JAGDEEP SINGH, Petitioner, v. MERRICK GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.
No. 19-704-ag
United States Court of Appeals FOR THE SECOND CIRCUIT
AUGUST 25, 2021
AUGUST TERM 2020
SUBMITTED: MAY 17, 2021
Before: LIVINGSTON, Chief Judge, and JACOBS and MENASHI, Circuit Judges.
On Petition for Review of an Order of the Board of Immigration Appeals
* The Clerk of Court is directed to amend the caption as set forth above.
Petitioner Jagdeep Singh, a citizen of India, petitions for review of a February 22, 2019, decision of the Board of Immigration Appeals affirming a November 21, 2017, decision of an immigration judge denying his application for asylum, withholding of removal, and protection under the Convention Against Torture. We conclude that the agency properly determined that Singh could safely relocate within India to avoid the possibility of future persecution or torture and that it would be reasonable to expect him to do so. Singh cannot challenge the agency‘s determination by relying on general country conditions evidence without showing how the evidence demonstrates that a person in his particular circumstances would be subject to persecution or torture. Singh‘s allegation that he was mistreated by members of a political party that is aligned with a party in power nationally does not undermine the agency‘s conclusion that he can safely relocate within the country. Accordingly, we DENY the petition for review.
Jaspreet Singh, Jackson Heights, New York, for Petitioner.
Genevieve M. Kelly, Office of Immigration Litigation (Joseph H. Hunt, Assistant Attorney General, Civil Division, Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, on the brief), United States Department of Justice, Washington, D.C., for Respondent.
Jagdeep Singh petitions for review of a decision of the Board of Immigration Appeals affirming an immigration judge‘s denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT“). The agency found that Singh suffered persecution when members of a rival political party assaulted him after he refused to leave his own party. But the agency denied his application for relief because Singh could safely relocate within India. The issue before us is whether the agency erred in finding that Singh could safely relocate within India to avoid future persecution or torture and that it would be reasonable to expect him to do so. We conclude that the agency did not err. Accordingly, we deny the petition for review.
BACKGROUND
Singh is a citizen of India who arrived in Hildago, Texas, on or about November 5, 2014, without a valid visa or entry document. In December 2014, Singh expressed a fear of returning to India and was placed in removal proceedings. The Notice to Appear charged Singh with being removable under
I
Singh appeared before an immigration judge (“IJ“) in Los Fresnos, Texas, on December 14, 2014. He admitted the allegations
On November 21, 2017, the IJ in New York held a hearing on Singh‘s application for asylum, withholding of removal, and protection under the CAT. At the hearing, Singh testified that he left India because he feared being harmed by members of a rival political party. He said that he joined the Shiromani Akali Dal Amritsar (“Akali Dal Mann“) political party in India in 2013 and that he worked for the party in the Hoshiarpur district in the state of Punjab by serving food and setting up tents at events. He explained that the party supports the establishment of an independent state of Khalistan and the release of Sikh prisoners from Indian jails. He further stated that he had no leadership role in the party, that he never engaged in political activity outside of Hoshiarpur, and that members of other parties realized he was a member of Akali Dal Mann when they saw him putting up flyers for an event. He also testified that he did not know any fellow party members who were persecuted within Punjab other than himself.
Singh testified that in July 2014 while he was attending one of his party‘s rallies, he received a call on his cell phone from an individual claiming to be a member of the rival Shiromani Akali Dal Badal (“Akali Dal Badal“) political party. The caller purportedly told Singh that he should work for the Akali Dal Badal “and sell drugs” if he wanted to avoid being killed. Cert. Admin. R. at 100. Singh said that he reported the conversation to the police near the rally but that the police officers responded that they could not respond to the threat because they were “working for the government” and could not “do anything about it.” Id.
Singh also testified that in August 2014 he was approached in person by five individuals claiming to be members of the Akali Dal Badal who similarly told him that “we want you to come and sell drugs for us and work for our party.” Id. at 102. When Singh refused to do that, the five individuals beat him until he lost consciousness. Singh claimed that while he was unconscious, a passerby recognized him and took him home. After Singh woke up at home, his father took him to the hospital where he received intravenous fluid and “some ointment to put ... on my body.” Id. at 103. He was in the hospital for six or seven hours. Singh said that he never reported the beating to the police. He said that his father advised him not to contact the police because the police officers had not responded to the threatening phone call he had previously reported. Singh said he was “fearful for my life.” Id. at 104.
