Palvindra Singh v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 29 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PALVINDRA SINGH, No. 20-72614
Petitioner,
Agency Nos. A208-549-493
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 14, 2022**
San Francisco, California
Before: SILER,*** S.R. THOMAS, and CALLAHAN, Circuit Judges.
Palvindra Singh (“Singh”) petitions to review the Board of Immigration
Appeals’ (“BIA”) final removal order. Our jurisdiction is governed by 8 U.S.C. §
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
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1252. We deny the petition regarding the removal order because the BIA’s denial of
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”) is supported by substantial evidence. Plancarte v. Garland, 9 F.4th
1146, 1151 (9th Cir. 2021) (quoting Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th
Cir. 2000).
1. Singh claims he is entitled to asylum and withholding of removal as he cannot
return to India “because of persecution or a well-founded fear of persecution on
account of . . . membership in a particular social group, or political opinion.” See 8
U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A).
To establish eligibility for asylum based on past persecution, “an applicant
must show: (1) an incident, or incidents, that rise to the level of persecution; (2) that
is on account of one of the statutorily-protected grounds; and (3) is committed by
the government or forces the government is either unable or unwilling to control.”
Navas v. INS, 217 F.3d 646, 655-56 (9th Cir. 2000).1
Singh claims he was persecuted twice on account of his membership in the
Bahujan Samaj Party (“BSP”), a minority political party; first, by a group of four
men from a rival political party that physically assaulted him near his hometown;
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A similar, more stringent, standard applies to withholding of removal eligibility. 217 F.3d at 655.
A petitioner requesting withholding of removal must show a clear probability of future
persecution, which is presumed if the petitioner can establish past persecution. Id.2
and second, by local police that hit him and tore his clothes, allegedly because of his
affiliation with BSP. Both instances resulted in minor, temporary pain.2 Considering
these events, the BIA concluded that Singh suffered past persecution.
Establishing past persecution for either asylum or withholding of removal
relief entitles the petitioner to a rebuttable presumption of future persecution. 8
C.F.R. §§ 1208.13(b)(1); 1208.16(b)(1)(i). One way that the Department of
Homeland Security (“DHS”) can rebut a petitioner’s presumption of future
persecution is to demonstrate the “[petitioner] could avoid future persecution by
relocating to another part of the [petitioner’s] country of nationality . . . and, under
all circumstances, it would be reasonable to expect the [petitioner] to do so.” 8 C.F.R.
§§ 1208.13(b)(1)(i)(B); 1208.16(b)(1)(i)(B); see Singh v. Whitaker, 914 F.3d 654,
661 (9th Cir. 2019).
DHS provided substantial evidence that Singh could reasonably relocate
within India to avoid future persecution. The BIA agreed. There are regions in India
where Singh’s party is the dominant and controlling party. In those regions, BSP
members are not at risk of persecution on the basis of their political opinion.
Moreover, the law in India provides for freedom of movement and the government
generally respects those rights. The BIA and IJ conducted an individualized analysis
2
Following these encounters Singh fled to Mumbai, over 900 miles away from his home in Khutar,
India, and boarded an international shipping vessel that eventually berthed in Davant, Louisiana.
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and reasonably concluded that Singh could relocate within India. Substantial
evidence does not compel a contrary conclusion to the one reached by the BIA
regarding Singh’s petition for asylum or withholding from removal.
2. Next, Singh argues the BIA failed to conduct a proper analysis of whether he
is eligible for CAT relief. For CAT relief a petitioner must establish: (1) it is more
likely than not he will suffer harm severe enough to constitute torture; and (2) the
torture would occur at the hands of a government official, or with the acquiescence
of a government official. 8 C.F.R. §§ 1208.16(c)(2); 1208.18(a)(2), (a)(1). Further,
a petitioner must demonstrate that he or she faces a “particularized threat” of torture,
not a threat of torture in the abstract nor merely a showing that torture occurs in the
country of removal. 8 C.F.R. § 1208.16(c)(2); see Almaghzar v. Gonzales, 457 F.3d
915, 922 (9th Cir. 2006). Singh does not meet his burden for CAT relief.
First, the two instances of violence against Singh do not constitute torture.
Torture is “severe pain or suffering” resulting from extreme or cruel treatment. 8
C.F.R. § 1208.18(a). Singh was hurt in the encounters; he had some abdominal
discomfort both times and a bloody nose from his police interrogation. Afterwards
Singh visited a doctor, obtained pain medication, and did not express any significant
health concerns. Record evidence does not suggest he endured severe pain or
suffered. Singh, in short, was not tortured in the past.
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Second, even if Singh suffered torture in the past his demonstrated ability to
reasonably relocate within India makes it improbable that he will face torture in the
future. We have held that reasonable relocation is a relevant consideration when
determining whether a petitioner is eligible for CAT protection. Singh, 914 F.3d at
663. Substantial evidence shows that Singh is unlikely to be tortured for his political
affiliation in other areas of India.
Third, to be eligible for CAT protection Singh must show that he faces a
particularized threat of future torture. 8 C.F.R. § 1208.16(c)(2). Singh has shown
that political violence occurs in India, but he has failed to show how that amounts to
a particularized threat to him should he be repatriated.
The administrative record demonstrates that Singh has not been tortured in the
past, he is not likely to be tortured in the future, and he can reasonably relocate within
India to mitigate the risk of future torture.
The petition for review is denied and petitioner’s motion for stay of removal
is denied as moot.
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