Singh v. Garland

Opinion

Appellate Case: 23-9548 Document: 010111084167 Date Filed: 07/24/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 24, 2024 _________________________________ Christopher M. Wolpert Clerk of Court IQBAL SINGH,

Petitioner,

v. No. 23-9548 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BACHARACH, EID, and FEDERICO, Circuit Judges. _________________________________

Iqbal Singh, a native and citizen of India, petitions for review of a decision by

the Board of Immigration Appeals (Board or BIA) affirming the denial of his

applications for asylum, withholding of removal, and relief under the Convention

Against Torture (CAT). Exercising jurisdiction under 8 U.S.C. § 1252, we deny the

petition.

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-9548 Document: 010111084167 Date Filed: 07/24/2024 Page: 2

BACKGROUND

I. Underlying Facts

Mr. Singh is a Sikh from Punjab, India. He is a worker for the Congress party,

which is opposed by the Shiromani Akali Dal Badal party (the Badal party) and the

Bharatiya Janata Party (BJP).

Mr. Singh testified that on May 10, 2016, he was hanging posters for the

Congress party when five Badal party members initiated a confrontation. Tearing

down the posters, they cursed and verbally abused him. When he protested, they

began beating him with fists, sticks, and baseball bats, telling him to join the Badal

party. After about ten to fifteen minutes, the attackers ran away when passersby

gathered. Mr. Singh had bruises and went to a hospital, where he got “shots as well

as some medicine.” R. Vol. 1 at 79. He went to report the attack at a police station,

but the officers declined to help him, saying they were unwilling to put their jobs at

risk by writing something against the Badal party.

A few months later, on August 13, 2016, Mr. Singh was driving home on his

motorcycle. A vehicle stopped behind him, and then it ran into him and knocked him

off. Badal party members beat him with fists and bats for about ten to fifteen

minutes. A passerby took him home, and his mother took him to the hospital, where

he got medicine. In light of his earlier experience, he did not try to report the second

attack to the police.

The next month, Badal party and BJP members threatened Mr. Singh on the

street, saying they were not going to leave him alone and were going to beat him or

2 Appellate Case: 23-9548 Document: 010111084167 Date Filed: 07/24/2024 Page: 3

shoot him. He left India in October 2016 with the assistance of a paid agent. He

entered the United States without valid entry documents and without authorization in

November 2016.

After Mr. Singh left India, in 2017 and 2019 Badal party members went to the

house where his family lives and inquired about him. During the 2017 visit, they told

his mother to vote for the Badal party in an upcoming election. During the 2019

visit, they slapped his mother and verbally abused his wife.

II. Legal Standards

For asylum, a petitioner must establish he is a refugee. See 8 U.S.C.

§ 1158(b)(1)(A). A refugee is a person who is “unable or unwilling to return to the

country of origin ‘because of persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular social group, or

political opinion.’” Rivera-Barrientos v. Holder, 666 F.3d 641, 645-46 (10th Cir.

2012) (quoting 8 U.S.C. § 1101(a)(42)(A)) (emphasis omitted). “Persecution is the

infliction of suffering or harm upon those who differ (in race, religion, or political

opinion) in a way regarded as offensive and must entail more than just restrictions or

threats to life and liberty.” Ritonga v. Holder, 633 F.3d 971, 975 (10th Cir. 2011)

(internal quotation marks omitted). “[P]ersecution may be inflicted by the

government itself, or by a non-governmental group that the government is unwilling

or unable to control.” Id. (internal quotation marks omitted). Where a petitioner

seeks asylum based on fear of future persecution, he must show his fear is “both

subjectively genuine and objectively reasonable.” Tulengkey v. Gonzales, 425 F.3d

3 Appellate Case: 23-9548 Document: 010111084167 Date Filed: 07/24/2024 Page: 4

1277, 1281 (10th Cir. 2005). A petitioner does not have a well-founded fear of future

persecution if he could avoid persecution by reasonably relocating within his country.

See id.

The standard for withholding of removal is “more stringent” than that for

asylum. Zhi Wei Pang v. Holder, 665 F.3d 1226, 1233 (10th Cir. 2012). “To be

eligible for withholding of removal, an applicant must demonstrate that there is a

clear probability of persecution because of his race, religion, nationality, membership

in a particular social group, or political opinion.” Id. (internal quotation marks

omitted).

