18-2219 Singh v. Barr BIA McCarthy, IJ A206 895 563 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 TO 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 3rd day of March, two thousand twenty. 5 6 PRESENT: 7 PETER W. HALL, 8 SUSAN L. CARNEY, 9 JOSEPH F. BIANCO, 10 Circuit Judges. 11 _____________________________________ 12 13 GURPREET SINGH, AKA GOPI THAP, 14 Petitioner, 15 16 v. 18-2219 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Deepti Vithal, Richmond Hill, NY. 24 25 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 26 General; Mary Jane Candaux, 27 Assistant Director; Stephen Finn, 28 Trial Attorney, Office of 29 Immigration Litigation, United 1 States Department of Justice, 2 Washington, DC.

3 UPON DUE CONSIDERATION of this petition for review of a

4 Board of Immigration Appeals (“BIA”) decision, it is hereby

5 ORDERED, ADJUDGED, AND DECREED that the petition for review

6 is DENIED.

7 Petitioner Gurpreet Singh, a native and citizen of India,

8 seeks review of a July 10, 2018 decision of the BIA affirming

9 an October 24, 2017 decision of an Immigration Judge (“IJ”)

10 denying Singh’s application for asylum, withholding of

11 removal, and relief under the Convention Against Torture

12 (“CAT”). In re Gurpreet Singh, No. A 206 895 563 (B.I.A.

13 July 10, 2018), aff’g No. A 206 895 563 (Immig. Ct. N.Y. City

14 Oct. 24, 2107). We assume the parties’ familiarity with the

15 underlying facts and procedural history in this case.

16 We have reviewed the IJ’s decision as modified and

17 supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of

18 Justice,

(2d Cir. 2005); Yan Chen v.

19 Gonzales,

(2d Cir. 2005). The standards

20 of review are well established. See

(b)(4);

21 Hong Fei Gao v. Sessions,

(2d Cir. 2018);

22 Y.C. v. Holder,

(2d Cir. 2013).

2 1 Credibility1

2 The agency may, “[c]onsidering the totality of the

3 circumstances . . . base a credibility determination on the

4 demeanor, candor, or responsiveness of the applicant,” the

5 plausibility of his account, and inconsistencies in his

6 statements or between his statements and other evidence,

7 without regard to whether they go “to the heart of the

8 applicant’s claim.”

(b)(1)(B)(iii).

9 The IJ found that Singh testified credibly, except as to

10 his allegation that he was attacked by members of the

11 religious group Dera Sacha Sauda (“DSS”) because of his Sikh

12 religion in September 2014. Substantial evidence supported

13 the partial adverse credibility determination because Singh’s

14 testimony was internally inconsistent as to whether he was

15 unconscious or half-conscious following the beating, and his

16 written statement did not mention that he was rendered

17 unconscious or half-conscious when describing his injuries.

18 See

(b)(1)(B)(iii); Ramsameachire v. Ashcroft,

19

, 180–81 (2d Cir. 2004) (holding that “materially

20 different accounts” of past persecution “may render the

1 Contrary to the BIA’s conclusion, Singh challenged the IJ’s partial adverse credibility determination before the BIA. See Certified Administrative Record at 10, 17 (Brief to BIA). 3 1 alien’s testimony incredible”).

2 Past Persecution

3 The agency did not err in determining that the remaining

4 credible claims did not establish harm rising to the level of

5 persecution. “Persecution is an extreme concept that does

6 not include every sort of treatment our society regards as

7 offensive.” Mei Fun Wong v. Holder,

(2d Cir.

8 2011) (internal quotation marks omitted). A valid claim of

9 past persecution may “encompass[] a variety of forms of

10 adverse treatment, including non-life-threatening violence

11 and physical abuse,” but the harm must be more severe than

12 “mere harassment.” Ivanishvili v. U.S. Dep’t of Justice, 433

(2d Cir. 2006) (internal quotation marks and

14 brackets omitted). The difference between harassment and

15 persecution is “necessarily one of degree that must be decided

16 on a case-by-case basis.”

We review de novo whether the

17 harm rises to the level of persecution. See Edimo-Doualla

18 v. Gonzales,

, 281–82 (2d Cir. 2006).

19 The agency credited Singh’s allegations that DSS

20 followers threatened him on two occasions and that a group of

21 older classmates beat and taunted him in July 2013. Singh

22 did not present evidence regarding the extent of his injuries

4 1 following the July 2013 beating. Taken together, these

2 events do not rise to the level of persecution. See Jian Qiu

3 Liu v. Holder,

(2d Cir. 2011) (holding

4 beating and subsequent detention did not constitute

5 persecution where beating occurred prior to detention and

6 applicant “suffered only minor bruising . . . , which required

7 no formal medical attention and had no lasting physical

8 effect”).

9 Future Persecution

10 Absent past persecution, an applicant may prevail on an

11 asylum claim by demonstrating that he subjectively fears

12 future persecution and that his fear is objectively

13 reasonable. Ramsameachire,

. An applicant

14 may make this showing by establishing either a “reasonable

15 possibility he . . . would be singled out individually for

16 persecution,” or a “pattern or practice” of persecution of

17 “persons similarly situated” to him. 8 C.F.R.

18 § 1208.13(b)(2)(iii); see also Y.C.,

; In re

19 A-M-,

(B.I.A. 2005) (defining pattern

20 or practice of persecution as “systemic or pervasive”

21 persecution of a group). A fear is objectively reasonable

22 “even if there is only a slight, though discernible, chance

5 1 of persecution.” Diallo v. INS,

(2d Cir.

