Gurmeet Sran v. Attorney General United States of America

• Court: Court of Appeals for the Third Circuit
• Decided: August 24, 2023
• Docket: 22-1685
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-1685 ___________

GURMEET SINGH SRAN, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

_______________________

On Petition for Review of and Decision of the Board of Immigration Appeals BIA No. A208-617-849 (Immigration Judge: David Cheng) ______________

Submitted Pursuant to Third Circuit LAR 34.1(a) April 12, 2023

Before: CHAGARES, Chief Judge, SCIRICA, and AMBRO, Circuit Judges.

(Filed: August 24, 2023) ________________

OPINION* ________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SCIRICA, Circuit Judge

Gurmeet Singh Sran, a native and citizen of India, seeks review of the Board of

Immigration Appeals’ dismissal of his applications for asylum, withholding of removal,

and relief under the Convention Against Torture. Sran asserts he was persecuted for his

membership in the Mann Party by members of the Badal Party while living in Punjab.1 For

the reasons discussed below, we will affirm the Board of Immigration Appeals.

I.

Sran was once a member of the Badal Party. He joined the Mann Party in hopes of

fighting for the poor, Sikh rights, and the eradication of the caste system. Sran would go to

rallies and do what Mann Party leadership asked of him, but he did not hold a specific title

or position in the party. Before the Immigration Judge (IJ), Sran testified that members of

the Badal Party tried to coerce him into rejoining their party on three occasions: a phone

call from a Badal Party member who told him to switch his affiliation from the Mann Party

to the Badal Party; a physical attack by Badal Party members; and a second physical attack

by Badal Party members, which left him with injuries requiring medical treatment.

Sran received the phone call a month after joining the Mann Party. He was first

attacked three months later as he walked home alone one evening. Seven masked people

surrounded Sran, identified themselves as Badal Party members, and slapped him around.

They told Sran that they had seen him participate in Mann Party events and castigated him

1 The Mann Party is sometimes referred to as Shiromani Akali Dal Amritsar. It broke away from the Badal Party, which is also referred to as Shiromani Akali Dal.

2 for ignoring the phone call. They threatened to come back and “really warn” Sran if he

again refused to join the Badal Party. Then they left.

Sran was attacked again four months later. As before, seven people identifying

themselves as Badal Party members surrounded Sran as he was walking home alone and

told him to join the Badal Party. This time, however, they also kicked him and beat him

with hockey sticks for about ten minutes. They ran back to their car when a bus stopped

nearby.

Someone living in Sran’s village saw the attack and told Sran’s father, who took

Sran to a nearby doctor’s office. The doctor diagnosed Sran with internal injuries—

swelling in his abdomen, but no broken ribs—and treated him for about two hours. Sran

saw the doctor periodically over the next two weeks.

Sran and his father attempted to file a report after each attack but were told on both

occasions that the police could not act against the Badal Party. Even though their

Sarpanch—village leader—came with them after the second attack, the police still refused

to act and threatened to charge them with making a false complaint if they tried to file

another report.

Sran left his home to go into hiding with relatives. He fled to the United States in

April 2016. After he left, his family told him that Badal Party members occasionally

returned to the village to look for him.

The IJ denied Sran’s applications for relief and protection. The IJ found that Sran

had no real explanation for discrepancies between his testimony, his written statement, and

his parents’ affidavits, and so was not credible. Even if Sran were credible, the IJ

3 concluded, he failed to demonstrate that the call and attacks qualified as persecution. The

IJ also determined that Sran had not shown that his fear of future persecution was well-

founded because he did not explain why Badal Party members would go to such lengths to

target someone who held no position of significance in the Mann Party. Because Sran did

not meet the burden of proof for his asylum claim, the IJ determined that he necessarily

failed to meet the higher burden of proof for his withholding of removal claim. Finally, the

IJ found that Sran had not met the burden of proof for his Convention Against Torture

(CAT) claim because the call and attacks did not qualify as torture and the record did not

illustrate that the Indian government would consent or acquiesce to Sran’s torture if he

returned to India.

Sran timely appealed the IJ’s decision. His brief only challenged the IJ’s adverse-

credibility finding, though his notice of appeal referenced persecution and the CAT. The

Board of Immigration Appeals (BIA) held that Sran did not “meaningfully challenge” the

IJ’s conclusion that Sran failed to demonstrate “persecution on account of a protected

ground.” AR 3. Accordingly, the BIA deemed his other asylum, withholding of removal,

and CAT arguments forfeited and dismissed the appeal. Sran then timely petitioned for

review.

