Singh v. Bondi

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 18 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GURJEET SINGH; NARENDRA No. 24-2995 KAUR; NAVREET KAUR, Agency Nos. A220-721-705 Petitioners, A220-940-686 A220-940-687 v.

PAMELA BONDI, Attorney General, MEMORANDUM*

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted March 7, 2025** San Francisco, California

Before: WARDLAW, PAEZ, and BEA, Circuit Judges.

Gurjeet Singh (“Singh”), Narendra Kaur, and their minor child (collectively,

“Petitioners”), all natives and citizens of India, petition for review of the decision

of the Board of Immigration Appeals (“BIA”) denying their application for

* 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). protection under the Convention Against Torture (“CAT”). Petitioners’ CAT

claim was initially denied by an Immigration Judge (“IJ”) along with their

applications for asylum and withholding from removal. On appeal, the BIA

affirmed only the denials of asylum and withholding and remanded the CAT claim

to the IJ for further consideration, after concluding that the IJ failed to address all

relevant evidence in the record regarding future torture. Upon consideration of the

evidence on remand, the IJ again denied CAT relief and the BIA adopted the IJ’s

decision. We have jurisdiction under 8 U.S.C. § 1252(a) and deny the petition for

review.

The BIA adopted and affirmed the IJ’s denial of CAT relief citing Matter of

Burbano, 20 I. & N. Dec. 872, 874 (1994). “[W]here the BIA cites its decision in

Burbano and does not express disagreement with any part of the IJ’s decision, the

BIA adopts the IJ’s decision in its entirety.” Abebe v. Gonzales, 432 F.3d 1037,

1040 (9th Cir. 2005) (en banc). We also review any “additional reasoning offered

by the BIA.” Husyev v. Mukasey, 528 F.3d 1172, 1177 (9th Cir. 2008).

1. Substantial evidence supports the BIA’s finding that Singh did not

suffer past torture. On remand, the IJ found that, based on the BIA’s conclusion

that Singh’s two prior beatings did not constitute harm rising to the level of

persecution for asylum or withholding, Singh also failed to show past torture

through the same facts. While CAT and asylum require separate inquiries, “torture

2 24-2995 is more severe than persecution and the standard of proof for the CAT claim is

higher than the standard of proof for an asylum claim.” Nuru v. Gonzales, 404

F.3d 1207, 1224 (9th Cir. 2005). Thus, in upholding the IJ’s determination, the

BIA did not err in finding that the prior attacks on Singh did not meet the higher

standard for torture under CAT.

2. Substantial evidence supports the BIA’s conclusion that Petitioners

did not show a particularized fear of future torture after consideration of all

evidence on remand. “CAT’s implementing regulations explicitly require the

agency to consider ‘all evidence relevant to the possibility of future torture.’”

Parada v. Sessions, 902 F.3d 901, 914-15 (9th Cir. 2018) (cleaned up). The BIA

concluded that the IJ had “properly considered” all evidence relevant to CAT on

remand, including the previously omitted written statement by Singh detailing the

police’s threats of false arrest.

For CAT, the regulations require a “specific intent to inflict severe harm,”

and therefore “[a]cts that merely have the foreseeable result of inflicting harm are

not sufficient.” Cole v. Holder, 659 F.3d 762, 773 (9th Cir. 2011) (citing 8 C.F.R.

§ 1208.18(a)(5)). The BIA adopted the IJ’s finding that the vague nature of the

threat of false arrest and the uncertainty that physical harm would accompany any

such arrest did not establish foreseeable torture. Further, the agency properly

considered testimonial and country conditions evidence in finding that Petitioners

3 24-2995 did not establish a likelihood of future torture. See Parada, 902 F.3d at 915. The

IJ found that the documented incidents of harm in Petitioners’ supporting articles

constituted “generalized evidence of violence and crime,” which is insufficient to

establish a likelihood that Petitioners would be tortured anywhere in India. See

Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010). Substantial

evidence therefore supported the BIA’s finding that record evidence did not

compel the conclusion that Petitioners had a particularized risk of future torture.

3. To the extent that Petitioners challenge the BIA’s prior decision

denying asylum and withholding of removal, those arguments are waived.

Petitioners solely appealed the IJ’s denial of CAT on remand to the BIA and is

therefore the only issue before this court. See Castro-Perez v. Gonzales, 409 F.3d

1069, 1072 (9th Cir. 2005).

4. The BIA’s suggestion that Petitioners’ challenge to the IJ’s finding of

reasonable relocation for CAT was “foreclosed” by the BIA’s prior decision

denying asylum and withholding misstates the law. “Among its assessment of ‘all

evidence relevant to the possibility of future torture,’ the IJ must consider

‘evidence that the applicant could relocate to a part of the country of removal

where he or she is not likely to be tortured.’” Xochihua-Jaimes v. Barr, 962 F.3d

1175, 1186 (9th Cir. 2020) (quoting 8 C.F.R. § 1208.16(c)(3)(ii)). While the IJ

addressed the relocation inquiry with respect to its original decision denying

4 24-2995 asylum and withholding, it did not do so for CAT. See Tzompantzi-Salazar v.

Garland, 32 F.4th 696, 705 (9th Cir. 2022). On remand, the IJ considered

evidence relevant to the possibility of future torture that had not yet been

addressed, which in turn requires reassessment of the possibility of relocation.

Accordingly, Petitioners’ challenge to the IJ’s review of relocation with respect to

CAT was not foreclosed. However, the BIA’s denial of CAT is supported by

substantial evidence, so the BIA’s suggestion that a challenge to the relocation

finding was foreclosed constitutes harmless error. See Zamorano v. Garland, 2

F.4th 1213, 1227-28 (9th Cir. 2021).

PETITION DENIED.1

1 Petitioners’ motion to stay removal, Dkt. 3, is denied. The temporary stay of removal is vacated upon issuance of the mandate.

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