Singh v. Garland

20-2009
Singh v. Garland
BIA
Poczter, IJ
A208 617 318
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 APPELLATE PROCEDURE 32.1 AND THIS
COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 31st day of January, two thousand twenty-
5 three.
6
7 PRESENT:
8 RICHARD J. SULLIVAN,
9 WILLIAM J. NARDINI,
10 EUNICE C. LEE,
11 Circuit Judges.
12 _____________________________________
13
14 RANJIT SINGH,
15 Petitioner,
16
17 v. 20-2009
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Deepti Vithal, Richmond Hill, NY.
25
26 FOR RESPONDENT: Brian Boynton, Acting Assistant
27 Attorney General; Jonathan
28 Robbins, Senior Litigation
1 Counsel; Yanal H. Yousef, Trial
2 Attorney, Office of Immigration
3 Litigation, United States
4 Department of Justice, Washington,
5 DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Ranjit Singh, a native and citizen of India,
11 seeks review of a May 29, 2020 decision of the BIA affirming
12 a March 6, 2018 decision of an Immigration Judge (“IJ”)
13 denying his application for asylum, withholding of removal,
14 and relief under the Convention Against Torture (“CAT”).
15 In re Ranjit Singh, No. A208 617 318 (B.I.A. May 29, 2020),
16 aff’g No. A208 617 318 (Immigr. Ct. N.Y.C. Mar. 6, 2018). We
17 assume the parties’ familiarity with the underlying facts and
18 procedural history.
19 We have reviewed both the IJ’s and the BIA’s opinions
20 “for the sake of completeness.” Wangchuck v. Dep’t of
21 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
22 factual findings for substantial evidence and questions of
23 law de novo. Yanqin Weng v. Holder, 562 F.3d 510, 513
24 (2d Cir. 2009); see also 8 U.S.C. § 1252(b)(4)(B) (“The
2
1 administrative findings of fact are conclusive unless any
2 reasonable adjudicator would be compelled to conclude to the
3 contrary.”).
4 Asylum, Withholding of Removal, and CAT Relief
5 The agency found that Singh suffered persecution when
6 workers for the Prakash Singh Badal Party (“Badal”) and
7 Bharatiya Janata Party (“BJP”) twice attacked him in 2015
8 because of his membership in the Shiromani Akali Dal Amritsar
9 Party (“Mann Party”). Having established past persecution,
10 Singh was entitled to a presumption of a well-founded fear
11 and likelihood of future persecution as required for asylum
12 and withholding of removal. 8 C.F.R. §§ 1208.13(b)(1),
13 1208.16(b)(1). Nevertheless, the government may rebut this
14 presumption of future persecution if it establishes by a
15 “preponderance of the evidence” that the applicant can “avoid
16 future persecution by relocating to another part of the
17 applicant’s country of nationality . . . , and under all the
18 circumstances, it would be reasonable to expect the applicant
19 to do so.” 8 C.F.R. § 1208.13(b)(1); see also id.20 § 1208.16(b)(1)(stating standard for rebutting presumption in
21 withholding context).
22 The agency did not err in concluding that Singh could
3
1 avoid future persecution by relocating from his home state of
2 Punjab to another part of India. In his application and
3 testimony, Singh asserted that he believed that he could not
4 safely live anywhere in India because the BJP controls the
5 national government, government officials would refuse to
6 help Mann Party workers, and the BJP would be able to find,
7 attack, and kill him. But the documentary evidence reflects
8 that India is a vast country with a population of
9 approximately 1.2 billion that lacks a central-registration
10 system that would enable officials to locate an individual
11 either within or outside his state. Further, Singh did not
12 articulate a reason that his former persecutors (who were
13 local party workers, not the police or other government
14 officials) would attempt to locate him in another area of
15 India, given his position in the party, which was not
16 prominent. Cf. Jagdeep Singh v. Garland, 11 F. 4th 106,
17 115–16 (2d Cir. 2021) (holding that “persecut[ion] by members
18 of a political party — even one that is in power nationally
19 or . . . aligned with a party in power nationally — does not
20 establish that the applicant was persecuted by the
21 government,” and the agency is not “required to attribute an
22 attack by members of a regional party in Punjab to the
4
1 national government of India”). Although a human rights
2 organization reported vigilante violence against religious
3 minorities and government critics, it did not identify abuses
4 of Mann Party members, and it went on to identify Muslims as
5 the primary focus of attacks on minority religious groups.
6 Likewise, a U.S. State Department report did not identify
7 abuses of Mann Party members as a concern; it further noted
8 that Indian law provides for freedom of internal movement,
9 and the government generally respected that right.
10 Having found that Singh could avoid persecution by
11 relocating to any state outside of Punjab, the agency was not
12 required to identify a more specific place where Singh could
13 relocate. See 8 C.F.R. §§ 1208.13(b)(1)(i)(B) (requiring the
14 government to show relocation to “another part” of the country
15 is reasonable), 1208.16(b)(1)(i)(B) (same); Matter of M-Z-M-
16 R-, 26 I. & N. Dec. 28, 33 n.5 (B.I.A. 2012) (requiring the
17 government to show there is an area for safe relocation, but
18 concluding burden can be met by showing that conditions
19 outside of the home region “were not such that the applicant
20 would have a well-founded fear”).
21 Further, the record does not compel the conclusion that
22 relocation would be unreasonable under the circumstances.
