20-469 Singh v. Garland

BIA Lopez Defillo, IJ A208 751 415 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 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 11th day of April, two thousand twenty-two. 5 6 PRESENT: 7 RICHARD J. SULLIVAN, 8 WILLIAM J. NARDINI, 9 EUNICE C. LEE, 10 Circuit Judges. 11 _____________________________________ 12 13 LAKHVINDER SINGH, AKA LAKHVINDER 14 THAPA, 15 Petitioner, 16 17 v. 20-469 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Jaspreet Singh, Esq., Jackson 25 Heights, NY. 26 27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 28 Assistant Attorney General; 29 Anthony P. Nicastro, Assistant 1 Director; Sherease Pratt, Senior 2 Litigation Counsel, Office of 3 Immigration Litigation, United 4 States Department of Justice, 5 Washington, DC.

6 UPON DUE CONSIDERATION of this petition for review of a

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

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

9 is DISMISSED in part and DENIED in part.

10 Petitioner Lakhvinder Singh, a native and citizen of

11 India, seeks review of a January 27, 2020 decision of the BIA

12 that affirmed a March 19, 2018 decision of an Immigration

13 Judge (“IJ”) denying asylum, withholding of removal, and

14 protection under the Convention Against Torture (“CAT”). In

15 re Lakhvinder Singh, No. A 208 751 415 (B.I.A. Jan. 27, 2020),

16 aff’g No. A 208 751 415 (Immigr. Ct. N.Y. City Mar. 19, 2018).

17 We assume the parties’ familiarity with the underlying facts

18 and procedural history.

19 We have reviewed the IJ’s decision as supplemented by

20 the BIA. See Yan Chen v. Gonzales,

(2d

21 Cir. 2005). We review the agency’s factual findings for

22 substantial evidence, and we review questions of law de novo.

23 See

(b)(4)(B); Wei Sun v. Sessions,

23, 27 (2d Cir. 2018). We do not consider Singh’s argument 2 1 that the IJ “failed to create a record” because it was not

2 raised before the BIA. See Lin Zhong v. U.S. Dep’t of

3 Justice,

, 107 n.1, 120–22 (2d Cir. 2007) (holding

4 that, although issue exhaustion is not a jurisdictional

5 requirement, it is “mandatory”).

6 I. Timeliness of the Asylum Application

7 Except in circumstances not relevant here, an asylum

8 applicant must demonstrate by “clear and convincing evidence”

9 that he applied for asylum within one year of entry. 8 U.S.C.

10 § 1158(a)(2)(B). We dismiss Singh’s petition for lack of

11 jurisdiction insofar as it challenges the IJ’s finding that

12 his asylum application was untimely because he does not raise

13 any challenge to the IJ’s application of the law. See 8

(a)(3), 1252(a)(2)(D). Singh’s argument that

15 the record demonstrates a timely filing does not raise a

16 question of law because the evidence he points to was not

17 part of the record before the IJ.

18 II. Withholding of Removal and CAT Protection

19 The agency did not err in concluding that Singh failed

20 to demonstrate that the past harm he suffered rose to the

21 level of persecution, or that he would more likely than not

3 1 be persecuted or tortured if he were forced to return to

2 India. See

(b), (c). “[P]ersecution is

3 ‘an extreme concept that does not include every sort of

4 treatment our society regards as offensive.’” Mei Fun Wong

5 v. Holder,

(2d Cir. 2011) (quoting Ai Feng

6 Yuan v. U.S. Dep’t of Justice,

(2d Cir.

7 2005)). It “encompasses a variety of forms of adverse

8 treatment, including non-life-threatening violence and

9 physical abuse,” but the harm must be sufficiently severe,

10 rising above “mere harassment.” Ivanishvili v. U.S. Dep’t

11 of Justice,

(2d Cir. 2006) (internal

12 quotation marks and alteration omitted). “‘[T]he difference

13 between harassment and persecution is necessarily one of

14 degree,’ . . . [and] the degree must be assessed with regard

15 to the context in which the mistreatment occurs.” Beskovic

16 v. Gonzales,

(2d Cir. 2006) (quoting

17 Ivanishvili,

).

