Singh v. Holder, Jr. , 750 F.3d 84 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1275
PRITPAL SINGH,
Petitioner,
v.
ERIC H. HOLDER, JR., United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Selya and Lipez,
Circuit Judges.
Susan E. Zak on brief for petitioner.
Stuart Delery, Acting Assistant Attorney General, Ernesto H.
Molina, Jr., Assistant Director, and Anthony P. Nicastro, Senior
Litigation Counsel, Office of Immigration Litigation, on brief for
respondent.
April 30, 2014
HOWARD, Circuit Judge. Petitioner Pritpal Singh is an
Indian national who entered the United States unlawfully in 2003.
He challenges the Board of Immigration Appeals' (BIA) affirmance of
an Immigration Judge's (IJ) denial of his application for asylum
and withholding of removal.1 We deny the petition.
I.
Singh filed his application in April 2003, roughly three
months after his entry into the United States. The United States
Citizenship and Immigration Services Asylum Office interviewed
Singh twice and denied his application in April 2005. In May 2005,
Singh was issued a Notice to Appear, charging him with removability
as an alien present in the United States without being admitted or
paroled. Singh conceded removability but sought relief as
described above. An IJ conducted a merits hearing in June 2011.
The following recitation of background facts is taken from Singh's
testimony at that hearing.
Singh was a farmer living in the Punjab region of India.
Although he considers himself a member of the Sikh religion, he has
never been strictly religious. In 1998, police arrested his cousin
because he (the cousin) was a member of the All India Sikh Student
Federation, an organization which advocated for a separate state
1
Singh does not contest the rejection of his claim for
protection from removal under the Convention Against Torture (CAT).
That claim is therefore waived. Usman v. Holder, 566 F.3d 262, 268
(1st Cir. 2009).
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for Sikhs in India, which authorities viewed as a terrorist
organization. After being detained for two or three months --
during which time he was beaten -- Singh's cousin moved to Holland
in November 1998 and has not returned to India.
Singh was arrested on February 11, 1999, due to his
association with his cousin. He was held in custody for three
days. Singh was beaten with sticks on his feet and backside for
ten to fifteen minutes on the first and second days he was in
custody. Singh was released during the third day after his father
paid a bribe. He testified that the beating left him "blue" on his
back and necessitated a massage from a doctor.
Singh was arrested a second time on April 14, 1999, for
ferrying roughly 300 people from his village to a celebration,
marking 300 of years of Sikhdom, that resulted in rioting. He was
held for five days, a period during which he was beaten for ten to
twenty minutes on each of the first three days. The beatings were
conducted by several police officers, who kicked Singh in his ribs
and legs. During these incidents, Singh testified, the officers
asked him about Sikh separatism, while seemingly blaming his cousin
for holding such views and asking Singh to reveal his cousin's
whereabouts. He was again released after his parents paid money to
the police.
A few days after his release, Singh traveled by bus to a
cousin's house in Delhi, approximately a six-hour trip. He
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remained there, without incident, for five months, before securing
a seaman's visa and going to Russia. He testified that during his
stay in Delhi, his father informed him by phone that police were
looking for him and that he should not return home. Singh first
arrived in the United States aboard a ship he was working on that
had traveled from Russia. He left the ship in Florida in April
2000, stayed in the United States for a few months, and then went
to Canada to live with a cousin. He left Canada for the United
States in January 2003, and applied for asylum on April 23, 2003.
II.
The IJ set forth several related bases for denying
Singh's petition. First, the judge concluded that Singh did not
testify credibly about his treatment at the hands of his captors in
India. Specifically, the IJ noted a discrepancy between Singh's
testimony -- in which he referenced beatings after both of his
arrests -- and his written asylum application, which reflects
beatings only after the second arrest. Then the IJ concluded that
even if he had found Singh credible, his testimony was weakened by
a lack of corroboration through country condition reports in India
after 2006, any statements from his father that Singh was still the
subject of police searches, or statements from his cousin.
