fear of persecution comes from non-government actors, as here,
petitioners must show that the government is unable or unwilling to protect them. Khalili v.
Holder, 557 F.3d 429, 436 (6th Cir. 2009).
To establish eligibility for withholding of removal, petitioners must first establish that
any mistreatment would be based on a protected ground. Petitioners contend that they would be
mistreated by their family members, and perhaps other Catholics in the community, because they
bore children out of wedlock. Petitioners argue that they are entitled to relief because they
belong to a religious or social group that violates traditional Catholic values, but they concede
that their families’ displeasure relates to embarrassment or feeling disgraced based on their
children’s behavior. Creado testified that the Catholic beliefs of the two families were offended
by the birth of petitioners’ first child out of wedlock. Although petitioners were legally married
by the time their second child was born, because they had not married in the Catholic Church,
they contend that their families would view the birth of the second child as an out-of-wedlock
birth as well.
Personal disputes cannot support a claim for withholding of removal. Klawitter v. INS,
970 F.2d 149, 152-53 (6th Cir. 1992). So, while the treatment by their families may be related to
petitioners’ violation of traditional Catholic values, and is arguably loosely tied to religion, the
dispute is more in the nature of a personal dispute among family members than a targeted attack
based on certain religious views, or lack thereof. We have previously held that it is necessary to
examine a petitioner’s overall cultural context to determine the basis for any mistreatment. Al-
Ghorbani v. Holder, 585 F.3d 980, 997-98 (6th Cir. 2009) (culture permits, or encourages,
aggrieved father to kill an individual who defies father’s wishes by marrying daughter).

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Creado failed to show that the proposed group of persons with children born out of
wedlock is socially visible and sufficiently particular to warrant protection. Creado presented
almost no evidence of how Indian society views the proposed group. His testimony focused,
rather, on how his family views petitioners because they are the parents of two children born out
of wedlock, not how Indian society generally would perceive petitioners and others in a similar
position. Creado did not describe experiences being persecuted or shunned by anyone in India
other than his family. We also note that the immigration judge found that Creado’s father was no
longer living in India, thereby minimizing any perceived or actual threat from him. Oral
Decision of Immigration Judge at 5 (Apr. 17, 2008).
In addition, Creado did not demonstrate that the government of India was unwilling or
unable to protect him and his family. This is a matter where Creado is involved in a personal
feud with his family over the circumstances of his children’s birth. There is little evidence that
Creado or his wife or children would be mistreated by the government of India, nor is there any
evidence that their families in India are or would be acting with the consent or acquiescence of
the government, or that the government would be unwilling to protect them from their families.
As to the alleged persecution by Hindus, petitioners do not claim that they suffered past
persecution; rather, they contend that they have demonstrated a clear probability of persecution if
they return to India based on a pattern or practice of persecuting Christians. To succeed on a
pattern or practice claim, the petitioners must show that there is a pattern or practice of
persecution of persons similarly situated to them and that it is more likely than not that their life
and freedom would be threatened upon their return because they are members of the group. See
8 C.F.R. § 208.16(b)(2)(i)-(ii).

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The record demonstrates that the Department of State recognized there was some
violence against minority religions in India, including Christians. However, according to the
2010 State Department International Religious Freedom Report, which was considered by the
immigration judge and the Board, these incidents are sporadic and isolated and the Indian
government does not condone any acts of violence against Christians. The State Department
Report also emphasized that religious diversity is tolerated across most of India. Importantly,
Creado testified that no member of his family living in India had ever been threatened or harmed
on account of their Catholic faith. Hr’g Tr. at 23-24 (Dec. 2, 2011).
Additionally, according to State Department reports, the secular Indian constitution
guarantees religious freedom to all its citizens. Due to ineffective or corrupt law enforcement,
some Indian states do not consistently and vigorously protect religious freedom. However, in
recent years, the national government has invested increasing resources in guaranteeing the
consistent enforcement of laws protecting minority faiths in all parts of India. U.S. Dep’t of
State, Int’l Religious Freedom Report 2010. Substantial evidence therefore supports the Board’s
finding that Creado failed to establish a pattern or practice of persecution against Catholics in
India such that it is more likely than not his life and freedom would be threatened. We note also
that more recent reports from the State Department continue to report efforts by the Indian
government to denounce any violence or lack of tolerance against Christians. See 2013 State
Department’s International Religious Freedom Report; 2013 State Department Report on Human
Rights.
B. Convention Against Torture
Petitioners also claim that they are eligible for relief under the Convention Against
Torture. To qualify for protection under the Convention Against Torture, a petitioner bears the

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burden of showing that “it is more likely than not that he or she would be tortured if removed to
the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). To state a prima facie case for
relief, petitioners must show that they will be subject to “severe pain or suffering, whether
physical or mental . . . by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.” Id. § 1208.18(a)(1). A public official
acquiesces to torture if, “prior to the activity constituting torture, [the official] ha[s] awareness of
such activity and thereafter breach[es] his or her legal responsibility to intervene to prevent such
activity.” Id. § 1208.18(a)(7).
We conclude that substantial evidence supports the finding that it is not more likely than
not that petitioners will face torture by or at the acquiescence of Indian public officials. As
outlined above, we recognize that the record contains evidence of isolated incidents of
harassment, persecution and violence against Christians. We cannot conclude, however, that the
record compels a finding that government officials caused or breached their responsibility to
intervene to prevent such activity.
For the foregoing reasons, the petition for review is denied.

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