Singh v. Garland

19-1607
Singh v. Garland
BIA
Kolbe, IJ
A208 203 370
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
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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 TO 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 7th day of February, two thousand twenty-
two.
PRESENT:
RAYMOND J. LOHIER, JR.,
SUSAN L. CARNEY,
MICHAEL H. PARK,
Circuit Judges.
_____________________________________
SUKHWINDER SINGH, AKA SUKHI
THAPA,
Petitioner,
v. 19-1607
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Deepti Vithal, Esq., Richmond
Hill, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant
Attorney General, Office of
Immigration Litigation; Zoe J.
Heller, Senior Litigation Counsel;
Katherine A. Smith, 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 Sukhwinder Singh, a native and citizen of
India, seeks review of a May 3, 2019 decision of the BIA
affirming a November 2, 2017 decision of an Immigration Judge
(“IJ”) denying his application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Sukhwinder Singh, No. A208 203 370 (B.I.A.
May 3, 2019), aff’g No. A 208 203 370 (Immig. Ct. N.Y. City
Nov. 2, 2017). We assume the parties’ familiarity with the
underlying facts and procedural history.
We have reviewed the decision of the IJ as supplemented
by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
Cir. 2005). The applicable standards of review are well
established. See Lecaj v. Holder, 616 F.3d 111, 114 (2d Cir.
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2010).
To establish eligibility for asylum, Singh was required
to show that he suffered past persecution, or that he has a
well-founded fear of future persecution, on account of his
“race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C.
§§ 1101(a)(42), 1158(b)(1)(B)(i). “Private acts can . . .
constitute persecution if the government is unable or
unwilling to control such actions.” Pan v. Holder, 777 F.3d
540, 543 (2d Cir. 2015). When a petitioner establishes past
persecution, the agency applies a presumption of a well-
founded fear of future persecution. 8 C.F.R.
§ 1208.13(b)(1). The Government may rebut that presumption
by showing, by a preponderance of the evidence, that “[t]here
has been a fundamental change in circumstances such that the
applicant no longer has a well-founded fear of persecution.”
8 C.F.R. § 1208.13(b)(1)(i)(A), (ii); see also Lecaj, 616
F.3d at 115. Here, the agency reasonably concluded that,
even assuming members of the Dera Sacha Sauda (“DSS”), a
spiritual organization led by Gurmeet Ram Rahim Singh (“Ram
Rahim”), persecuted Singh in 2015 and the Indian government
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was unable or unwilling to control the group at the time, the
government rebutted the presumption of a well-founded fear of
future persecution.
As the IJ found, in 2017, the Indian government
successfully prosecuted Ram Rahim, the cult-like leader of
DSS, for sexual assault. He was sentenced to 20 years in
prison. After Ram Rahim’s conviction, DSS members clashed
with security forces and destroyed public and private
property resulting in approximately 38 deaths. The local
government of the state where the DSS ashram is located was
criticized for failing to prepare for or prevent the violence.
But, as the IJ noted, when Ram Rahim was sentenced, the
government instituted numerous successful measures to prevent
DSS members from committing further violence. The reports
prepared by the State Department and the U.S. Commission on
International Religious Freedom do not state that DSS members
commit violence against other citizens. Because the evidence
supports the finding that there has been a fundamental change
in circumstances since Singh was harmed in 2015, the agency
did not err in finding that Singh had no well-founded fear of
future persecution and on that basis in denying asylum,
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withholding of removal, and CAT relief. * See 8 C.F.R.
§ 1208.13(b)(1)(i)(A), (ii); see also Lecaj, 616 F.3d at 116–
20.
We do not reach that part of the BIA’s decision in which
it declined to remand to the IJ for consideration of new
evidence, because Singh does not challenge that ruling. See
Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.
2005) (finding abandoned issues and claims not raised in
opening brief). We lack jurisdiction to consider Singh’s
humanitarian asylum claim because he did not raise it before
the agency. See Karaj v. Gonzales, 462 F.3d 113, 119 (2d
Cir. 2006) (citing Beharry v. Ashcroft, 329 F.3d 51, 59 (2d
Cir. 2003)).
* The Government incorrectly contends that Singh waives his
CAT claim. The agency denied that relief because Singh
failed to satisfy his burden for asylum; thus, his challenge
to asylum necessarily includes a challenge to the denial of
CAT protection.
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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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