Singh v. Garland ( 2023 )

20-4048
Singh v. Garland
BIA
Sponzo, IJ
A208 203 889
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 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 the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 10th day of August, two thousand
4 twenty-three.
5
6 PRESENT:
7 STEVEN J. MENASHI,
8 EUNICE C. LEE,
9 SARAH A. L. MERRIAM,
10 Circuit Judges.
11 _____________________________________
12
13 LOVEPREET SINGH,
14 Petitioner,
15
16 v. 20-4048
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22 FOR PETITIONER: Jaspreet Singh, Law Office of Jaspreet Singh,
23 Jackson Heights, NY.
1
2 FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney
3 General; Keith I. McManus, Assistant
4 Director; Scott M. Marconda, Trial Attorney,
5 Office of Immigration Litigation, United
6 States Department of Justice, Washington,
7 DC.
8 UPON DUE CONSIDERATION of this petition for review of a Board of
9 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
10 DECREED that the petition for review is DENIED.
11 Petitioner Lovepreet Singh, a native and citizen of India, seeks review of a
12 November 9, 2020 decision of the BIA affirming a May 18, 2018 decision of an
13 Immigration Judge (“IJ”) denying his application for asylum, withholding of
14 removal, and relief under the Convention Against Torture (“CAT”). In re
15 Lovepreet Singh, No. A 208 203 889 (B.I.A. Nov. 9, 2020), aff’g No. A 208 203 889
16 (Immigr. Ct. N.Y.C. May 18, 2018). We assume the parties’ familiarity with the
17 underlying facts and procedural history.
18 Under the circumstances, we have reviewed the IJ’s decision as
19 supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
20 2005). We review the agency’s legal conclusions de novo and its factual findings
21 for substantial evidence. Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013). “[T]he
22 administrative findings of fact are conclusive unless any reasonable adjudicator
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1 would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). An
2 asylum applicant has the burden to establish past persecution or a well-founded
3 fear of future persecution. See 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(b)(1).
4 To constitute persecution, the harm suffered or feared must be by the government
5 or by private actors that the government is unable or unwilling to control. See
6 Scarlett v. Barr, 957 F.3d 316, 331 (2d Cir. 2020) (“[A]n applicant seeking to establish
7 persecution based on [the] violent conduct of a private actor . . . must show that
8 the government [1] condoned the private actions or [2] at least demonstrated a
9 complete helplessness to protect the victims.” (internal quotation marks omitted)).
10 Singh alleged that members of the Shiromani Akali Dal Badal (“Badal”)
11 Party and the Bharatiya Janata Party (“BJP”) attacked him twice on account of his
12 membership in a rival party, the Shiromani Akali Dal Mann Amritsar (“SADA”).
13 A. Past Persecution
14 “[P]ersecution . . . encompasses a variety of forms of adverse treatment,
15 including non-life-threatening violence and physical abuse.” Ivanishvili v. U.S.
16 Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006) (internal quotation marks and
17 citation omitted). “[T]he difference between harassment and persecution is
18 necessarily one of degree that must be decided on a case-by-case basis.” Id.19 “[T]he degree must be assessed with regard to the context in which the
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1 mistreatment occurs.” Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006). A
2 beating outside the context of detention is not necessarily persecution. See Jian
3 Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011) (emphasizing importance of
4 context and upholding agency’s conclusion that minor beating by family planning
5 officials before an arrest by the police that caused only minor bruising, required
6 no formal medical attention, and had no lasting physical effect, did not rise to the
7 level of persecution); cf. Beskovic, 467 F.3d at 226 (explaining that a “minor beating
8 . . . may rise to the level of persecution if it occurred in the context of an arrest or
9 detention on the basis of a protected ground” (internal quotation marks omitted)).
10 That an individual’s attackers are members of a controlling political party does not
11 alone establish that they are government actors. See Jagdeep Singh v. Garland, 11
12 F.4th 106, 115 (2d Cir. 2021) (“An applicant’s allegation that he was persecuted by
13 members of a political party—even one that is in power nationally or, as
14 [petitioner] alleges of the Akali Dal Badal, is aligned with a party in power
15 nationally—does not establish that the applicant was persecuted by the
16 government. Members of a political party are not the government; for
17 mistreatment inflicted by party members to amount to persecution, an applicant
18 must show that the government was unwilling or unable to control the attackers.”
19 (footnote omitted)); Scarlett, 957 F.3d at 331 (“[A] close relationship between
4
1 government officials and private persons may be probative of the formers’
2 unwillingness or inability to control the latter, but the relationship alone does not
3 transform the private persons into government actors.”).
4 The agency reasonably concluded that Singh did not establish past
5 persecution. Singh testified that he was attacked twice by BJP and Badal party
6 members. He did not require hospitalization nor did he seek out or receive any
7 formal medical treatment after either incident. At no point was Singh detained
8 by authorities for his SADA membership. That his attackers were BJP and Badal
9 Party members does not establish that they were government actors. See Jagdeep
10 Singh, 11 F.4th at 115; Scarlett, 957 F.3d at 331. Absent some aggravating factor
11 such as an arrest on a protected ground, the agency did not err in concluding that
12 the harm did not constitute persecution. See Jian Qiu Liu, 632 F.3d at 822.
13 B. Future Persecution
14 Accordingly, Singh had the burden to establish an “objectively reasonable”
15 fear of future persecution. Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.
16 2004). Whether a fear is objectively reasonable “is largely dependent upon the
17 context and believability [an applicant] can establish for his claims through
18 presentation of reliable, specific, objective supporting evidence.” Id. (internal
19 quotation marks omitted); Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)
5
1 (holding that a fear is not objectively reasonable if it lacks “solid support” in the
2 record and is merely “speculative at best”).
3 Singh testified that he was attacked twice in the past by rival party members
4 and that when he reported the first attack, a police officer encouraged him to join
5 the BJP and Badal parties. His father’s affidavit reported that rival party
6 members came to their home after Singh left India and threatened to kill Singh.
7 Singh’s country conditions evidence concerned high-ranking political-party
8 members, not someone in his position, and reflected that while the police have
9 prevented SADA members from organizing, they have focused on party leaders.
10 Although there is evidence that rival party members may continue to target
11 Singh for his SADA activities, the agency did not err in concluding that Singh
12 failed to satisfy his burden to demonstrate an objective fear of future persecution.
13 As discussed above, the rival party members are not part of the government. See
14 Jagdeep Singh, 11 F.4th at 116 n.4. Singh was never harmed by the police, military,
15 or any government official in India, and the country conditions evidence does not
16 demonstrate mistreatment of Sikhs or regular SADA members or indicate that the
17 Indian government would be completely helpless to protect Singh, despite one
18 officer’s refusal to act on one occasion. See Scarlett, 957 F.3d at 331 (“the
19 unwilling-or-unable standard requires an applicant to show more than
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1 government failure to act on a particular report of an individual crime, or difficulty
2 controlling private behavior” (internal quotation marks omitted and alterations
3 adopted)).
4 Singh has not argued independent grounds for his CAT claim. Because
5 Singh’s asylum, withholding of removal, and CAT claims all rested on the same
6 factual basis, the agency’s denial of asylum is dispositive of all relief. Lecaj v.
7 Holder, 616 F.3d 111, 119–20 (2d Cir. 2010) (holding that an applicant who fails to
8 establish fear of harm required for asylum “necessarily” fails to meet higher
9 standards for withholding of removal and CAT relief).
10 For the foregoing reasons, the petition for review is DENIED. All pending
11 motions and applications are DENIED and stays VACATED.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe,
14 Clerk of Court
15
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