Singh v. Garland ( 2023 )

Case: 23-60117 Document: 00516901788 Page: 1 Date Filed: 09/20/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-60117
Summary Calendar FILED
____________ September 20, 2023
Lyle W. Cayce
Sukhmaan Singh, Clerk
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A208 191 787
______________________________
Before Barksdale, Engelhardt, and Wilson, Circuit Judges.
Per Curiam: *
Sukhmaan Singh, a native and citizen of India, petitions for review of
the Board of Immigration Appeals’ (BIA) denying his motion to reopen. He
contends the BIA erred by: determining he failed to demonstrate changed
country conditions; and failing to recognize the nexus between the changed
country conditions and his fear of persecution.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-60117
The BIA’s denial to reopen is reviewed understandably under a highly
deferential abuse-of-discretion standard. E.g., Nunez v. Sessions, 882 F.3d
499, 505 (5th Cir. 2018) (outlining standard of review). Its decision will not
be disturbed unless it is “capricious, racially invidious, utterly without
foundation in the evidence, or otherwise so irrational that it is arbitrary rather
than the result of any perceptible rational approach”. Id. (citation omitted).
“[T]o prevail on a motion to reopen alleging changed country conditions
where the persecution claim was previously denied based on an adverse
credibility finding in the underlying proceedings, the respondent must either
overcome the prior determination or show that the new claim is independent
of the evidence that was found to be not credible”. Matter of F-S-N-, 28 I. &
N. Dec. 1, 3 (BIA 2020) (denying motion to reopen).
Singh fails to overcome the prior adverse credibility determination. In
making it, the immigration judge (IJ) pointed out Singh gave inconsistent or
conflicting information regarding: the nature of his affiliation with the Mann
Party (Indian political party), several significant details about the first attack,
and his parents’ and brother’s affiliation with the Mann Party. The BIA
determined Singh’s motion failed to address the IJ’s adverse credibility
determination underlying the denial of the prior application. Singh also does
not attempt to address, before our court, the IJ’s concerns regarding the
inconsistencies in his testimony. Therefore, Singh fails to show the BIA’s
decision was “capricious, racially invidious, utterly without foundation in the
evidence, or otherwise so irrational that it is arbitrary rather than the result
of any perceptible rational approach”. Nunez, 882 F.3d 505 (citation
omitted).
Singh also fails in challenging the BIA’s conclusion that he did not
present a new claim independent from the evidence previously found not
credible. See F-S-N-, 28 I. & N. Dec. at 3. Singh’s motion to reopen required
“new facts” and to “be supported by affidavits or other evidentiary
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Case: 23-60117 Document: 00516901788 Page: 3 Date Filed: 09/20/2023
No. 23-60117
material”. 8 U.S.C. § 1229a(c)(7)(B) (outlining content required for motions
to reopen); 8 C.F.R. § 1003.2(c)(1) (outlining requirements for motions to
reopen before BIA); Nunez, 882 F.3d at 508.
The “new” allegations presented in Singh’s motion are: India passed
the Indian Agricultural Acts of 2020 and widespread protests resulted.
Singh’s new allegations rely on his affiliation with the Mann Party and the
alleged political persecution of its supporters—a continuation of his prior
claim and not independent of the adverse credibility determination
underlying the denial of the claim.
The evidence provided fails to prove a material change in country
conditions in India compared to the time of his 2017 merits hearing. At most,
the evidence shows “the continuation of a trend” or “incremental change”.
Nunez, 882 F.3d at 508–09 (holding neither sufficient to show changed
country conditions).
DENIED.
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