USCA11 Case: 22-11735 Document: 21-1 Date Filed: 03/14/2023 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11735
Non-Argument Calendar
____________________
SUKHWINDER SINGH,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A208-182-008
____________________
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2 Opinion of the Court 22-11735
Before NEWSOM, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Sukhwinder Singh, a native and citizen of India, seeks re-
view of the Board of Immigration Appeals’ final order affirming the
Immigration Judge’s denial of his claims for asylum and withhold-
ing of removal, as well as his motion to change venue.
First, Singh asserts that his asylum and withholding claims
were improperly denied because the BIA wrongly concluded that
he waived a challenge to the IJ’s dispositive finding of changed cir-
cumstances in his home country. Specifically, he contends that the
IJ and BIA used an improper standard for assessing changed circum-
stances, erred in concluding that he did not suffer past persecution,
failed to consider all the evidence in light of the presumption that
he was credible, and ignored new evidence that he presented on
appeal to the BIA. Second, Singh asserts that the BIA’s decision
affirming the denial of his change-of-venue motion lacked reasoned
consideration of the arguments and evidence. After careful review,
we deny Singh’s petition in part and dismiss it in part.
I
We review only the BIA’s decision, except to the extent that
the BIA expressly adopted the IJ’s decision. Kazemzadeh v. U.S.
Att’y Gen.,
577 F.3d 1341, 1350 (11th Cir. 2009). In deciding
whether to uphold the BIA’s decision, we are limited to the
grounds on which the BIA relied. See Gonzalez v. U.S. Att’y Gen.,
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22-11735 Opinion of the Court 3
820 F.3d 399, 403 (11th Cir. 2016) (stating that this Court does not
consider issues that the BIA did not reach); NLRB v. U.S. Postal
Serv.,
526 F.3d 729, 732 n.2 (11th Cir. 2008) (stating that an admin-
istrative agency ruling “cannot be upheld unless the grounds upon
which the agency acted . . . were those upon which its action can
be sustained” (quotation omitted)). We review legal conclusions
de novo and factual findings for substantial evidence. Perez-Zen-
teno v. U.S. Att’y Gen.,
913 F.3d 1301, 1306 (11th Cir. 2019).
“[A]gencies are not required to make findings on issues the decision
of which is unnecessary to the results they reach.” I.N.S. v. Baga-
masbad,
429 U.S. 24, 25 (1976).
We may review a final order of removal only if the alien has
exhausted all administrative remedies available to him as a matter
of right. INA § 242(d)(1),
8 U.S.C. § 1252(d)(1). The exhaustion
requirement is jurisdictional and precludes review of a claim that
was not presented to the BIA. Amaya-Artunduaga v. U.S. Att’y
Gen.,
463 F.3d 1247, 1250 (11th Cir. 2006). To exhaust a claim, it is
not enough that the petitioner merely identified an issue before the
BIA. Jeune v. U.S. Att’y Gen.,
810 F.3d 792, 800 (11th Cir. 2016).
Instead, he must raise the “core issue” before the BIA and set out
any discrete arguments that he relies on in support of that claim.
Id. While the petitioner is not required to use precise legal termi-
nology or provide well-developed arguments, he must provide
enough information to permit the BIA to review and correct any
errors below.
Id. “Unadorned, conclusory statements do not sat-
isfy this requirement, and the petitioner must do more than make
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4 Opinion of the Court 22-11735
a passing reference to the issue.”
Id. (internal quotation omitted).
However, a party cannot be barred for failure to raise an argument
about a decision not yet in existence. Indrawati v. U.S. Att’y Gen.,
779 F.3d 1284, 1299 (2015) (rejecting as “facially nonsensical” the
argument that an alien failed to exhaust her claim that the BIA’s
decision lacked reasoned consideration when that argument was
based on a “decision not yet in existence”).
The Attorney General has the discretion to grant asylum to
an alien who establishes that he is a refugee. INA § 208(b)(1)(A),
8
U.S.C. § 1158(b)(1)(A). The burden is on the alien to establish that
he is a refugee. INA § 208(b)(1)(B)(i),
8 U.S.C. § 1158(b)(1)(B)(i). A
refugee includes any person “who is unable or unwilling to return
to, and is unable or unwilling to avail himself or herself of the pro-
tection of, [the person’s home] country because of persecution or
a well-founded fear of persecution on account of race, religion, na-
tionality, membership in a particular social group, or political opin-
ion.” INA § 101(a)(42)(A),
8 U.S.C. § 1101(a)(42)(A).
To meet the definition of a refugee, the applicant “must,
with specific and credible evidence, demonstrate (1) past persecu-
tion on account of a statutorily listed factor, or (2) a ‘well-founded
fear’ that the statutorily-listed factor will cause future persecution.”
Ruiz v. Att’y Gen.,
440 F.3d 1247, 1257 (11th Cir. 2006) (citing
8
C.F.R. § 208.13(a)–(b)). Where an applicant demonstrates past per-
secution, a rebuttable presumption that he has a well-founded fear
of future prosecution applies.
Id. The presumption can be over-
come with a showing by a preponderance of the evidence that
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22-11735 Opinion of the Court 5
either (1) there was a fundamental change in circumstances such
that the applicant no longer has a well-founded fear of persecution
or (2) the applicant could avoid future persecution by relocating to
another part of the country.
8 C.F.R. § 208.13(b)(1)(i)(A)–(B).
Under the withholding of removal provision of the INA, an
alien shall not be removed to a country if his “life or freedom would
be threatened” on account of “race, religion, nationality, member-
ship in a particular social group, or political opinion.” INA
§ 241(b)(3),
8 U.S.C. § 1231(b)(3)(A). The burden of proof is on the
alien to show his eligibility for withholding of removal.
