Singh v. Garland ( 2021 )

Case: 20-60120 Document: 00515888366 Page: 1 Date Filed: 06/04/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 4, 2021
No. 20-60120 Lyle W. Cayce
Clerk
Gurbhej Singh,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A201 686 535
Before Dennis and Engelhardt, Circuit Judges, and Hicks, Chief
District Judge.*
Per Curiam: †
Gurbhej Singh, a native and citizen of India, petitions for review of the
order of the Board of Immigration Appeals (BIA) dismissing his appeal of the
immigration judge’s denial of his applications for asylum, withholding of
*
Chief Judge of the Western District of Louisiana, sitting by designation.
†
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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removal, and relief under the United Nations Convention Against Torture
(CAT). He also seeks, for the first time in any forum, a discretionary grant
of humanitarian asylum. We lack jurisdiction to consider Singh’s
unexhausted request for humanitarian asylum. 1 See Roy v. Ashcroft, 389 F.3d
132, 137 (5th Cir. 2004). In all other respects, we deny the petition for review.
Singh fails to show that the BIA’s decision to deny his asylum
application was unsupported by substantial evidence. See Zhang v. Gonzales,
432 F.3d 339, 344 (5th Cir. 2005); Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444
(5th Cir. 2001). Neither the beatings and taunting Singh received at the
hands of Congress Party adherents nor his prolonged detention by local
police rise to the level that the BIA’s finding of no past persecution was so
contrary to the evidence as to be untenable. See, e.g., Eduard v. Ashcroft, 379
F.3d 182, 187-88 (5th Cir. 2004); Tesfamichael v. Gonzales, 469 F.3d 109, 117
(5th Cir. 2006). Nor did Singh establish a likelihood of future persecution if
removed to India. See Tesfamichael, 469 F.3d at 113. Specifically, by
inadequately briefing the issue, Singh abandoned any argument that the
Board’s finding that he could safely relocate within India was error. See Mejia
v. Whitaker, 913 F.3d 482, 490 (5th Cir. 2019). In any event, the record
evidence does not compel a finding contrary to the BIA’s on the question of
internal relocation. See Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir.
2009).
1
An alien who lacks a well-founded fear of future persecution may nonetheless
qualify for “humanitarian asylum” by demonstrating that, in light of the severity of past
persecution he or she experienced, there are compelling reasons that the alien is unwilling
or unable to return to his or her country of origin. Compare Shehu v. Gonzales, 443 F.3d
435, 440 (5th Cir. 2006) (citing 8 C.F.R. § 208.13(b)(1)(iii)(A)) with Matter of Chen, 20 I.
& N. Dec. 16, 19 (BIA 1989). This method of qualifying for asylum is distinguishable from
the more common approach of establishing a likelihood that the alien will experience future
persecution if removed, and Singh raised contentions regarding only the latter option while
arguing before the immigration judge and BIA.
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Because he failed to meet the standard for asylum, Singh necessarily
cannot meet the more stringent standard for obtaining withholding of
removal. See Dayo v. Holder, 687 F.3d 653, 658-59 (5th Cir. 2012); Efe v.
Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002). Regardless, Singh has failed to
brief, and has therefore waived, the issue of withholding of removal. See
Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
Finally, with respect to his application for CAT relief, Singh points to
no record evidence showing that the Indian government would acquiesce to
any torture he would suffer if returned to India. See generally Chen v.
Gonzales, 470 F.3d 1131, 1139 (5th Cir. 2006). Insofar as Singh relies largely
on evidence of general country conditions to establish the likelihood of
torture, “[g]eneralized country evidence tells us little about the likelihood
state actors will torture any particular person.” Qorane v. Barr, 919 F.3d 904,
911 (5th Cir. 2019). And to the extent Singh failed to show that the actions
of local police constituted persecution, “[i]t follows a fortiori [that] they do
not constitute torture.” Id. Singh fails to demonstrate error in the decision
to deny CAT relief. See Chen, 470 F.3d at 1139; Zhang, 432 F.3d at 344.
For the foregoing reasons, the petition for review is DENIED.