4 II.2

A.

Asylum applicants must show that they are a “refugee” under § 101(a)(42)(A) of

the Immigration and Nationality Act. More specifically, applicants must demonstrate that

they have suffered, or fear suffering, persecution based on a statutorily protected ground—

“race, religion, nationality, membership in a particular social group, or political opinion.”

8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1). Persecution is generally understood to encompass

only severe harms, such as “threats to life, confinement, torture, and economic restrictions

so severe that they constitute a threat to life or freedom.” Fatin v. INS, 12 F.3d 1233, 1243

2 We have jurisdiction over a final order of removal under 8 U.S.C. § 1252(a)(1). We review both the IJ’s and the BIA’s decisions when the BIA “affirms and partially reiterates the IJ’s discussions and determinations.” Myrie v. AG, 855 F.3d 509, 515 (3d Cir. 2017). Our review is limited to determining whether the denial of relief and protection is supported by substantial evidence. Jarbough v. AG, 483 F.3d 184, 191 (3d Cir. 2007). “[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude the contrary.” 8 U.S.C. § 1252(b)(4)(B). Our review of legal questions is plenary. Blanco v. AG, 967 F.3d 304, 310 (3d Cir. 2020).

The Government filed a motion to dismiss Sran’s petition on the ground that Sran failed to exhaust all of his claims. We denied the motion without determining which of Sran’s claims were exhausted and which were not. In Santos-Zacaria v. Garland, 143 S. Ct. 1103 (2023), the Supreme Court held that the exhaustion requirement in § 1252(d)(1) is not jurisdictional. This changes the law in the Third Circuit. We have followed a lenient policy for determining exhaustion but nevertheless treated § 1251(d)(1) as jurisdictional. See Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005) (“[S]o long as an immigration petitioner makes some effort, however insufficient, to place the Board on notice of a straightforward issue being raised on appeal, a petitioner is deemed to have exhausted [his] administrative remedies.”); Popal v. Gonzales, 416 F.3d 249, 252 (3d Cir. 2005) (treating exhaustion requirement as jurisdictional). Accordingly, we have jurisdiction over all of Sran’s claims. If a petitioner has an unexhausted claim, we consider whether that claim is forfeited.

5 (3d Cir. 1993). Persecution must be at the hands of the government or forces the

government is unable or unwilling to control. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.

2002). Unfair, unjust, unlawful, or unconstitutional conduct, without more, may not qualify

as persecution. Ahmed v. Ashcroft, 341 F.3d 214, 218 (3d Cir. 2003).

There is no requirement that harm is only physical. See Chavarria v. Gonzalez, 446

F.3d 508, 520 (3d Cir. 2006). An unfulfilled threat may constitute persecution so long as it

“poses a severe affront to the petitioner’s life or freedom.” Herrera-Reyes v. AG, 952 F.3d

101, 108 (3d Cir. 2020) (cleaned up); see also Blanco v. AG, 967 F.3d 304, 312 (3d Cir.

2020) (clarifying that the standard is “concrete and menacing,” not “imminent, concrete,

and menacing”).

In general, a brief attack that does not result in lasting physical injury does not

qualify as persecution. See, e.g., Kibinda v. AG, 477 F.3d 113, 119–20 (3d Cir. 2007)

(finding no persecution where petitioner was struck in the jaw during a five-day detention,

requiring stitches that left a scar); Singh v. United States, No. 22-2424, 2023 WL 2906170

(3d Cir. Apr. 12, 2023) (finding no past persecution where petitioner, a member of the

Mann Party, received a death threat over the phone from a Badal Party member and then

received minor injuries in two attacks, both under two minutes, by Badal Party members a

few months apart); cf. Blanco v. AG, 967 F.3d 304, 315 (3d Cir. 2020) (finding persecution

where petitioner suffered no serious injuries after being beaten for hours because petitioner

also received “concrete and menacing” death threats). That noted, we consider events

cumulatively—“a series of incidents of physical or economic mistreatment could, taken

together, be sufficiently abusive to amount to persecution.” Fei Mei Cheng v. AG, 623 F.3d

6 175, 193 (3d Cir. 2010) (discussing escalating verbal threats and seizure of petitioner’s

family farm).

