18-3502 Singh v. Garland BIA Nelson, IJ A205 935 204

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of August, two thousand twenty- one.

PRESENT: GUIDO CALABRESI, STEVEN J. MENASHI, Circuit Judges, DENISE COTE, Judge. 1 _____________________________________

SUKHDEV SINGH, Petitioner,

v. 18-3502

MERRICK GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Khagendra Gharti-Chhetry, Esq., New York, NY.

1 Judge Denise Cote of the United States District Court for the Southern District of New York, sitting by designation. FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Russell J. E. Verby, Senior Litigation Counsel; John D. Williams, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Sukhdev Singh, a citizen of India, seeks

review of an October 23, 2018, decision of the BIA affirming

a November 2, 2017, decision of an Immigration Judge (“IJ”)

denying asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Sukhdev Singh, No.

A205 935 204 (B.I.A. Oct. 23, 2018), aff’g No. A205 935 204

(Immig. Ct. N.Y. City Nov. 2, 2017). We assume the parties’

familiarity with the underlying facts and procedural history.

We have reviewed both the IJ’s and the BIA’s opinions

“for the sake of completeness.” Wangchuck v. DHS,

(2d Cir. 2006). We review the agency’s legal

conclusions de novo and its factual determinations for

substantial evidence. “In this context, Congress has

specified that ‘the administrative findings of fact are

2 conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.’” Singh v. Garland,

No. 19-704-AG,

, at *4 (August 25, 2021)

(quoting

(b)(4)(B)). Under the “substantial

evidence” standard of review, we “must defer to the

factfinder’s findings based on ‘such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.’” Majidi v. Gonzales,

(2d Cir.

2005) (quoting Consol. Edison Co. v. NLRB,

(1938)). “The scope of review ‘under the substantial evidence

standard is exceedingly narrow, and we will uphold the BIA’s

decision unless the petitioner demonstrates that the record

evidence was so compelling that no reasonable factfinder

could fail to find him eligible for relief.’” Singh,

, at *4 (quoting Mu Xiang Lin v. DOJ,

(2d Cir. 2005) (internal citations, quotation marks, and

alterations omitted)).

An asylum applicant such as Singh who has suffered past

persecution is presumed to have a well-founded fear of future

persecution.

(b)(1) (2013). 2 The

2 Citations in this order refer to the versions of the applicable regulations that were in effect at the time of Singh’s proceedings before the agency.

3 “presumption may be rebutted” if an IJ finds that “[t]he

applicant could avoid future persecution by relocating to

another part of the applicant’s country . . . and under all

the circumstances, it would be reasonable to expect the

applicant to do so.”

(b)(1)(i)(B) (2013).

When an applicant has established past persecution, the

government may rebut the presumption with a showing, by a

preponderance of the evidence, that the applicant can safely

relocate within his own country.

§ 1208.13(b)(1)(ii). The

agency considers the reasonableness of the relocation,

including “whether the applicant would face other serious

harm in the place of suggested relocation; any ongoing civil

strife within the country; administrative, economic, or

judicial infrastructure; geographical limitations; and social

and cultural constraints, such as age, gender, health, and

social and familial ties.” Id. § 1208.13(b)(3).

We conclude that the agency’s finding that Singh could

internally relocate was supported by substantial evidence.

The record contains evidence, including country condition

reports, indicating that there are sizable Sikh communities

throughout India, including in almost every major Indian

city. The record evidence also indicates that Sikhs face

4 little discrimination in India and have access to housing,

employment, and government services. Moreover, “[s]everal

sources indicate that Sikhs do not face difficulties

relocating to other areas of India.” A.R. 144.

After having evaluated the regulatory factors for

relocation, the agency noted that Singh’s alleged persecutors

were local members of the Congress Party in Haryana and that

government officials were not involved. See Singh,

, at *6 (“An applicant’s allegation that he was

persecuted by members of a political party . . . does not

establish that the applicant was persecuted by the

government.”). Because Singh allegedly suffered persecution

only by local private parties—and because there are Sikh

communities throughout India where Singh can reasonably

relocate—the agency’s finding that Singh could relocate

internally to avoid future persecution was supported by

substantial evidence.

Singh argues that it was erroneous for the agency to

consider whether Sikhs could relocate within India because

Singh’s claim was that he was persecuted on the basis of

political opinion rather than religion. Yet the agency

considered Singh’s claim of political persecution when it

5 determined that the alleged persecution was localized and

could be avoided by relocating within India. It was not

erroneous for the agency also to consider whether Sikhs

generally could relocate within India because, “[i]n the

context of internal relocation, whether Sikhs are able safely

to move throughout India was a relevant consideration.”

Singh,

, at *7 n.6. The applicable regulation

provides that in evaluating the reasonableness of internal

relocation, the agency may consider, inter alia, “whether the

applicant would face other serious harm in the place of

suggested relocation.”

(b)(3)(2013). 3

We have recently reaffirmed our holding that “[a]n Indian

citizen ‘is unlikely to face persecution for his Sikh beliefs

and his membership in Akali Dal Mann’ and ‘any threat faced

by such an applicant in India is not country-wide.’” Singh,

, at *8 (quoting Singh v. BIA,

,

3 Singh also objects that the agency improperly placed the burden on him to show that it was reasonable for him to relocate internally within India. We disagree. The agency properly explained that “where the respondent has established past persecution, it is presumed that internal relocation would be unreasonable unless it is proven to the contrary.” A.R. 36. The agency also explained that Singh “was not required to establish that he could not reasonably relocate. Rather, based on [Singh’s] testimony and evidence of record, the Immigration Judge concluded that a preponderance of the evidence established that [Singh] could reasonably relocate to avoid persecution,” A.R. 4, and its analysis was consistent with that standard.

6 219 (2d Cir. 2006)). That holding requires us to conclude

that the agency’s internal relocation finding was supported

by substantial evidence. Because Singh’s CAT claim rested on

the same factual basis as his claim for asylum and withholding

of removal, the agency’s internal relocation finding is

dispositive of all relief. “Singh’s ability to relocate

internally means that he cannot establish a likelihood of

torture.”

“In assessing whether it is more likely than

not that an applicant would be tortured in the proposed

country of removal,” the agency considers “all evidence

relevant to the possibility of future torture … including …

[e]vidence that the applicant could relocate to a part of the

country of removal where he or she is not likely to be

tortured.”

(c)(3). The agency properly

relied on such evidence here.

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

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

7