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James L. Dennis, Circuit Judge, specially concurring:
This case implicates an error in this circuit’s caselaw that I previously
noted in Gjetani v. Barr, 968 F.3d 393, 400 (5th Cir. 2020) (Dennis, J.,
dissenting). Although the Immigration Judge (IJ) and Board of Immigration
Appeals (BIA) found the petitioner Gurbhej Singh to be credible, they denied
his application for asylum on the ground that the two attacks he endured as a
result of his membership in the Shiromani Akali Dal Amritsar Mann political
party were not severe enough to amount to persecution within the meaning
of 8 U.S.C. § 1101(a)(42)(A). In accordance with the majority’s holding in
Gjetani, 968 F.3d at 396-97 & n.2, the court today considers whether this
ruling is supported by “substantial evidence,” a highly deferential standard
of review that is normally reserved for the BIA’s factual determinations. See
id. at 396 (quoting Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005)). But
determining what Congress meant by the statutory term “persecution” and
applying that standard to a set of undisputed facts “is a basic matter of
statutory interpretation, which is a quintessential question of law.” Id. at 401(Dennis, J., dissenting) (internal quotes omitted); see also Guerrero-Lasprilla
v. Barr, 140 S. Ct. 1062, 1068 (2020) (holding that “the application of a legal
standard to undisputed or established facts” is a “question of law” within
the meaning of the Immigration and Nationality Act).
Indeed, in instructing us to apply the substantial evidence standard to
the BIA’s interpretation of “persecution,” our precedents mandate a
nonsensical analysis. When reviewing for substantial evidence, we look to
the record to determine whether “the evidence is so compelling that no
reasonable factfinder could reach a contrary conclusion” on the matter. Chen
v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). This makes sense when we
are reviewing an actual factual finding; if the record contains transcripts of all
of the witnesses testifying that “A” happened and a video of “A” occurring,
but the BIA nonetheless finds that “A” did not occur, the record probably
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compels a contrary finding. But what possible evidence could the record
contain on the question of what Congress meant when it used the term
“persecution” in 8 U.S.C. § 1101(a)(42)(A)? We generally do not require
asylum applicants to introduce as evidentiary exhibits copies of the text of the
asylum statute or the committee reports from when the statute was enacted,
and so the record will almost never contain “evidence” bearing on whether
the BIA was right or wrong about how 8 U.S.C. § 1101(a)(42)(A) should be
interpreted.
Instead, the question of whether a set of undisputed facts fit the
statutory term “persecution” should be reviewed as a question of law, and
“the BIA’s interpretation” should be “due deference, if at all, only to the
extent called for under the familiar Chevron framework.” Gjetani, 968 F.3d
at 401 (Dennis, J., dissenting) (citing Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 841 (1984)). Like in Gjetani, the Government
does not argue here that “persecution” “is the type of ‘ambiguous statutory
term’ for which ‘the BIA should be accorded Chevron deference as it gives
the word concrete meaning through a process of case-by-case
adjudication.’” 1 968 F.3d at 401 (Dennis, J., dissenting) (alteration omitted)
(quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999)); cf. INS v.
Cardoza-Fonseca, 480 U.S. 421, 448–449 (1987) (holding that the phrase
“well-founded fear,” which is also found in 8 U.S.C. § 1101(a)(42)(A), is
ambiguous for Chevron purposes). In the absence of such an argument, we
1
“Were that the case, we would examine the BIA’s interpretation to decide if it is
unreasonable or clearly contrary to congressional intent, as well as whether its application
was consistent with the agency's past precedents.” Gjetani, 968 F.3d at 401 n.2 (Dennis,
J., dissenting); see Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (holding agency
statutory interpretations that are adopted without a reasoned explanation for a change of
course are not entitled to Chevron deference); Laclede Gas Co. v. F.E.R.C., 722 F.2d 272,
275 (5th Cir. 1984) (“An agency must either conform to its prior precedent or explain its
reasoning for departure from that precedent.”).
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should apply ordinary de novo review, utilizing the standard canons of
construction and our independent judgement to decide whether the
undisputed attacks Singh suffered as a result of his political affiliation amount
to persecution under 8 U.S.C. § 1101(a)(42)(A).
Nevertheless, under this circuit’s rule of orderliness, Gjetani is
binding precedent until the en banc court or the Supreme Court says
otherwise. See Mercado v. Lynch, 823 F.3d 276, 279 (5th Cir. 2016). And,
although I believe it is an incoherent question to ask in this context, it is true
that there is no evidence in the record about the correct way to interpret the
term “persecution” in 8 U.S.C. § 1101(a)(42)(A). The record obviously
cannot compel the conclusion that the BIA is misinterpreting 8 U.S.C.
§ 1101(a)(42)(A) when it has nothing at all to say on the matter, and I thus
cannot say that the court incorrectly applies the substantial evidence
standard that we are bound to utilize. I therefore concur.
6