Patel v. Attorney General: Re-affirming the “Severe Harm + Relocation” Threshold in Political-Opinion Asylum Claims

Introduction

Diptiben Dipakkumar Patel, her husband, and their minor son petitioned the Third Circuit for review of a Board of Immigration Appeals (BIA) decision denying them asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Ms. Patel alleged a series of politically motivated attacks in Gujarat, India, stemming from her low-level work for the Indian National Congress Party. The key issues before the Court were:

Whether the physical assaults and death threats constituted “past persecution” on account of political opinion;
Whether Petitioners had a “well-founded fear” of future persecution or could reasonably relocate within India;
Whether Petitioners preserved a meaningful CAT argument on appeal.

A divided panel denied the petition, with Judge Matey writing for the majority and Judge Freeman dissenting in part. Although labeled “Not Precedential,” the decision refines two recurring asylum fault-lines in the Third Circuit: (1) the quantum of harm required for “persecution,” and (2) the government’s burden to rebut fear of future persecution through internal relocation.

Summary of the Judgment

The majority held:

Past Persecution – The assaults caused only “minor” injuries, and the associated threats were not “concrete and menacing”; taken individually or cumulatively they did not rise to the stringent Third-Circuit definition of persecution.
Future Persecution / Internal Relocation – Substantial evidence showed Petitioners could relocate within India to avoid “highly localized harassment.” Ms. Patel’s explanation that a utilities registration card would expose her nationwide was deemed implausible.
Withholding & CAT – Because asylum failed, withholding necessarily failed. Any CAT claim was waived for lack of developed briefing.

Judge Freeman’s partial dissent argued the BIA repeated the errors condemned in Blanco and Herrera-Reyes by: (a) imposing a de-facto severe-injury requirement, (b) discounting threats contextualized by violence, and (c) ignoring the cumulative impact of multiple incidents. She would remand for the government to rebut the presumption of future persecution.

Analysis

Precedents Cited and Their Influence

Cortez-Amador v. A.G., 66 F.4th 429 (3d Cir. 2023) – Restated the “extreme behavior” benchmark for persecution; majority relied on its articulation of threats insufficiently “menacing.”
Liang v. A.G., 15 F.4th 623 (3d Cir. 2021) & Chen v. Ashcroft, 381 F.3d 221 (3d Cir. 2004) – Used to illustrate when minor or isolated physical harm falls short of persecution.
Kibinda v. A.G., 477 F.3d 113 (3d Cir. 2007)
Blanco v. A.G., 967 F.3d 304 (3d Cir. 2020) & Herrera-Reyes v. A.G., 952 F.3d 101 (3d Cir. 2020) – Cited by both majority (distinguishing) and dissent (emphasizing cumulative-effect rule). These cases reject a checklist approach requiring physical harm.
Gonzalez-Posadas, Fatin, Voci, Gomez-Zuluaga – Provide historical scaffolding for “persecution,” “threats,” and “cumulative analysis.”

The majority leaned on the “severity” line (e.g., Liang) to say Patel is below the persecution threshold; the dissent invoked Blanco/Herrera-Reyes to argue misapplication of that very standard.

Legal Reasoning of the Majority

Standard of Review – Factual findings are upheld if supported by substantial evidence; legal questions reviewed de novo.
Past Persecution Analysis – The Court required either severe injury or alternatively threats so “concrete & menacing” as to reach the persecution threshold. It emphasized absence of corroborating medical records and modest physical harm.
Cumulative Effect – The majority said it considered incidents together but, echoing the BIA, still found the cumulative harm insufficient.
Internal Relocation – Because BJP harassment was “localized,” and India is geographically vast, relocation was feasible and reasonable; thus Petitioners lacked a well-founded fear nationwide.
Waiver of CAT – A single paragraph in Petitioners’ opening brief was an undeveloped “passing reference,” invoking circuit rules on waiver (Khan).

Dissent’s Counter-Analysis

Judge Freeman faulted the majority for repeating three errors:

Severity Requirement – Citing Blanco, persecution need not involve severe injury.
Contextual Threats – Threats given force by contemporaneous beatings are per se “menacing.”
Cumulative Analysis – BIA merely “paid lip service” to aggregation; proper cumulative review compels a finding of past persecution, triggering a presumption of future persecution and shifting the burden to DHS.

Impact and Future Implications

Though “not precedential,” the opinion carries practical significance:

Stringent Harm Threshold Endorsed – IJs and practitioners will see continued emphasis on objective severity (often medical evidence) for physical attacks.
Localization & Internal Relocation – Petitioners facing political actors with national footprints must show why relocation is futile; vague assertions will not suffice.
Briefing Discipline – The waiver ruling is a cautionary tale: dedicate separate, substantive arguments to CAT or risk forfeiture.
Split Signals from the Panel – The dissent underscores lingering intra-circuit tension over the persecution standard; future panels may adopt Judge Freeman’s reading, especially in published opinions.
Strategic Evidence Gathering – Applicants should gather medical documentation, police reports, affidavits from similarly situated victims, and expert testimony on national-level persecution to survive the “minor harm” and “localized” filters.

Complex Concepts Simplified

Past Persecution: A showing of serious harm already suffered because of a protected ground. It triggers a presumption of future persecution.
Well-Founded Fear: A “reasonable possibility” (≈10–15% chance) of persecution if returned home. Can be rebutted if safe relocation is feasible.
Internal Relocation: The idea that if the applicant can safely move to another region of the home country, asylum may be denied. Government bears the burden when past persecution is proven; applicant bears it otherwise.
Substantial Evidence Review: An appellate court must uphold agency fact-findings unless any reasonable adjudicator would be compelled to reach the opposite conclusion.
CAT Protection: Relief for removal to a country where the applicant more likely than not will be tortured with governmental consent, irrespective of motive.
Waiver: If a party does not adequately brief an issue in its opening appellate brief, the court treats the issue as abandoned.

Conclusion

Patel v. Attorney General reinforces a demanding evidentiary threshold for establishing political-opinion persecution in the Third Circuit and underscores the importance of demonstrating the nationwide reach of prospective persecutors. While non-precedential, the decision signals continued judicial deference to BIA fact-finding and a willingness to resolve asylum claims on internal relocation and waiver grounds. The vigorous dissent, however, keeps alive an alternative view that cumulative threats and violence—even absent severe injury—can satisfy the persecution standard, foreshadowing further debate and potential en banc clarification. For advocates, the lesson is clear: corroborate injuries, contextualize threats, develop every theory of relief in briefings, and, when possible, marshal evidence of nationwide risk to neutralize the relocation argument.