Singh said that he did not move to another part of India to avoid the rival party members because, when he rented a home or applied for a job, he would need to provide identification. If he showed his identification to anyone, he said, “[i]t‘s a very strong possibility that ... I would [be] tracked down and I would have been killed.” Id. at 104. Counsel for the government asked Singh how someone would know from his identification card—which contained his name, address, and birthdate—that he supported the Akali Dal Mann. Singh responded that “[t]his is how it is all over India. That‘s how they trace people and they kill them.” Id. at 111. He also suggested that members of an opposing party across India would recognize him because of his work hanging up posters and flyers in Hoshiarpur.
After considering Singh‘s testimony and the documentary evidence in the record describing political and social conditions in
Regarding Singh‘s ability to relocate, the IJ observed that according to a State Department report, Indian law provides for freedom of movement and that the government generally respects that right. The IJ also examined other reports showing that police forces in each Indian state do not routinely communicate about the relocation of citizens. The IJ relied on a report of the Canadian Refugee Board stating that “several sources indicate that Sikhs do not face difficulties relocating to other areas of India.” Cert. Admin. R. at 63. The IJ also noted that other reports indicated that “India is a country of some 1.2 billion people and that there are sizable Sikh populations through[out] the country.” Id.
In response to Singh‘s claim that he would be discovered in a different region of India on account of his identification card, the IJ observed that a report by the United Kingdom‘s Home Office explained that India lacks a national police force and a nationwide crime database. The Home Office found no “evidence that there is a central registration system in place which would enable the police to check the whereabouts of inhabitants in their own state, let alone in any other states or unions within the country.” Id. The IJ also described the Canadian Refugee Board‘s finding that “there is little interstate police communication [in India] except for cases of major crimes like smuggling, terrorism, and some high profile organized crime.” Id. Based on this evidence, the IJ concluded that Singh “would be difficult to locate outside of Punjab even if Punjabi police were seeking him.” Id. Moreover, the IJ noted that Singh did not even claim to have been targeted by Punjabi police but only by supporters of a rival political party who threatened him over the phone and assaulted him once. The IJ found that even though local police did not respond to the phone threats Singh reported, there was nothing in the record to show that the police were other than merely indifferent, let alone that the police would seek out Singh in another state or assist others in doing so.
Noting that Singh did not allege to be a high-profile member of the Akali Dal Mann, the IJ also relied on a report of the Library of Congress indicating that “only hardcore militants are of interest to Central Indian authorities” and that one does not qualify as a high profile militant merely by holding pro-Khalistan views. Id. at 64. The IJ also observed that “neither the 2016 U.S. Department of State Human Rights Report for India nor the most recent International Religious Freedom Report mentions the persecution of Shiromani Akali Dal Amritsar members in Punjab or elsewhere in India.” Id.
II
Singh appealed the IJ‘s decision to the Board of Immigration Appeals (“BIA“), arguing that he was a prominent figure in the Akali Dal Mann, that the IJ erred by finding that Singh was not a member of the party, and that it was not reasonable
In a February 22, 2019, decision, the BIA dismissed the appeal. The BIA accepted the IJ‘s finding that Singh suffered past persecution, but it also agreed with the IJ that the government had shown that Singh could avoid future persecution by safely relocating within India and that it would be reasonable for him to do so. The BIA observed that the IJ properly shifted the burden to the government to demonstrate Singh‘s ability to relocate safely and that the government met that burden by a preponderance of the evidence. The BIA concluded that the record supported the IJ‘s findings that Indian law provides for freedom of movement and that there was no central registration system in India that would enable police to monitor the whereabouts of inhabitants throughout the country. The BIA also said the record supported the IJ‘s findings that there is no national police force in India, that police stations are unconnected, and that there is little communication between stations except in cases involving major crimes such as smuggling, terrorism, and organized crime. The BIA also found support in the record for the IJ‘s finding that Sikhs do not face difficulty relocating within India.
The BIA further concluded that the IJ properly found that Singh held no special position in the Akali Dal Mann and that his activities were limited to attending events and posting flyers. The BIA also found no error in the IJ‘s determination that only high-profile militants are of interest to Indian authorities and that “simply holding pro-Khalistan views would not make someone fit this description.” Cert. Admin. R. at 4. The BIA also said the IJ properly found that the 2016 State Department report does not mention persecution of members of the Akali Dal Mann either in Punjab or elsewhere in India and that Singh did not know anyone else who had been persecuted for membership in that party.