2 2000) (citing INS v. Cardoza-Fonseca,

, 431

3 (1987)). But a fear is not objectively reasonable if it

4 lacks “solid support” in the record and is merely “speculative

5 at best.” Jian Xing Huang v. U.S. INS,

(2d

6 Cir. 2005).

7 Singh did not meet his burden to establish a reasonable

8 possibility that he would be singled out for persecution. He

9 asserted that he would be persecuted because he was an active

10 member of the Sikh community and a preacher.2 The agency did

11 not err in concluding that Singh failed to present reasonably

12 available corroboration of these claims. “Where the trier

13 of fact determines that the applicant should provide evidence

14 that corroborates otherwise credible testimony, such evidence

15 must be provided unless the applicant does not have the

16 evidence and cannot reasonably obtain the evidence.” 8

(b)(1)(B)(ii). Contrary to Singh’s argument on

2Singh argues here that he never claimed a prominent role or a role as a preacher. This argument is contrary to Singh’s testimony. See, e.g., Certified Administrative Record at 143 (“I was very active preaching my Sikh religion.”), 144 (“I will be very apparent in front row, and I will preach for Sikh religion . . . . I would approach people, go home and tell people that accept Sikh religion, follow Sikh religion.”), 146 (“Q: Why the DSS people were just picking at you? A: Because I was very active preaching of my religion.”). 6 1 appeal, the agency did not err in concluding that such

2 evidence was reasonably available: Singh conceded that he

3 could have provided evidence of his past activities preaching

4 at Sikh events and of his continued religious practice. Nor

5 did the agency err in requiring corroborating evidence

6 without first providing Singh additional time to present it.

7 See Wei Sun v. Sessions,

(2d Cir. 2018)

8 (deferring to the BIA’s determination that IJ is not required

9 “to identify the specific evidence necessary to meet the

10 applicant’s burden of proof and to provide an automatic

11 continuance for the applicant to obtain that evidence prior

12 to rendering a decision on the application”). Further, the

13 agency did not err in affording diminished weight to the

14 affidavits in the record because none of them corroborated

15 Singh’s testimony about his religious activities, they were

16 “very similar,” and some of the authors were interested

17 parties unavailable for cross-examination. See Y.C., 741

18 F.3d at 332, 334 (holding that “[w]e generally defer to the

19 agency’s evaluation of the weight to be afforded an

20 applicant’s documentary evidence” and deferring to agency’s

21 decision to afford little weight to relative’s letter from

22 China because it was unsworn and from an interested witness);

7 1 Mei Chai Ye v. U.S. Dep’t of Justice,

(2d

2 Cir. 2007) (“our case law on intra-proceeding similarities

3 has firmly embraced the commonsensical notion that striking

4 similarities between affidavits are an indication that the

5 statements are ‘canned’”). Absent evidence corroborating his

6 testimony regarding his role in the Sikh community, Singh did

7 not meet his burden to show that he had a well-founded fear

8 of persecution on that basis. See Jian Xing Huang,

.

10 Singh also failed to establish a pattern or practice of

11 persecution of Sikhs in India. The agency took

12 administrative notice of State Department reports for 2016

13 and 2017, which document some violence against Sikhs, but do

14 not discuss any abuse of Sikhs by DSS members. See, e.g.,

15 India 2016 Int’l Religious Freedom Rep. at 8, available at

16 https://www.state.gov/wp-content/uploads/2019/01/India-

17 3.pdf.3 The news articles in the record show tensions between

18 Sikhs and the DSS, as well as some police violence against

19 Sikhs engaged in anti-DSS protests. It also shows that the

20 head of the DSS was convicted on rape charges and sentenced

3 Singh does not challenge the documents of which the agency took administrative notice. 8 1 to 20 years’ incarceration in 2017. This evidence fails to

2 establish that the DSS engages in “systemic and pervasive”

3 persecution of Sikhs sufficient to demonstrate a pattern or

4 practice of persecution in India. See 8 C.F.R.

5 § 1208.13(b)(2)(iii); In re A-M-,

. In

6 addition, contrary to Singh’s argument, the agency did not

7 err in considering that his sisters have not suffered

8 significant harm in India, where they remain, in finding that

9 he did not have a well-founded fear of future persecution.

10 See Melgar de Torres v. Reno,

(2d Cir. 1999)

11 (finding fear of future persecution diminished where

12 applicant’s mother and daughters continued to live unharmed

13 in applicant’s native country).

14 In sum, Singh did not meet his burden for asylum because

15 he did not present credible evidence of past harm rising to

16 the level of persecution, he did not adequately corroborate

17 his claim that he would be singled out for future persecution

18 based on his active role in the Sikh community, and he did

19 not establish a pattern or practice of persecution of Sikhs

20 in India. See

(b)(1)(B); 8 C.F.R.

21 § 1208.13(b)(1), (2). Because Singh failed to meet his

22 burden for asylum, he “necessarily” failed to meet the higher

9 1 standards for withholding of removal and CAT relief. See

2 Lecaj v. Holder,

(2d Cir. 2010).

3 For the foregoing reasons, the petition for review is

4 DENIED. All pending motions and applications are DENIED and

5 stays VACATED.

6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, 8 Clerk of Court

10