Finally, credibility aside, the IJ found that Singh failed to
establish either past persecution or the threat of future
persecution, specifically observing that his mistreatment did not
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rise to a level of sufficient severity and that his travel around
and remaining in India after his arrests -- as well as his ability
to obtain a passport and visa -- undercut his claimed fear of
future persecution.
On review, the BIA found that the IJ did not commit error
in the adverse credibility determination or in the alternative
findings.2 This timely petition followed.
III.
Where, as here, the BIA issues its own opinion, we review
the Board's decision, rather than the IJ's. Walker v. Holder, 589
F.3d 12, 17 (1st Cir. 2009). We adhere to the "substantial
evidence" standard, pursuant to which we accept the BIA's findings
of fact as long as 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). We will reverse
the BIA's decision only if "the evidence 'points unerringly in the
opposite direction,' that is, unless it compels a contrary
conclusion." Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir. 2007)
(quoting Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004).
We start our analysis by sidestepping the credibility
question. The briefs and the record suggest a dispute over whether
2
As another alternative, the IJ found that Singh did not
timely file his application. The BIA assumed a timely filing and
the Government does not pursue the issue. Accordingly, we do not
address it.
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or when Singh attempted to enter a letter into the record that
would have addressed mistreatment after his first arrest, thus
potentially erasing the discrepancy between his testimony and his
application. Rather than trying to peer through a nearly decade-
old mist, we will take his mistreatment claims at face value.
Regardless, we agree with the BIA that Singh failed to make his
case.
An applicant for asylum must demonstrate a "well-founded
fear of persecution" on one of five protected grounds if he is
returned to his country of origin: race, religion, nationality,
membership in a particular social group, or political opinion.
Jutus v. Holder, 723 F.3d 105, 110 (1st Cir. 2013) (quoting Maryam
v. Gonzales, 421 F.3d 60, 62 n.3 (1st Cir. 2005)). The applicant
can meet this burden through proof of past persecution, which
creates a rebuttable presumption of a well-founded fear of future
persecution. Id. An alien can also demonstrate a well-founded
fear of persecution through an offer of specific proof that his
fear is both subjectively genuine and objectively reasonable.
Castillo-Diaz v. Holder, 562 F.3d 23, 26 (1st Cir. 2009). However,
we regularly have recognized that an asylum application is properly
denied if it is shown by a preponderance of the evidence that the
applicant "could avoid persecution by relocating to another part of
the applicant's country of nationality . . . if under all the
circumstances it would be reasonable to expect the applicant to do
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so." 8 C.F.R. § 1208.13(b)(2)(ii); see also Silva v. Ashcroft, 394
F.3d 1, 7 (1st Cir. 2005) ("[I]f a potentially troublesome state of
affairs is sufficiently localized, an alien can avoid persecution
by the simple expedient of relocating within his own country
instead of fleeing to foreign soil."). It is this last proviso
that dooms Singh's petition. The BIA explicitly affirmed the IJ's
conclusion that Singh lacked a well-founded fear of future
persecution, given his ability to move to Delhi and remain in India
for several months without further harassment or arrest after his
mistreatment at home and to obtain his travel visa without any
undue restriction. Singh does not contest these conclusions, and
thus waives any challenge. Usman v. Holder, 566 F.3d 262, 268 (1st
Cir. 2009).
We need go no further, except to note that rejection of
Singh's claim for withholding must follow inexorably from the
defeat of his asylum claim, as the former imposes a stricter
evidentiary standard on the applicant. Vasili v. Holder, 732 F.3d
83, 92-93 (1st Cir. 2013); see also Pulisir v. Mukasey, 524 F.3d
302, 308 (1st Cir. 2008) (noting that applicant for withholding
must show that future persecution is probable); 8 C.F.R.
§ 1208.16(b)(1)(i)(B) (the possibility of internal relocation
negates any presumption of eligibility for withholding based on
past persecution). The petition is denied.
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