In light of the record evidence, the BIA affirmed the IJ‘s denial of immigration relief. It explained that the IJ‘s findings “demonstrate that there are areas in India where [Singh] does not have a well founded fear of persecution and these locations present circumstances that are substantially better than those giving rise to a well-founded fear of persecution on the basis of [his] claim,” according to the BIA. Id. Moreover, the IJ “permissibly relied on his findings concerning country conditions in determining that it would be reasonable for [Singh] to relocate there” and “properly evaluated the background evidence with respect to both [Singh‘s] Sikh faith and his membership in a political party.” Id. at 4-5.
Singh timely petitioned this court for review. He argues that the government failed to show that internal relocation would be reasonable and that he established his eligibility for relief under the CAT.
DISCUSSION
We have jurisdiction to review the decision of the BIA under
A recent decision from our court suggested that
and there is no basis for extending the holding and reasoning of the recent Singh case beyond that limited context. Accordingly, we apply the ordinary meaning of
Asylum is a discretionary form of relief that the Attorney General may grant to an applicant who qualifies as a refugee.
An applicant who has established past persecution is “presumed to have a well-founded fear of persecution on the basis of the original claim.”
Withholding of removal, meanwhile, is mandatory “if the Attorney General decides that the alien‘s life or freedom would be threatened” in the country to which the alien would be removed “because of the alien‘s race, religion, nationality, membership in a particular social group, or political opinion.”
Both asylum and withholding of removal depend on a showing of persecution. “To qualify as ‘persecution’ the conduct at issue must be attributable to the government, whether directly because engaged in by government officials, or indirectly because engaged in by private persons whom the government is ‘unable or unwilling to control.‘” Scarlett v. Barr, 957 F.3d 316, 328 (2d Cir. 2020) (quoting Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015)); see also Rizal v. Gonzales, 442 F.3d 84, 92 (2d Cir. 2006) (noting that persecution may “be found when the government, although not itself conducting the persecution, is unable or unwilling to control it“). Under the unwilling-or-unable standard, “a finding of persecution ordinarily requires a determination that government authorities,
Singh also seeks protection under regulations implementing the CAT. Under those provisions, removal will be withheld or deferred if the applicant establishes that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.”
II
In this case, we decide whether the agency erred in finding that Singh could safely and reasonably relocate within India and how that determination affects Singh‘s claims for asylum, withholding, and CAT relief.
We conclude that the agency‘s finding that Singh could internally relocate was supported by substantial evidence. Singh argues that the agency erred because internal relocation would not help him avoid future persecution. He claims that he “was persecuted by the government” because he was harmed by members of “the Akali Dal Badal party which is in coalition with the [Bharatiya Janata Party (“BJP“)] that is the ruling party in India.” Petitioner‘s Br. 15-16. Singh contends that “[w]hen the persecutor is the government, ‘it has never been thought that there are safe places within a nation.‘” Id. at 16 (quoting Singh v. Moschorak, 53 F.3d 1031, 1034 (9th Cir. 1995)) (alteration omitted).
Contrary to his contention, however, Singh was not persecuted by the government. An applicant‘s allegation that he was persecuted by members of a political party—even one that is in power nationally or, as Singh alleges of the Akali Dal Badal, is aligned with a party in power nationally3—does not establish that the applicant was persecuted by the government. Members of a political party are not the government; for mistreatment inflicted by party members to amount to persecution, an applicant must show that the government
was unwilling or unable to control the attackers. Pan, 777 F.3d at 543; Galina, 213 F.3d at 958.