Finally, “[t]o be entitled to any type of CAT relief, an applicant must

‘establish that it is more likely than not that he or she would be tortured if removed to

the proposed country of removal.’” Igiebor v. Barr, 981 F.3d 1123, 1128 (10th Cir.

2020) (quoting 8 C.F.R. § 1208.16(c)(2)). “Torture is defined as any act by which

severe pain or suffering, whether physical or mental, is intentionally inflicted on a

person.” 8 C.F.R. § 1208.18(a)(1). It “is an extreme form of cruel and inhuman

treatment and does not include lesser forms of cruel, inhuman or degrading treatment

or punishment that do not amount to torture.” Id. § 1208.18(a)(2). In assessing the

likelihood of torture, a fact-finder must consider all relevant evidence, including

“[e]vidence of past torture inflicted upon the applicant.” Id. § 1208.16(c)(3)(i).

III. Agency Proceedings

Mr. Singh’s Notice to Appear (NTA) alleged he entered the United States

without a valid entry document and without being admitted or paroled after

4 Appellate Case: 23-9548 Document: 010111084167 Date Filed: 07/24/2024 Page: 5

inspection by an immigration officer. It charged him with being an immigrant who

was not in possession of a valid entry document. Mr. Singh admitted the factual

allegations in the NTA and conceded removability. He applied for asylum,

withholding of removal, and relief under the CAT.

The immigration judge (IJ) found Mr. Singh’s testimony to be credible.

Although he recognized that Badal party members had twice attacked Mr. Singh and

had threatened to shoot him, the IJ concluded that the circumstances did not rise to

the level of past persecution. He further found that Mr. Singh had not established a

well-founded fear of future persecution and that, even if he had, he could reasonably

relocate to other areas of Punjab or other areas of India. Because Mr. Singh failed to

demonstrate his eligibility for asylum, the IJ held that he necessarily failed to meet

the standards for withholding of removal. Finally, as to the CAT, the IJ held that

Mr. Singh failed to establish it is more likely than not that he would be tortured if he

returned to India.

The Board adopted and affirmed the IJ’s decision but also wrote separately to

address specific arguments made on appeal. The Board rejected Mr. Singh’s claim

that the IJ minimized and failed to consider all the harm he suffered in India. It

upheld the IJ’s determination, under the law of this circuit, that the circumstances did

not establish past persecution or a well-founded fear of future persecution. It also

upheld the determination that Mr. Singh had failed to show he could not reasonably

relocate. And it upheld the denial of CAT relief, rejecting Mr. Singh’s assertions that

5 Appellate Case: 23-9548 Document: 010111084167 Date Filed: 07/24/2024 Page: 6

the past harm he experienced qualified as torture and that he was more likely than not

to face torture upon his return to India.

Mr. Singh filed a timely petition for review.

DISCUSSION

I. Standards of Review

“Where, as here, the BIA affirms an immigration judge’s decision in a single

Board member’s brief order, the BIA’s affirmance is the final agency decision, and

we limit our review to the grounds for the BIA’s decision.” Escobar-Hernandez v.

Barr, 940 F.3d 1358, 1360 (10th Cir. 2019). “However, we may consult the

immigration judge’s fuller explanation of those same grounds.” Id.

We review legal questions de novo and findings of fact for substantial

evidence. See id. at 1360-61 (asylum and withholding); Arostegui-Maldonado v.

Garland, 75 F.4th 1132, 1144 (10th Cir. 2023) (CAT claims). Under the

substantial-evidence standard, “[t]he agency’s ‘findings of fact are conclusive unless

any reasonable adjudicator would be compelled to conclude to the contrary.’”

Nasrallah v. Barr, 590 U.S. 573, 584 (2020) (quoting 8 U.S.C. § 1252(b)(4)(B)).

