Grewal v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 23, 2024
• Docket: 23-21
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 23 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HARJOT SINGH GREWAL, No. 23-21 Agency No. Petitioner, A059-505-773 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 16, 2024** Pasadena, California

Before: BOGGS,*** NGUYEN, and LEE, Circuit Judges.

Harjot Singh Grewal, a native and citizen of India, seeks review of the Board

of Immigration Appeals’ (BIA) decision denying his application for protection under

* 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 Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. the Convention Against Torture (CAT). When the BIA adopts and affirms the

Immigration Judge’s decision under Matter of Burbano, this court reviews both

decisions. Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022). We have

jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

1. Substantial evidence supports the agency’s conclusion that Grewal is

ineligible for CAT protection. To be eligible for CAT protection, Grewal “bears the

burden of establishing that [he] will more likely than not be tortured with the consent

or acquiescence of a public official if removed to [his] native country.” Xochihua-

Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020) (citing Avendano-Hernandez v.

Lynch, 800 F.3d 1072, 1078–79 (9th Cir. 2015)); 8 C.F.R. §§ 1208.16(c)(2),

1208.18(a)(1).

Grewal argues that he is eligible for CAT protection because he is a Sikh

supporter of Khalistan, an independent Sikh homeland—which is disfavored in his

home state of Punjab—and because he has a tattoo on his forearm displaying his

support for Khalistan. He notes that eight years ago he was assaulted in the streets

of Punjab for this belief.

The record does not compel the conclusion that it is more likely than not that

Grewal will be tortured with acquiescence of the government. The IJ properly

concluded that Grewal’s past beating does not constitute torture. See Kumar v.

Gonzales, 444 F.3d 1043, 1047–49, 1055–56 (9th Cir 2006) (finding that a multi-

2 day beating and interrogation by police did not constitute torture). And Grewal’s

tattoo does not make it more likely than not that he will be tortured upon his return

to India, given that there is no evidence that Khalistan advocates are regularly

tortured.

Additionally, substantial evidence supports the IJ’s conclusion that there is no

evidence “that a public official or other person acting in an official capacity . . .

consented or acquiesced in [Grewal’s past beating].” To rebut the IJ’s finding,

Grewal relies on (i) country-conditions evidence and (ii) his own testimony stating

that he did not report this beating to the police because “India’s corrupted and most

the government is just Hindus.” But this generalized evidence does not compel the

conclusion that Grewal’s attackers were acting with the acquiescence of a public

official. Cf. Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1185 (9th Cir. 2020) (finding

that the “extensive country conditions evidence indicating the prevalence of

acquiescence by [Mexican] officials in the torture committed by Los Zetas

generally” helped to establish the acquiescence of public officials in a past instance

of torture). The country-conditions evidence here does not compel the conclusion

that his attackers were acting with the acquiescence of the government. Rather,

substantial evidence supports the IJ’s finding that Sikhs in India have generally been

able to live peacefully, even though Khalistan advocates may “draw attention.” See

e.g., Zheng v. Ashcroft, 332 F.3d 1186, 1194 (9th Cir. 2003) (“Acquiescence of a

3 public official requires that the public official, prior to the activity constituting

torture, have awareness of such activity and thereafter breach his or her legal

responsibility to intervene to prevent such activity.” (emphasis in original) (quoting

8 C.F.R. § 2018.18(a)(7))); Lalayan v. Garland, 4 F.4th 822, 840 (9th Cir. 2021)

(Petitioner “must demonstrate that he would be subject to a particularized threat of

torture.…”) (emphasis in original).

2. The IJ and the Board properly considered the evidence in the record. The

agency must “give ‘reasoned consideration’ to all ‘potentially dispositive testimony

and documentary evidence.’” Gonzalez-Castillo v. Garland, 47 F.4th 971, 981 (9th

Cir. 2022) (quoting Cole v. Holder, 659 F.3d 762, 772 (9th Cir. 2011)). Here, the

agency clearly discussed the country-conditions evidence, both that regarding Sikhs

generally and advocates of Khalistan specifically. The IJ did not misstate the record

or fail to mention any highly probative or potentially dispositive evidence. Cf.

Gonzalez-Castillo, 47 F.4th at 982.

PETITION DENIED.