If an applicant cannot demonstrate past persecution, he must demonstrate a genuine

well-founded fear of future persecution. Espinosa-Cortez v. AG, 607 F.3d 101, 108 (3d Cir.

2010). A fear of future persecution is considered objectively reasonable if a petitioner

establishes that he will be individually targeted or subjected to a pattern or practice of

persecution based on a statutorily protected ground. 8 C.F.R. § 1208.13(b)(2)(iii); Doe v.

AG, 956 F.3d 135, 151 (3d Cir. 2020).

The standard of proof for withholding of removal is higher than the standard for

asylum—it requires that a petitioner show future persecution is “more likely than not.”

Valdiviezo-Galdamez v. AG, 663 F.3d 582, 591 (3d Cir. 2011). Accordingly, an applicant

cannot succeed on his withholding-of-removal claim without meeting the burden of proof

for his asylum claim.

To succeed on a CAT claim, a petitioner must show “that it is more likely than not

that he or she would be tortured if removed [to another State].” 8 C.F.R. § 1208.16(c)(2).

Torture is “(1) an act causing severe physical or mental pain or suffering; (2) intentionally

inflicted; (3) for an illicit or proscribed purpose; (4) by or at the instigation of or with the

consent or acquiescence of a public official who has custody or physical control of the

victim; and (5) not arising from lawful sanctions.” Auguste v. Ridge, 395 F.3d 123, 151 (3d

Cir. 2005) (citing Matter of J.E., 23 I.&N. Dec. 291, 297 (BIA 2002)); see also Myrie v.

AG, 855 F.3d 509, 515 (3d Cir. 2017). A petitioner may establish consent or

acquiescence—even if the government formally opposes the entity allegedly targeting the

7 petitioner—by providing “sufficient evidence that the government is willfully blind to such

activities.” Myrie, 855 F.3d at 516 (citing Silva-Rengift v. AG, 473 F.3d 58, 65 (3d Cir.

2007)).

B.

Sran presents his asylum, withholding of removal, and CAT claims to us as if they

were exhausted. Even if we treat all of Sran’s claims as exhausted, we must deny his

petition for review. Substantial evidence supports the BIA’s and IJ’s conclusions. Under

our caselaw, persecution is a high bar—one which the threats and beatings Sran endured

do not clear.3 And because neither Sran’s testimony nor the rest of the record sheds much

light on the likelihood of further attacks, Sran cannot establish a well-founded fear of future

persecution. Because Sran is not able to carry his burden of proof for his asylum claim, he

is unable to meet the higher standard for withholding of removal. Similarly, the record does

not establish that Sran was subjected to torture or is at risk of being subjected to torture if

he returns to India.

Substantial evidence supports the denial of Sran’s asylum claim. Neither the phone

call nor either attack constitutes persecution when considered independently. The Badal

Party member who called Sran did not make an overt threat against Sran or his family. A

vague or implied threat must be accompanied by other evidence in the record. See

3 The Supreme Court’s recent decision in Santos-Zacaria may change our exhaustion analysis now that we may exercise jurisdiction over unexhausted claims. Because of this change, and the fact that this case does not turn on exhaustion, we do not decide whether Sran’s passing mention of claims in his notice of appeal means he exhausted those claims.

8 Chavarria, 446 F.3d at 519–20 (finding death threat to petitioner during robbery “concrete

and menacing” because the record demonstrated that the robbers sought out petitioner

because he had thwarted an attack on members of a political group the robbers opposed);

Blanco, 967 F.3d at 313 (finding death threats “concrete and menacing” because petitioner

was targeted after attending a political march and other attendees had been killed, including

some who had received similar threats). The record before us lacks such evidence. It is

unclear if any other Mann Party members were subjected to serious attacks or killed, or

whether Sran was targeted because he used to be a member of the Badal Party.

As noted above, a solitary beating that does not result in serious injury does not

generally constitute persecution. Chen v. Ashcroft, 381 F.3d 221, 234–35 (3d Cir. 2004).

Sran was not injured in the first attack, and he suffered no broken bones or other lasting

physical harm from the second attack.

