Singh v. Sessions , 706 F. App'x 732 ( 2017 )

16-1603
Singh v. Sessions
BIA
Christensen, IJ
A087 942 565
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 30th day of October, two thousand seventeen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 RICHARD C. WESLEY,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 SURJIT SINGH,
14 Petitioner,
15
16 v. 16-1603
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Amy Nussbaum Gell, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Shelley R. Goad,
27 Assistant Director; Laura Halliday
28 Hickein, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Surjit Singh, a native and citizen of India,
6 seeks review of an April 22, 2016 decision of the BIA, affirming
7 a December 19, 2013 decision of an Immigration Judge (“IJ”)
8 denying Singh’s application for asylum, withholding of removal,
9 and relief under the Convention Against Torture (“CAT”), and
10 denying his motion to reopen in the first instance. In re
11 Surjit Singh, No. A087 942 565 (B.I.A. Apr. 22, 2016), aff’g
12 No. A087 942 565 (Immig. Ct. N.Y. City Dec. 19, 2013). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 We have reviewed the IJ’s decision as modified by the BIA,
16 i.e., minus the adverse credibility determination that the BIA
17 declined to reach. See Xue Hong Yang v. U.S. Dep’t of Justice,
18 426 F.3d 520, 522 (2d Cir. 2005). The applicable standards of
19 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
20 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009); Jian
21 Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
2
1 Asylum, Withholding of Removal, and CAT Relief
2 The agency reasonably concluded that Singh failed to
3 establish his eligibility for asylum and withholding of removal
4 based on police persecution, because he failed to demonstrate
5 that police targeted him on account of a protected ground. To
6 establish eligibility for asylum and withholding of removal,
7 “the applicant must establish that race, religion, nationality,
8 membership in a particular social group, or political opinion
9 was or will be at least one central reason for persecuting the
10 applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); id.
11 § 1231(b)(3)(A); see also Matter of C-T-L-, 25 I. & N. Dec. 341,
12 348 (B.I.A. 2010). “[T]he enforcement of generally applicable
13 law cannot be said to be on account of the offender’s political
14 opinion, even if the offender objects to the law.” Jin Jin Long
15 v. Holder, 620 F.3d 162, 166 (2d Cir. 2010); see also Matter
16 of Sibrun, 18 I. & N. Dec. 354, 359 (B.I.A. 1983) (“[T]he
17 possibility that the applicant may be subjected to criminal
18 prosecution and perhaps severe punishment as a result of his
19 illegal departure from [his home country] does not demonstrate
20 a likelihood of persecution under the Act.”). “At the same
21 time, prosecution that is pretext for political persecution is
3
1 not on account of law enforcement.” Jin Jin Long, 620 F.3d at
2 166.
3 Given that Singh met secretly with violent extremists
4 responsible for terrorist attacks in his hometown and did not
5 report that meeting to authorities, the agency reasonably
6 concluded the police had a legitimate reason to detain and
7 question him. See id.; Saleh v. U.S. Dep’t of Justice, 962 F.2d
8 234, 239 (2d Cir. 1992). Furthermore, the agency did not err
9 in concluding that the beating Singh suffered while detained,
10 although unacceptable, did not demonstrate a pretext for
11 political persecution. Singh was released the next day after
12 his village leader and brother convinced the police that he was
13 not a terrorist and paid a bribe, and Singh did not testify to
14 any facts from which the IJ could infer that the police continued
15 to harass him on account of his status as a Sikh or any imputed
16 political opinion. See Yueqing Zhang v. Gonzales, 426 F.3d
17 540, 545 (2d Cir. 2005) (“The applicant must . . . show, through
18 direct or circumstantial evidence, that the persecutor’s motive
19 to persecute arises from the applicant’s political belief.”).