5
1 See 8 C.F.R. § 1208.13(b)(3)(ii)(version in effect until
2 Nov. 8, 2018). 1 In determining whether internal relocation
3 is reasonable, the IJ considers any relevant factors, which
4 may include “whether the applicant would face other serious
5 harm in the place of suggested relocation; any ongoing civil
6 strife within the country; administrative, economic, or
7 judicial infrastructure; geographical limitations; and social
8 and cultural constraints, such as age, gender, health, and
9 social and familial ties.” 8 C.F.R. §§ 1208.13(b)(3)(version
10 in effect until Nov. 8, 2017), 1208.16(b)(3) (version in
11 effect until Jan. 10, 2021). As Singh argues, the IJ did not
12 specifically address whether his Sikh religious identity or
13 Punjabi language rendered relocation unreasonable, and the
14 BIA did not supplement the IJ’s decision on this point. 2 But
1Section 1208.13(b)(3)(ii) has since been amended to place
the burden on the petitioner to rebut a presumption that
internal relocation would not be reasonable in cases like
Singh’s where the persecutor is a non-governmental entity.
Procedures for Asylum and Withholding of Removal; Credible
Fear and Reasonable Fear Review, 85 Fed. Reg. 80274, 80281
(Dec. 11, 2020). However, because the IJ adjudicated Singh’s
case prior to that amendment, we apply the older version of
the regulation, which did not contain this presumption of
reasonableness. See 8 C.F.R. § 1208.13(b)(3)(ii) (version
in effect until Nov. 8, 2018).
2 Contrary to Singh’s argument, the IJ made a finding
regarding the likelihood of harm based on his political
expression as a Mann Party supporter. There are no grounds
6
1 while the agency’s findings are limited on these issues, the
2 record does not compel the conclusion that relocation would
3 be unreasonable because there is no evidence of
4 discrimination on these grounds in the country reports. See
5 Jagdeep Singh, 11 F.4th at 117 (finding on largely similar
6 facts that petitioner’s “evidence d[id] not compel the
7 conclusion that it would be unreasonable to expect him to
8 relocate internally to avoid future persecution”); Hui Lin
9 Huang v. Holder, 677 F.3d 130, 138 (2d Cir. 2012) (“Our case
10 law has already approved the BIA’s consideration and use of
11 State Department country reports.”). Further, while Singh
12 submitted evidence of abuse of Sikhs and members of Sikh
13 political groups, those incidents occurred in Punjab. There
14 is no reason to conclude that the IJ failed to consider the
15 evidence, and the agency is not required to “expressly parse
16 or refute on the record each individual argument or piece of
17 evidence offered by the petitioner.” Zhi Yun Gao v. Mukasey,
18 508 F.3d 86, 87 (2d Cir. 2007); see Xiao Ji Chen v. U.S. Dep’t
19 of Just., 471 F.3d 315, 336 n.17 (2d Cir. 2006) (“[W]e presume
to conclude that the IJ assumed that Singh would not continue
that expression upon relocation, and there is no reason that
the IJ should have repeated the finding in the reasonableness
analysis.
7
1 that an IJ has taken into account all of the evidence before
2 him, unless the record compellingly suggests otherwise.”).
3 On this record, the agency reasonably concluded that the
4 government rebutted the presumption of future persecution as
5 required for asylum and withholding of removal by showing
6 that Singh could safely and reasonably relocate. See
7 8 C.F.R. § 1208.13(b)(1)(i)(B), (ii); Surinder Singh, 435
8 F.3d at 219. The agency’s finding was also dispositive of
9 CAT relief because it prevented Singh from establishing the
10 requisite likelihood of torture. See 8 C.F.R.
11 § 1208.16(c)(3); Lecaj v. Holder, 616 F.3d 111, 119–20
12 (2d Cir. 2010) (holding that where record does not
13 demonstrate chance of persecution required for asylum, it
14 “necessarily fails to demonstrate” the likelihood of harm for
15 CAT relief).
16 Humanitarian Asylum
17 Finally, while Singh argues that the BIA erred in finding
18 his humanitarian asylum claim waived because he demonstrated
19 eligibility for that form of relief, he does not dispute that
20 he raised that issue for the first time in his brief to the
21 BIA. The BIA therefore was not required to consider this
22 unexhausted claim, and we cannot consider it now. See 8
8
1 C.F.R. § 1003.1(d)(3)(iv) (version in effect until Jan. 15,
2 2021) (“[T]he [BIA] will not engage in factfinding during the
3 course of deciding an appeal. A party asserting that the
4 [BIA] cannot properly resolve an appeal without further
5 factfinding must file a motion for remand.”); Prabhudial v.
6 Holder, 780 F.3d 553, 555 (2d Cir. 2015) (holding that “where
7 the agency properly applies its own waiver rule and refuses
8 to consider the merits of an argument that was not raised
9 before the IJ, we will not permit an end run around those
10 discretionary agency procedures by addressing the argument
11 for the first time in a petition for judicial review”
12 (alterations omitted)); Lin Zhong v. U.S. Dep’t of Just., 480
13 F.3d 104, 122 (2d Cir. 2007) (“[W]e may consider only those
14 issues that formed the basis for [the BIA’s] decision.”).
15 For the foregoing reasons, the petition for review is
16 DENIED. All pending motions and applications are DENIED and
17 stays VACATED.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe,
20 Clerk of Court
9