In this case, the agency determined that Singh had been subjected to past persecution based on his mistreatment by Akali Dal Badal members without finding that the government had condoned the mistreatment or was unable to control the attackers. Cert. Admin. R. at 61. We doubt that the finding of past persecution was correct, but we need not disturb that unchallenged finding in order to reject Singh‘s argument that “there are [no] safe places” for him “within” India because he “was persecuted by the government.” Petitioner‘s Br. 15-16. Neither the IJ nor the BIA was required to attribute an attack by members of a regional party in Punjab to the national government of India. Instead, the IJ properly concluded that Singh had not been targeted even by local authorities. See Cert. Admin. R. at 63 (“[R]espondent has not claimed that he was ever targeted by Punjabi police. Instead, he claims that it was supporters of a rival political party who made threats over the phone and then beat him on one occasion.“). While Singh testified that the police failed to assist him in connection with his report of a telephone threat, “it does not follow that police in Punjab would seek to find him if he returned to the country and lived in another state or that they would assist others in doing so.” Id. at 64.4
Next, Singh argues that the record demonstrates that he will face persecution even if he relocates within India. He points to country-conditions evidence showing various harms that have purportedly occurred in India: “corruption,” “reports of political prisoners in certain states,” “instances of censorship and harassment of media outlets,” “[l]egal restrictions on religious conversion,” and “discrimination based on religious affiliation, caste or tribe.” Petitioner‘s Br. 11. He notes other country-conditions evidence suggesting that “[m]any police officers refuse to register crime complaints,” “use illegal detention, torture, and ill treatment to punish criminals against whom they lack of time or inclination to build cases,” and “arrest and detain individuals on false charges at the behest of powerful local figures or due to other forms of corruption.” Id. at 15-16.
This evidence, however, does not compel the conclusion that internal relocation would not avert future persecution. First, an applicant challenging a finding that internal relocation would avert future persecution—like all applicants challenging an adverse agency determination regarding future persecution or torture—cannot simply point to general country-conditions evidence without showing how that evidence compels the conclusion that a person in the applicant‘s “particular circumstances” would be unable to relocate to avoid persecution. Zhong v. DOJ, 480 F.3d 104, 126 n.26 (2d Cir. 2007); see also Mu Xiang Lin, 432 F.3d at 160 (noting the importance of “particularized evidence“). General country-conditions evidence
authorities affects the feasibility of internal relocation depends on the circumstances of the particular case. Here, the agency reasonably concluded that—even assuming that Singh faced a threat of persecution in his locality—that threat does not exist nationwide.
does not on its own compel the conclusion that an individual will be persecuted
Finally, Singh‘s evidence does not compel the conclusion that it would be unreasonable to expect him to relocate internally to avoid future persecution. Under the regulations in place at the time of Singh‘s proceedings, the agency determined the reasonableness of internal relocation by considering “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.”
The agency‘s decision that it would be reasonable to expect Singh to relocate was supported by substantial evidence. The record contained evidence that there are 1.2 billion people, including 19 million Sikhs, living in India and that Indian citizens—Sikhs in particular—do not face difficulties relocating within the country.6 The record also reflected that there is no central countrywide registration system or nationwide police database that members of the Akali Dal Badal could use to track rivals and that only high-profile militants—not local party organizers such as Singh—are of interest to national authorities. As the IJ noted, there have been no recent reports of persecution against members of the Akali Dal Mann anywhere in India and Singh did not identify any, let alone enough to be arguably nationwide. Moreover, evidence of police abuse of prisoners was not material to the analysis because Singh did not claim to be a target of police or establish that he was likely to become a prisoner.
Singh additionally argues that it would not be reasonable for him to relocate because he was a farmer in Punjab and Sikhs cannot own land in the state of Gujarat, language barriers exist in some states, and unskilled Sikhs face difficulties finding employment. Singh does
Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg. 80,274, 80,387 (Dec. 11, 2020).
not provide evidence suggesting that such issues are widespread, and indeed not limited to a few
In the end, what we recognized fifteen years ago remains true today: An Indian citizen such as Singh “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 v. BIA, 435 F.3d 216, 219 (2d Cir. 2006). We hold again, on a current record, that these conclusions of the agency are supported by substantial evidence. The agency therefore did not err in deciding that, in this case, the government rebutted the presumption that Singh has a well-founded fear of persecution by showing that he could safely and reasonably relocate to avoid future persecution. See
This determination is dispositive of Singh‘s application for asylum and eligibility for withholding of removal. Id.
CONCLUSION
“Asylum in the United States is not available to obviate relocation to sanctuary in one‘s own country.” Singh, 435 F.3d at 219. Here, the agency did not err in finding that Singh could safely and reasonably relocate within India to avoid future persecution or torture and that it would be reasonable to expect him to do so. We therefore DENY the petition for review. All pending motions and applications are DENIED and stays VACATED.