8 C.F.R.
§ 208.16(b). The alien must demonstrate that it is more likely than
not that he will be persecuted or tortured on being returned to his
country. Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1232 (11th
Cir. 2005). This is a more stringent standard than for asylum, and
an applicant who cannot meet the well-founded-fear standard for
asylum is generally precluded from qualifying for either asylum or
withholding of removal.
Id. at 1232–33. If an alien establishes past
persecution in a country, it is presumed that his life or freedom
would be threatened on return to that country unless the DHS
shows by a preponderance of the evidence that either (1) there has
been a fundamental change in circumstances such that the appli-
cant’s life or freedom would no longer be threatened on his depor-
tation or removal or (2) the applicant could avoid future threat by
relocating to another part of the country.
8 C.F.R. § 208.16(b)(1)(i).
Here, the BIA correctly concluded that Singh waived a chal-
lenge to the IJ’s dispositive changed-circumstances finding, and
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6 Opinion of the Court 22-11735
thus the BIA did not err in affirming the IJ’s denial of Singh’s asylum
and withholding of removal claims.
Singh’s argument that the IJ misapplied the changed-circum-
stance requirement is unexhausted, and we dismiss the petition as
to that argument. See Kazemzadeh,
577 F.3d at 1350; Gonzalez,
820 F.3d at 403; NLRB,
526 F.3d at 732 n.2; Jeune,
810 F.3d at 800.
His arguments about the BIA not fully or correctly addressing the
evidence, or not considering certain evidence, are unavailing be-
cause in light of its waiver finding, the BIA was not required to ad-
dress any evidence at all. Bagamasbad,
429 U.S. at 25. Accordingly,
we deny Singh’s petition in that regard.
II
Whether the BIA’s decision shows reasoned consideration is
reviewed de novo. Bing Quan Lin v. U.S. Att’y Gen.,
881 F.3d 860,
872 (11th Cir. 2018). Absent reasoned consideration and adequate
findings, we must remand for further proceedings. Ali v. U.S. Att’y
Gen.,
931 F.3d 1327, 1333 (11th Cir. 2019).
The BIA must consider all evidence that an applicant has
submitted. Tan v. U.S. Att’y Gen.,
446 F.3d 1369, 1374 (11th Cir.
2006). The BIA must “consider the issues raised and announce its
decision in terms sufficient to enable a reviewing court to perceive
that it has heard and thought and not merely reacted.”
Id. (quota-
tion omitted). The BIA does not give reasoned consideration to a
claim when it misstates the contents of the record, fails to ade-
quately explain its refusal of logical conclusions, or provides
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22-11735 Opinion of the Court 7
justifications for its decision which are unreasonable and which do
not respond to any arguments in the record.
Id. at 1375–77; see
also Jean-Pierre v. U.S. Att’y Gen.,
500 F.3d 1315, 1325–26 (11th
Cir. 2007) (remanding a CAT claim for failure to give reasoned con-
sideration). However, the agency “need not address specifically
each claim the petitioner made or each piece of evidence the peti-
tioner presented.” Jeune,
810 F.3d at 803 (quotation omitted).
An IJ may grant a motion for change of venue if a party
shows “good cause,” but may not grant it without giving the other
party notice and an opportunity to respond.
8 C.F.R. § 1003.20(b).
In determining whether good cause exists to grant a change of
venue, an IJ considers such factors as, among others, administrative
convenience, expeditious treatment of the case, the location of the
witnesses, and the costs of transporting witnesses or evidence to a
new location. See Matter of Rahman,
20 I. & N. Dec. 480, 483
(B.I.A. 1992).
“It is a foundational princip[le] of administrative law that a
reviewing court must review only the information that was before
the agency at the time of its decision in assessing whether that de-
cision was permissible.” Salmeron-Salmeron v. Spivey,
926 F.3d
1283, 1286 (11th Cir. 2019). The INA provides that a court of ap-
peals, in reviewing a final order of removal, “shall decide the peti-
tion only on the administrative record on which the order of re-
moval is based.” INA § 242(b)(4)(A),
8 U.S.C. § 1252(b)(4)(A). The
record on review of an agency order consists of the order of which
the petitioner seeks review, as well as “any findings or report on
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8 Opinion of the Court 22-11735
which it is based” and “the pleadings, evidence, and other parts of
the proceedings before the agency.” Fed. R. App. P. 16(a)(1)–(3).
As an initial matter, Singh’s argument that the administra-
tive record is incomplete because it lacks materials that he filed in
an interlocutory appeal to the BIA is meritless. Singh’s petition
challenges the BIA’s order affirming the IJ’s removal order, and our
review is limited to the record on which that BIA order is based.
Salmeron-Salmeron,
926 F.3d at 1286.
Furthermore, the BIA’s decision to deny the change of
venue motion did not lack reasoned consideration, even though it
did not address every claim that Singh made. The BIA neither mis-
stated the record, failed to explain a refusal of logical conclusions,
nor provided a justification that was unreasonable or did not re-
spond to arguments in the record. See Tan,
446 F.3d at 1375–77.
The BIA reviewed the IJ’s reasoning in denying the motion and
concluded both that the IJ had reviewed the necessary relevant fac-
tors and that his finding of no good cause to change venue was cor-
rect. Having done so, the BIA was not required to address every
claim that Singh made, including that the IJ should have let DHS
file a response and that Singh would be prejudiced by not changing
venue. Jeune,
810 F.3d at 800;
8 C.F.R. § 1003.20(b). Accordingly,
we deny Singh’s petition for review as to this issue.
PETITION DENIED IN PART AN DISMISSED IN PART.