20 The agency also did not err in concluding that Singh failed
21 to establish his eligibility for asylum and withholding based
4
1 on threats from Khalistani extremists. The extremists’
2 unfulfilled threats against Singh did not constitute past
3 persecution, see Gui Ci Pan v. U.S. Att’y General, 449 F.3d 408,
4 412-13 (2d Cir. 2006), and the IJ reasonably concluded that
5 Singh failed to establish the Indian government was unable or
6 unwilling to protect him from extremists. The evidence
7 revealed that the military actively combats separatists, that
8 police detained Singh for questioning after he secretly met with
9 extremists, that police from different jurisdictions cooperate
10 in investigating and prosecuting terrorist acts by extremists,
11 and that the Indian government has requested assistance from
12 foreign governments to combat extremists. See Pan v. Holder,
13 777 F.3d 540, 543 (2d Cir. 2015) (“Private acts can [] constitute
14 persecution if the government is unable or unwilling to control
15 such actions.”).
16 Nor did the agency err in concluding that, even if Singh
17 faces harm by police and extremists, he can safely relocate
18 within India to avoid persecution and torture. “An applicant
19 does not have a well-founded fear of persecution if the
20 applicant could avoid persecution by relocating to another part
21 of the applicant’s country of nationality . . . if under all
5
1 the circumstances it would be reasonable to expect the applicant
2 to do so.” 8 C.F.R. § 1208.13(b)(2)(ii); see also Surinder
3 Singh v. BIA, 435 F.3d 216, 219 (2d Cir. 2006).
4 As the IJ noted, Singh testified that, after his encounter
5 with extremists and police, he lived with his cousin in
6 Jalandhar on and off for approximately 19 months without harm,
7 despite the fact that the extremists who purportedly sought to
8 harm him were active in that city. Although Singh testified
9 that he was in hiding during that time, he did not explain what
10 that meant, and the IJ was not compelled to credit his statement.
11 Singh received his government pension, obtained a visa for the
12 United States, and travelled between India and the United States
13 twice during the time he was purportedly hiding. Cf. Majidi
14 v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
15 do more than offer a plausible explanation for his inconsistent
16 statements to secure relief; he must demonstrate that a
17 reasonable fact-finder would be compelled to credit his
18 testimony.” (internal quotation marks omitted)).
19 Because Singh avoided harm by relocating within India, the
20 IJ did not err in concluding that he could safely relocate and
21 thus failed to establish his eligibility for asylum,
6
1 withholding of removal, or CAT relief. See 8 C.F.R. §§
2 1208.13(b)(2)(ii), 1208.16(b)(2), (c)(3)(ii); see also
3 Surinder Singh, 435 F.3d at 219 (“Asylum in the United States
4 is not available to obviate re-location to sanctuary in one’s
5 own country.”).
6 Motion to Reopen
7 The BIA did not err in denying Singh’s motion to reopen
8 based on his failure to demonstrate his prima facie eligibility
9 for relief. See INS v. Abudu, 485 U.S. 94, 104-05 (1988).
10 Singh asserted a fear that the government of the new Hindu prime
11 minister would target him as a Sikh supporter of the Shiromani
12 Akali Dal Amritsar party, and that ISIL, which had set up a camp
13 near the India/Pakistan border, would target him to help them
14 train recruits. He submitted articles that several Sikh
15 political and religious leaders had been arrested but he did
16 not demonstrate that he was a similarly situated Sikh leader
17 or that the arrests were attributable to the national
18 government. Aside from his sworn statement that ISIL was
19 rumored to have a camp on the border of Pakistan and India, Singh
20 did not provide any objective evidence that ISIL is aware or
21 likely to become aware of his military service or seek his
7
1 expertise. See Abudu, 485 U.S. at 104-05; see also Hongsheng
2 Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008). Accordingly,
3 the BIA did not err in denying Singh’s motion to reopen for
4 failure to demonstrate his prima facie eligibility for relief.
5 See Abudu, 485 U.S. at 104-05.
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of removal
8 that the Court previously granted in this petition is VACATED,
9 and any pending motion for a stay of removal in this petition
10 is DISMISSED as moot. Any pending request for oral argument
11 in this petition is DENIED in accordance with Federal Rule of
12 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
13 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
8