Kapoor v. Garland ( 2023 )

21-6240
Kapoor v. Garland
BIA
Christensen, IJ
A205 942 440
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.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 11th day of September, two thousand
twenty-three.
PRESENT:
RICHARD J. SULLIVAN,
ALISON J. NATHAN,
SARAH A. L. MERRIAM,
Circuit Judges.
_____________________________________
VIPUN KAPOOR,
Petitioner,
v. 21-6240
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
____________________________________
FOR PETITIONER: Suraj Raj Singh, Esq., Richmond Hill, NY.
FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant
Attorney General; David J. Schor, Senior
Litigation Counsel; Sarah K. Pergolizzi, Trial
Attorney, Office of Immigration Litigation,
United States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioner Vipun Kapoor, a native and citizen of India, seeks review of a
March 26, 2021 decision of the BIA affirming a December 18, 2018 decision of an
Immigration Judge (“IJ”) denying his application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). In re Vipun
Kapoor, No. A 205 942 440 (B.I.A. Mar. 26, 2021), aff’g No. A 205 942 440 (Immigr.
Ct. N.Y.C. Dec. 18, 2018). We assume the parties’ familiarity with the underlying
facts and procedural history.
We have considered both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). We review factual findings for substantial evidence and review questions
of law and the application of law to fact de novo. See Yanqin Weng v. Holder, 562
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F.3d 510, 513 (2d Cir. 2009). “[T]he administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B).
An applicant for asylum or withholding of removal must establish past
persecution or a sufficient likelihood of future persecution and that “race, religion,
nationality, membership in a particular social group, or political opinion was or
will be at least one central reason for persecuting the applicant.” 8
U.S.C. § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A); 8 C.F.R. §§ 1208.13(b),
1208.16(b). “To qualify as persecution the conduct at issue must be attributable to
the government, whether directly because engaged in by government officials, or
indirectly because engaged in by private persons whom the government is unable
or unwilling to control.” Scarlett v. Barr, 957 F.3d 316, 328 (2d Cir. 2020) (internal
quotation marks omitted); see also Ivanishvili v. U.S. Dep’t of Just., 433 F.3d 332, 342
(2d Cir. 2006) (“[I]t is well established that private acts may be persecution if the
government has proved unwilling to control such actions.”).
“Under the unwilling-or-unable standard, ‘a finding of persecution
ordinarily requires a determination that government authorities, if they did not
actually perpetrate or incite the persecution, condoned it or at least demonstrated
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a complete helplessness to protect the victims.’” Singh v. Garland, 11 F.4th 106,
114–15 (2d Cir. 2021) (quoting Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000)).
Notably, “[m]embers of a political party are not the government,” and therefore
“for mistreatment inflicted by party members to amount to persecution, an
applicant must show that the government was unwilling or unable to control the
attackers.” Id. at 115.
Kapoor alleged that he was assaulted by and feared persecution from
members of his girlfriend’s family and associates, who objected to their
relationship and potential marriage because he and his girlfriend were of different
castes and religions. He therefore had the burden to establish that (1) his
attackers were government actors, or (2) if they were private actors, the
government was unwilling or unable to control them. To this end, Kapoor
affirmed that his girlfriend’s family members and fellow members of the Badal
Party assaulted him three times in an effort to break up the relationship before he
fled India for the United States. While he and his mother reported the first
assault, he testified that he did not report the later assaults because the police did
not act on the first report and he believed the police were aligned with the Badal
Party.
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On this record, Kapoor did not establish that his attackers were government
actors. Members of a political party, even one in power, are not the government.
Id. Kapoor presented no evidence, other than his own speculation, that his
attackers were linked to government officials or the police as to demonstrate that
the purported assaults were anything more than a personal dispute over his
relationship. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 157–58 (2d Cir.
2008) (“[W]hen a petitioner bears the burden of proof, his failure to adduce
evidence can itself constitute the ‘substantial evidence’ necessary to support the
agency’s challenged decision.”). Even if we were to accept that Kapoor’s
attackers were members of the Badal Party with some influence over local officials,
Kapoor still did not show that they were themselves public officials or that they
acted on the instructions of any government official.
Kapoor also did not show that the government was unable or unwilling to
protect him. He did not provide evidence other than his own speculation that his
girlfriend’s family had been in contact or had influence with the police. Cf. Pan v.
Holder, 777 F.3d 540, 545 (2d Cir. 2015) (remanding where petitioner credibly
testified that the police would ignore reports of persecution unless they “receiv[ed]
something in exchange” and the allegation was supported by country conditions
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evidence and testimony of a similarly situated witness). And although the
country conditions evidence indicates that honor killings remain a problem in
India, it does not reflect that the government condones them or refuses to
intervene. A 2017 State Department report and a 2019 report from the
Immigration and Refugee Board of Canada note that honor killings by families
objecting to inter-faith or inter-caste marriages continued to be a problem in
Kapoor’s home state of Punjab. However, the State Department report reflects
that India’s supreme court solicited suggestions from non-governmental
organizations about how to end the practice, and there was evidence
demonstrating that honor killings (including one of a lower-caste man involved
with an upper-caste woman and one committed by a government official) were
investigated. Moreover, the Indian constitution prohibits caste discrimination,
and reporting reflects that the influence of the caste system has greatly declined
and inter-caste marriages have become more common. On this record, the
agency reasonably concluded that Kapoor did not meet his burden to establish
that government authorities would be unwilling or unable to protect him. See
Scarlett, 957 F.3d at 328. Because Kapoor failed to establish eligibility for asylum,
he “necessarily” failed to meet his burden for withholding of removal. See Lecaj
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v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010).
Nor did Kapoor demonstrate that he would “more likely than not” be
tortured if he were forced to return to India as to warrant withholding of removal
under the CAT. 8 C.F.R. § 1208.16(c)(2). “Torture is . . . any act by which severe
pain or suffering, whether physical or mental, is intentionally inflicted,” and “is
an extreme form of cruel and inhuman treatment [that] does not include lesser
forms of cruel, inhuman[,] or degrading treatment or punishment.” Id.§ 1208.18(a)(1), (2). “In assessing whether it is more likely than not that an
applicant would be tortured in the proposed country of removal,” the agency must
consider “(i) Evidence of past torture inflicted upon the applicant; (ii) Evidence
that the applicant could relocate to a part of the country of removal where he or
she is not likely to be tortured; (iii) Evidence of gross, flagrant or mass violations
of human rights within the country of removal, where applicable; and (iv) Other
relevant information regarding conditions in the country of removal.” Id. §
1208.16(c)(3)(i)–(iv).
The IJ did not err in concluding that Kapoor’s past assaults did not rise to
the level of torture because the first assault left him with scratches on his knees
and arms and did not require hospitalization; the second assault caused his arm
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to swell and a village doctor treated him at home with an ointment; and he did not
testify to requiring any medical treatment after the third incident, when his
girlfriend’s father and brother slapped him and he pushed the father. “[T]orture
requires proof of something more severe than the kind of treatment that would
suffice to prove persecution.” Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d Cir.
2006). Given the country conditions evidence of government efforts to curb
honor killings and prohibitions on caste discrimination, as well as the absence of
past torture, substantial evidence supports the conclusion that Kapoor failed to
demonstrate that he would face the requisite likelihood of future torture were he
to return to India. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In
the absence of solid support in the record . . . [an applicant’s] fear is speculative at
best.”).
For the foregoing reasons, the petition for review is DENIED. All pending
motions and applications are DENIED and stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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