18 Singh testified that members of the ruling Bharatiya

19 Janata Party (“BJP”) and Akali Dal Badal Party (“Badal Party”)

20 assaulted him twice and threatened to kill him because he was

21 a member of the Shiromani Akali Dal Mann (Amritsar) Party

4 1 (“Mann Party”) and refused to join their parties. The agency

2 did not err in concluding that this harm did not amount to

3 persecution, given the context and extent of the harm. See

4 Mei Fun Wong,

(observing that the context of

5 the harm matters). The IJ appropriately considered that

6 Singh did not seek medical treatment after either attack or

7 have visible injuries. Cf. Jian Qiu Liu v. Holder,

(2d Cir. 2011) (finding no error in the agency’s

9 determination that an alien failed to establish past

10 persecution when “he suffered only minor bruising from an

11 altercation with family planning officials, which required no

12 formal medical attention and had no lasting physical

13 effect”). Moreover, Singh was not assaulted by government

14 actors, and the assaults did not occur in the context of an

15 arrest or detention, where minor physical harm is more likely

16 to constitute persecution. See Singh v. Garland,

106, 115–16 (2d Cir. 2021) (holding that IJ properly found

18 that a beating and threat by rival party members did not

19 amount to targeting by the authorities even where the police

20 failed to act on a report); Beskovic,

(“[A]

21 minor beating . . . may rise to the level of persecution if

5 1 it occurred in the context of an arrest or detention on the

2 basis of a protected ground.”).

3 Because Singh did not demonstrate past persecution, he

4 was not entitled to a presumption of future persecution. See

5

(b)(2). Absent past persecution, an

6 applicant may establish eligibility for withholding of

7 removal by demonstrating that he would “more likely than not”

8 be persecuted in the future. Id.; see Ramsameachire v.

9 Ashcroft,

(2d Cir. 2004) (requiring

10 applicant to show that fear is “objectively reasonable”). An

11 applicant must show either that he would be singled out for

12 persecution or that the country of removal has a pattern or

13 practice of persecuting similarly situated individuals.

14

(b)(2). Under the substantial evidence

15 standard, the agency’s findings of fact are “conclusive

16 unless any reasonable adjudicator would be compelled to

17 conclude to the contrary.”

(b)(4)(B); see

18 Castro v. Holder,

, 99–100 (2d Cir. 2010).

19 The record does not compel a conclusion contrary to the

20 agency’s determination that Singh did not establish that he

21 will more likely than not be persecuted if forced to return

6 1 to India. Singh relied on reports from the U.S. State

2 Department and the Immigration and Refugee Board of Canada to

3 assert a pattern or practice of persecution of members of the

4 Mann Party. Although the State Department report does

5 mention instances of violence based on religious affiliation,

6 it does not mention the Mann Party or violence against Sikhs.

7 The Canadian reports provide that people affiliated with a

8 political party in Punjab sometimes face harassment or

9 physical harm at the hands of members of other parties, as

10 Singh did. They also state that members of the Mann Party,

11 which advocates for a separate Sikh state known as Khalistan,

12 are sometimes threatened, harassed, and subject to violence

13 by members of the Badal Party and BJP. Mann Party members

14 who “are known to be advocates for Khalistan” are monitored

15 by police and sometimes subjected to more severe harm, but

16 the reports do not demonstrate that a person similarly

17 situated to Singh—who did not describe any public political

18 activity besides putting up posters and refusing to join the

19 ruling parties—is likely to be persecuted for supporting the

20 Mann Party.

7 1 The remainder of Singh’s evidence also does not compel a

2 finding that Mann Party members or Sikhs in Punjab are subject

3 to a pattern or practice of persecution. Thus, there is no

4 indication that the IJ failed to consider all the evidence or

5 that Singh met his burden to demonstrate a sufficient

6 likelihood of persecution. See Xiao Ji Chen v. Holder, 471

, 336 n.17 (2d Cir. 2006) (“[W]e presume that an IJ

8 has taken into account all of the evidence before him, unless

9 the record compellingly suggests otherwise.”); Jian Xing

10 Huang v. U.S. INS,

(2d Cir. 2005) (holding

11 that a fear is not objectively reasonable if it lacks “solid

12 support” in the record and is merely “speculative at best”).

13 In sum, the agency did not err in finding that Singh did

14 not meet his burden to show past harm rising to the level of

15 persecution or that he would more likely than not be

16 persecuted or tortured in the future if forced to return to

17 India. See

(b)(1), (2), (c)(2).

18

8 1 For the foregoing reasons, the petition for review is

2 DISMISSED in part and DENIED in remaining part. All pending

3 motions and applications are DENIED and stays VACATED.

4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court

9