II. Asylum

A. Past Persecution

Mr. Singh argues the Board erred in determining the attacks on him did not

rise to the level of past persecution. In this circuit, persecution is a finding of fact

that is reviewed only for substantial evidence. See Ting Xue v. Lynch, 846 F.3d 1099,

1104 (10th Cir. 2016). Accordingly, “[t]he BIA’s determination that the applicant is

6 Appellate Case: 23-9548 Document: 010111084167 Date Filed: 07/24/2024 Page: 7

not eligible for asylum must be upheld if supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” Yuk v. Ashcroft, 355 F.3d

1222, 1233 (10th Cir. 2004) (brackets and internal quotation marks omitted). “It can

be reversed only if the evidence presented by the applicant was such that a reasonable

factfinder would have to conclude that the requisite fear of persecution existed.” Id.

(brackets and internal quotation marks omitted).

Mr. Singh largely relies on out-of-circuit precedent to argue that the

circumstances here rise to the level of persecution. But under this circuit’s

precedent, we cannot conclude that any reasonable adjudicator would be compelled

to find past persecution. See Ting Xue, 846 F.3d at 1107 (four-day detention

including assault did not constitute persecution); Ritonga, 633 F.3d at 976 (assault

during home invasion and attack on car did not constitute persecution); Witjaksono v.

Holder, 573 F.3d 968, 972, 977 (10th Cir. 2009) (taunts, throwing rocks, attack on

car, and assault did not constitute persecution); Sidabutar v. Gonzales, 503 F.3d

1116, 1124 (10th Cir. 2007) (multiple beatings resulting in injuries and demands for

money did not constitute persecution), abrogated on other grounds by

Santos-Zacaria v. Garland, 598 U.S. 411 (2023); Tulengkey, 425 F.3d at 1280-81

(robbery resulting in injury and attack on wedding did not constitute persecution);

Kapcia v. INS, 944 F.2d 702, 704, 708 (10th Cir. 1991) (detentions including

beatings and interrogation did not constitute persecution). Mr. Singh asserts that the

Board failed to consider all the harm he suffered, minimized the harm, and failed to

consider the threats and violent acts cumulatively. But the agency explicitly

7 Appellate Case: 23-9548 Document: 010111084167 Date Filed: 07/24/2024 Page: 8

recognized the attacks and the threats. Mr. Singh effectively asks us to reweigh the

evidence, which we cannot do. See Yuk, 355 F.3d at 1233.1

Mr. Singh also asserts that he “suffered some economic harm, indirectly, as he

was forced to leave his job, too, when he fled India.” Pet’r’s Opening Br. at 24. The

government asserts that he did not raise this argument before the Board. Although a

petitioner’s failure to raise an argument before the Board is not jurisdictional,

§ 1252(d)(1)’s exhaustion requirement “is a quintessential claim-processing rule.”

Santos-Zacaria, 598 U.S. at 417. Because Mr. Singh did not raise his argument

before the Board, and the government invokes the rule, we decline to consider the

argument. See Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 1849 (2019) (“A

claim-processing rule may be mandatory in the sense that a court must enforce the

rule if a party properly raises it.” (brackets and internal quotation marks omitted)).

In addition, Mr. Singh asserts the IJ ignored the 2017 and 2019 visits to his

house by Badal party members. The Board stated that “these incidents occurred after

[he] left India and are therefore not considered past harm suffered by [him] for the

purposes of the past persecution analysis.” R. Vol. 1 at 4. Mr. Singh’s bare

proclamation that “[t]he harm or threatened harm suffered by [his] mother and wife

reverberated upon [him], even though he was in the United States at the time,” Pet’r’s

Opening Br. at 28, does not persuade us that the Board reversibly erred in declining

1 Mr. Singh’s opening brief discusses whether he established a nexus between persecution and a protected ground, as required for an asylum (or withholding) claim. It does not appear, however, that the agency needed to reach this issue once it concluded that the harm Mr. Singh described did not rise to the level of persecution. 8 Appellate Case: 23-9548 Document: 010111084167 Date Filed: 07/24/2024 Page: 9

to consider these incidents in considering whether Mr. Singh experienced past

persecution. Notably, as discussed below, the Board did consider the incidents in

assessing whether he established a well-founded fear of future persecution.

For these reasons, Mr. Singh has not shown that any reasonable adjudicator

would be compelled to conclude that he established past persecution.

