Singh v. Garland ( 2021 )

19-785
Singh v. Garland
BIA
A205 935 070
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 18th day of May, two thousand twenty-one.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 RAYMOND J. LOHIER, JR.,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 GURPREET SINGH,
14 Petitioner,
15
16 v. 19-785
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Suraj Raj Singh, The Law Offices
24 of Suraj Raj Singh P.C., Richmond
25 Hill, NY.
26
27 FOR RESPONDENT: Brian M. Boynton, Acting
28 Assistant Attorney General;
29 Anthony P. Nicastro, Assistant
30 Director; Yanal H. Yousef, Trial
31 Attorney, Office of Immigration
32 Litigation, United States
1 Department of Justice, Washington,
2 DC.
3 UPON DUE CONSIDERATION of this petition for review of a
4 Board of Immigration Appeals (“BIA”) decision, it is hereby
5 ORDERED, ADJUDGED, AND DECREED that the petition for review
6 is DENIED.
7 Petitioner Gurpreet Singh, a native and citizen of India,
8 seeks review of a March 8, 2019 decision of the BIA denying
9 his motion to reopen his removal proceedings. In re Gurpreet
10 Singh, No. A 205 935 070 (B.I.A. Mar. 8, 2019). We assume
11 the parties’ familiarity with the underlying facts and
12 procedural history.
13 We review the BIA’s denial of a motion to reopen for
14 abuse of discretion. See Zhao Quan Chen v. Gonzales, 492
15 F.3d 153, 154 (2d Cir. 2007). The BIA abuses its discretion
16 if its “decision provides no rational explanation,
17 inexplicably departs from established policies, is devoid of
18 any reasoning, or contains only summary or conclusory
19 statements; that is to say, where the Board has acted in an
20 arbitrary or capricious manner.” Kaur v. BIA, 413 F.3d 232,
21 233–34 (2d Cir. 2005) (internal quotation marks omitted).
2
1 In support of his motion to reopen, Singh presented his
2 own affidavit, along with affidavits from friends and family
3 members stating that, after his father changed political
4 affiliations, he was attacked by members of that party.
5 Singh also submitted an affidavit from his mother stating
6 that the family had experienced threats and harassment. As
7 Singh argues and the Government concedes, the BIA erred in
8 concluding that Singh’s evidence was previously available
9 because the evidence addressed attacks on his father in India
10 that allegedly occurred while his appeal was pending before
11 the BIA. See 8 C.F.R. § 1003.2(c)(1) (A motion to reopen
12 requires evidence that “is material and was not available and
13 could not have been discovered or presented at the former
14 hearing.” (emphasis added)); Norani v. Gonzales, 451 F.3d
15 292, 294 & n.3 (2d Cir. 2006) (“[I]n reviewing the BIA’s
16 determination of whether previously unavailable evidence
17 supported the . . . motion to reopen, we must inquire whether
18 the evidence could have been presented at the hearing before
19 the IJ.”).
20 Nevertheless, the BIA did not abuse its discretion by
21 denying the motion to reopen. The BIA has broad discretion
3
1 to deny a motion to reopen. Singh v. Mukasey, 536 F.3d 149,
2 153 (2d Cir. 2008). One basis for denying a motion to reopen
3 is the applicant’s “failure to establish a prima facie case
4 for the relief sought.” INS v. Doherty, 502 U.S. 314, 323
5 (2d Cir. 1992). Additionally, the applicant has the
6 “heavy burden of demonstrating a likelihood that the new
7 evidence presented would alter the result in the case.” Li
8 Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir.
9 2005) (internal quotation marks omitted).
10 The BIA reasonably concluded that Singh’s new evidence
11 failed to meet his burden. First, as the BIA determined, the
12 evidence failed to address or rehabilitate the bases for the
13 adverse credibility determination. The BIA may rely on an
14 immigration judge’s (“IJ’s”) underlying adverse credibility
15 determination to decline to credit new evidence supporting a
16 motion to reopen. See Qin Wen Zheng v. Gonzales, 500 F.3d
17 143, 147 (2d Cir. 2007) (finding it appropriate for the BIA
18 to use “the IJ’s unchallenged conclusion that [the applicant]
19 was not credible in support of its refusal to credit the
20 authenticity” of new evidence). The BIA reasonably denied
21 reopening on this basis because Singh’s new evidence—letters
4
1 from his family members and his own assertion that he had
2 changed his political affiliation since his hearing—did not
3 rehabilitate his credibility.
4 Second, the BIA reasonably concluded that even crediting
5 Singh’s evidence, he failed to establish a well-founded fear
6 of future persecution. The letters from Singh’s family
7 asserted that Singh’s father’s attackers had threatened or
8 harassed the family, but not that any other family members
9 had been harmed. Accordingly, the BIA did not err in finding
10 that the evidence did not reflect a well-founded fear of harm
11 rising to the level of persecution. See Ivanishvili v. U.S.
12 Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006) (discussing
13 definition of persecution and distinguishing persecution from
14 harassment).
15 In sum, absent reliable evidence that Singh would suffer
16 harm rising to the level of persecution, the BIA did not abuse
17 its discretion in denying reopening because Singh did not
18 state a prima facie case for asylum. Id. at 339–41; Doherty,
19 502 U.S. at 323.
5
1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions and applications are DENIED and
3 stays VACATED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
6