Gaganpreet Singh v. William Barr, U. S. Atty Gen ( 2020 )

Case: 19-60351 Document: 00515417050 Page: 1 Date Filed: 05/14/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-60351 May 14, 2020
Summary Calendar
Lyle W. Cayce
Clerk
GAGANPREET SINGH,
Petitioner
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A205 937 309
Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Gaganpreet Singh, a citizen and native of India, proceeding pro se, seeks
review of the Board of Immigration Appeals’ (BIA) dismissing his appeal of an
immigration judge’s (IJ) denial of his application for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT). Singh
contends the BIA erred in accepting the IJ’s: finding Singh had not suffered
past persecution; conducting a limited, incomplete, and conjectural analysis of
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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No. 19-60351
the feasibility of Singh’s relocating within India; not shifting the burden with
respect to the feasibility of internal relocation to respondent; and finding Singh
is not under direct threat of persecution at the acquiescence of government
officials for purposes of withholding of removal and CAT protection.
In considering the BIA’s decision (and the IJ’s decision, to the extent it
influenced the BIA), our court reviews legal conclusions de novo and factual
findings for substantial evidence. E.g., Orellana-Monson v. Holder, 685 F.3d
511, 517–18 (5th Cir. 2012) (citations omitted). The determinations an alien
is ineligible for asylum, withholding of removal, and CAT relief are each factual
findings. Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006) (citations
omitted). On substantial-evidence review, such factual findings will not be
disturbed “unless the court decides not only that the evidence supports a
contrary conclusion, but also that the evidence compels it”. Orellana-Monson,
685 F.3d at 518 (emphasis in original) (internal quotation marks and citation
omitted). Along that line, “petitioner has the burden of showing that the
evidence is so compelling that no reasonable factfinder could reach a contrary
conclusion”. Id. (internal quotation marks and citation omitted).
Regarding Singh’s seeking asylum, aliens who qualify as refugees are
eligible for it. 8 U.S.C. § 1158(b)(1)(A). “The term ‘refugee’ is statutorily
defined as a person who is outside their country and unable or unwilling to
return ‘because of persecution or a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular social group, or
political opinion.’” Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994) (quoting 8
U.S.C. § 1101(a)(42)(A)). In that regard, persecution is “the infliction of
suffering or harm, under government sanction, upon persons who differ in a
way regarded as offensive[,] . . . in a manner condemned by civilized
governments”. Abdel-Masieh v. INS, 73 F.3d 579, 583–84 (5th Cir. 1996)
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(alteration and citation omitted). “The harm or suffering need not be physical,
but may take other forms, such as the deliberate imposition of severe economic
disadvantage or the deprivation of liberty, food, housing, employment or other
essentials of life.” Id. (citation omitted).
In this instance, it was substantially reasonable for the BIA to conclude
that the facts adduced at the removal hearing did not rise to the level of
persecution, which is “an extreme concept that does not include every sort of
treatment our society regards as offensive”. Arif v. Mukasey, 509 F.3d 677, 680
(5th Cir. 2007) (citation omitted). And, Singh’s contention that the instant
facts are more egregious than those in similar instances where this court did
not find persecution does not compel a contrary conclusion. See Chun v. INS,
40 F.3d 76, 78 (5th Cir. 1994).
“To establish a well-founded fear of future persecution, an alien must
demonstrate a subjective fear of persecution, and that fear must be objectively
reasonable.” Zhao v. Gonzales, 404 F.3d 295, 307 (5th Cir. 2005) (emphasis
added) (internal quotation marks and citation omitted). “At a minimum, there
must be some particularized connection between the feared persecution and
the alien’s race, religion, nationality[, membership in a particular social group,
or political opinion].” Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994). To
show such a connection, the alien must “present specific, detailed facts showing
a good reason to fear that he or she will be singled out for persecution”. Id.
(emphasis in original) (internal quotation marks and citation omitted). That
said, “[a]n [asylum] applicant does not have a well-founded fear of persecution
if the applicant could avoid persecution by relocating to another part of the
applicant’s country of nationality . . . if under all the circumstances it would be
reasonable to expect the applicant to do so”. 8 C.F.R. § 208.13(b)(2)(ii).
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The BIA’s determination that Singh failed to demonstrate a well-founded
fear of future persecution because he did not meet his affirmative burden to
show that he could not relocate within India to avoid persecution was
substantially reasonable. Although Singh contends the BIA failed to assess a
number of relevant facts, including his rival political party’s nationwide
influence, the difficulty he would have finding work outside of Punjab, and the
prejudicial effect of his visibly Sikh identity, Singh cites no record evidence
supporting his positions on those points. Furthermore, because, as discussed
above, Singh failed to demonstrate past or government-sanctioned persecution,
the burden never shifted from him to prove the unfeasibility of internal
relocation. See 8 C.F.R. § 208.13(b)(3)(i).
Because Singh “failed to establish the less stringent well-founded fear
standard of proof required for asylum relief”, he cannot meet the more
stringent burden for showing entitlement to withholding of removal. Dayo v.
Holder, 687 F.3d 653, 658–59 (5th Cir. 2012) (internal quotation marks and
citation omitted).
Finally, we lack jurisdiction to consider Singh’s claim of eligibility for
CAT protection because he failed to address it before the BIA, and the BIA did
not consider it sua sponte. See Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir.
2004) (citations omitted).
DISMISSED IN PART and DENIED IN PART.
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