B. Future Persecution

Mr. Singh further argues the Board erred in failing to find he has a

well-founded fear of future persecution. The Board recognized he had a subjective

fear, but it held that he failed to show the fear also was objectively reasonable. It

held that the 2017 and 2019 Badal party visits to his family did not demonstrate a

reasonable possibility that Mr. Singh would be subjected to harm rising to the level

of persecution. It further noted that, due to a change of government in favor of the

Congress party, Mr. Singh failed to establish the government would be unwilling or

unable to control his alleged persecutors.2 Finally, the Board upheld the IJ’s finding

that he had not met his burden to show he could not reasonably relocate within India.

Like the finding on past persecution, we review the finding regarding future

persecution for substantial evidence. See Escobar-Hernandez, 940 F.3d at 1361.

Mr. Singh relies heavily on the 2017 and 2019 incidents in arguing for a

finding of future persecution. But the Board’s decision is consistent with our

caselaw. Although “unfulfilled threats are . . . properly considered in determining

2 Mr. Singh’s opening brief asserts that the IJ declined to reach this issue. But the Board did reach the issue in its discussion of future persecution. 9 Appellate Case: 23-9548 Document: 010111084167 Date Filed: 07/24/2024 Page: 10

whether a petitioner has a reasonable fear of future persecution,” “only rarely, when

they are so immediate and menacing as to cause significant suffering or harm in

themselves, do threats per se qualify as persecution.” Vatulev v. Ashcroft, 354 F.3d

1207, 1210 (10th Cir. 2003). The record does not compel any reasonable adjudicator

to find that the threats here met that standard. See Zhi Wei Pang, 665 F.3d at 1231

(recognizing that “[m]ere denigration, harassment, and threats are insufficient” to

establish persecution (internal quotation marks omitted)); Ritonga, 633 F.3d at 975

(recognizing that “[p]ersecution . . . must entail more than just restrictions or threats

to life and liberty”).

Mr. Singh also highlights evidence in his favor to argue the Board erred in

finding he failed to show he could not reasonably relocate. But even though the

record contains evidence supporting his position, that does not mean that the Board’s

determination is unsupported by substantial evidence. To the contrary, the record

contains substantial evidence supporting the Board’s finding. Again, much of

Mr. Singh’s argument amounts to a request to reweigh the evidence. To the extent

that Mr. Singh relies on new developments in India, our review is limited to “the

administrative record on which the order of removal is based.” 8 U.S.C.

§ 1252(b)(4)(A). And to the extent he relies on Ninth Circuit cases regarding the

likelihood of persecution of Mann party members in India, such decisions are

unpersuasive. Mr. Singh is not a member of the Mann party, and as he admitted to

the IJ, the Congress party does not support the Khalistan secession movement, which

is a ground for persecution of Mann party members. See Singh v. Garland, 57 F.4th

10 Appellate Case: 23-9548 Document: 010111084167 Date Filed: 07/24/2024 Page: 11

643, 648 (9th Cir. 2023) (“The Mann Party advocates for the creation of a sovereign

state for Sikh people and is opposed by the Congress Party, one of India's major

political parties.”); Singh v. Whitaker, 914 F.3d 654, 657 (9th Cir. 2019) (“The Mann

Party advocates for Sikh rights and an independent Khalistan state.”).

For these reasons, Mr. Singh has not shown that any reasonable adjudicator

would be compelled to conclude that he established an objectively supportable

well-founded fear of future persecution.

III. Withholding of Removal

Mr. Singh challenges the denial of withholding of removal. His failure to

satisfy the burden of proof for asylum, however, means he also necessarily failed to

satisfy the higher standard for withholding of removal. See Escobar-Hernandez,

940 F.3d at 1362; Zhi Wei Pang, 665 F.3d at 1233.

IV. Relief under the CAT

Finally, Mr. Singh challenges the denial of CAT relief. Having upheld the

Board’s determination that Mr. Singh did not establish past persecution or a

well-founded fear of future persecution, we also uphold the conclusion that he failed

to satisfy the more severe standard applicable to CAT claims. See Zhi Wei Pang,

665 F.3d at 1234; Sidabutar, 503 F.3d at 1125-26. The Board’s findings regarding

the likelihood of torture are supported by substantial evidence.

11 Appellate Case: 23-9548 Document: 010111084167 Date Filed: 07/24/2024 Page: 12

CONCLUSION

We deny the petition for review.

Entered for the Court

Allison H. Eid Circuit Judge