As neither the phone call nor either attack constitutes persecution when considered

independently, we look to see whether the two attacks and the phone call cumulatively

qualify as persecution. See Fei Mei Cheng, 623 F.3d at 193. During the first attack, at least

one Badal Party member told Sran that the phone call and attack were warnings, and that

he could expect worse if he did not join the Badal Party. Sran was then attacked more

severely. This seems to indicate that he was subjected to “escalating and consummated

threats.” Id. at 193 (citing Gomez-Zuluaga v. AG, 527 F.3d 330, 343 (3d Cir. 2008)).

When we have held that threats coupled with beatings that did not leave the

petitioner with lasting physical injury can constitute past persecution, we have done so on

a more robust record. Blanco, 967 F.3d at 317–18. In Blanco, Honduran police officers

9 abducted the petitioner at a political march and held him at an abandoned house for

approximately twelve hours. Id. at 308. The officers beat him repeatedly in forty- to sixty-

minute sessions, called him racial slurs, and threatened to kill him and his family if he

participated in future marches. Id. The petitioner went to the hospital after the officers

dropped him off in an abandoned lot. Id. He was evaluated and sent home with an over-

the-counter painkiller because he had no bruises, cuts, or broken bones. Id. The petitioner

moved around Honduras for the next year in an attempt to evade the police, but he received

letters and a phone call threatening him and his family with death if he did not leave the

country. Id. The petitioner learned that other march attendees had received threatening

letters and some had been killed. Id.

Sran’s beatings were far shorter than those in Blanco—the second was ten

minutes—and the threats Sran received were vague. Although Badal Party members looked

for Sran in his home village, Sran did not receive threats when he went to stay with

relatives. And as noted above, the record does not include evidence of other attacks on

either Sran or other Mann Party members. Accordingly, we find that the phone call and

attacks, taken together, do not rise to the level of persecution.

Because Sran has not established past persecution, we consider whether he

nevertheless has a well-founded fear of future persecution. The IJ, finding that Sran was

not a credible witness, concluded that his fear was not genuine. While we would dispute

the IJ’s adverse-credibility determination, it is not dispositive. There is substantial evidence

to support the IJ’s alternative conclusion that Sran presented insufficient evidence that he

would face torture if removed to India. Sran does not explain why the Badal Party, which

10 is not a national party, would be able to find him anywhere in India and would expend the

resources necessary to do so. Neither does Sran mention whether other general members

of the Mann Party have been persecuted or whether he expects the Badal Party to continue

carrying out attacks regardless of changes in Punjab’s political climate.4 We do not expect

Sran to have access to detailed information about the Badal Party’s motives or plans. But

without any explanations or evidence, there is no way to determine whether his fear of

future persecution is well-founded.

As there is substantial evidence to support the denial of Sran’s asylum claim, we

must conclude that there is likewise substantial evidence to support the denial of his

withholding of removal claim. Without establishing a well-founded fear of future

persecution, Sran cannot demonstrate that it is more likely than not that he will experience

persecution if removed to India.

We also conclude that there is substantial evidence to support the denial of Sran’s

CAT claim. The police response to Sran’s beatings could indicate consent or acquiescence

to the Badal Party’s actions. But torture, like persecution, only encompasses severe harm

and suffering. See Auguste, 395 F.3d at 151; Fatin, 12 F.3d at 1243. Because the phone

4 The Mann Party’s political fortunes may have shifted since Sran left India. Mann Party president Simranjit Singh Mann won a seat in Lok Sabha, the lower house of India’s parliament, in June 2022. He last won a seat in 1999. The Badal Party candidate was not a frontrunner in the June 2022 election. See Neel Kamal, Sangrur Lok Sabha Byelection Results: SAD (Amritsar) President Simranjit Singh Mann Defeats AAP’s Gurmail Singh, TIMES OF INDIA (Jun. 26, 2022, 2:55 PM IST), https://timesofindia.indiatimes.com/city/ludhiana/sangrur-lok-sabha-byelection-results- sad-amritsar-president-simranjit-singh-mann-defeats-aaps-gurmail- singh/articleshow/92470642.cms.

11 call and two attacks do not constitute severe harm under our caselaw, they do not qualify

as torture, and Sran’s CAT claim cannot succeed.

III.

For the reasons stated above, we will DENY the petition for review. 5

5 Because we find that Sran has not carried his burden of proof as to his asylum and withholding-of-removal claims, we do not reach his arguments regarding the “nexus” and “unwilling or unable” aspects of the asylum analysis.