Kumar v. Garland
| Decision Date | 21 September 2022 |
| Docket Number | 20-60712 |
| Parties | Pardeep Kumar, Petitioner, v. Merrick Garland, U.S. Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Petition for Review of an Order of the Board of Immigration Appeals BIA No. A201 680 166
Before Jones, Southwick, and Oldham, Circuit Judges.
Pardeep Kumar petitions for review of an order of the Board of Immigration Appeals. The order dismissed his appeal of an Immigration Judge's denials of his claims for asylum withholding of removal, and protection under the Convention Against Torture. He presents several procedural and substantive challenges on appeal.
We DISMISS his petition for review in part and DENY it in part.
Pardeep Kumar, a native and citizen of India, entered the United States without inspection in January 2019. On January 21 2019, an asylum officer conducted a credible fear interview with Kumar and found that he had a credible fear of persecution if he returned to India. The asylum officer then referred his case to an immigration judge ("IJ"). Shortly after, the Department of Homeland Security issued Kumar a Notice to Appear and charged him as an alien removable for entering the United States without valid entry documents and for being present in the United States without admission or parole.
On April 18, 2019, the IJ sustained both charges of removability. Kumar then told the IJ he wanted to apply for asylum and withholding of removal, and later mailed the court a formal application. He also attached a declaration to his application. The IJ scheduled Kumar's merits hearing for July 23, 2019, but the hearing was continued because Kumar was in the hospital due to the physical effects of his participation in a hunger strike.
On November 15, 2019, the IJ convened court again for the merits hearing on Kumar's applications. Kumar moved to continue the hearing so he would have 20 to 25 days for a video photographs, and other documents to arrive from India to support his asylum claim. The IJ denied his request for failure to show good cause for continuance.
The hearing proceeded. Kumar wished to testify on his own behalf so the IJ offered him the opportunity to provide a statement or answer questions. Kumar chose to be questioned. Through the IJ's questioning, Kumar explained that he feared returning to India because he believed the Bharatiya Janata Party ("BJP"), India's ruling political party would kill him if he returned to India.
The following was Kumar's testimony. He worked for another party, the Indian National Lok Dahl Party ("INDP"), and experienced attacks from the BJP as a result. The attacks began on July 13, 2018, when, as part of his role with the INDP, he was plastering posters in a village. Four members of the BJP approached him and told him to stop plastering the posters and leave the INDP. Kumar refused, but the members continued to attempt to persuade him by offering him the opportunity to sell illegal drugs. Kumar again refused, resulting in the members punching, kicking, and slapping him. He screamed, which caused people in nearby houses to come investigate. The BJP members ran off once they saw people arrive but threatened Kumar before they left that if he did not leave the INDP, it "would not be good for [him]."
Kumar left the village and returned to his house. He described his injuries as "minor," consisting of swelling, and stated he treated his injuries with at-home pain medication. He and his uncle attempted to report the attack to the police, but the police refused to file a report. They told him that they would not report the party because it was the current government and if he persisted, they would "arrest [him] and put [him] in prison."
On October 5, 2018, the BJP attacked Kumar again when he was leaving an INDP blood donation event. He was biking home from the event when a vehicle approached and a person signaled for him to stop. He stopped, and four people exited the car holding hockey sticks and other wooden sticks. They beat him with the sticks and told him that they "warned [him] previously" to leave the party, but he did not listen. His screams caused nearby farmers to come to the scene. The attackers left once they saw the farmers. They warned: "[w]e came to finish you off . . . [w]hen we get hold of you again, we'll make sure you're dead." Kumar went to the hospital for three days for treatment of his injuries. He then moved to his uncle's house for four to five days before leaving that same month for the United States out of fear of future attacks.
The IJ made an adverse credibility determination against Kumar and denied Kumar's claims for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT") on the merits. Kumar timely filed his notice of appeal of the IJ's decision to the Board of Immigration Appeals ("BIA"). In his brief to the BIA, he also moved for a remand to the IJ because he now possessed the previously unavailable evidence for which he had sought a continuance, including a new personal declaration, a medical evaluation, affidavits from other INDP members, and photographs of his injuries. The BIA initially mistakenly dismissed his appeal for failure to file an appellate brief. Kumar filed a motion for reconsideration on this issue. The BIA reconsidered his appeal but ultimately denied his applications for asylum, withholding of removal, and CAT protection on the merits, and also denied his motion to remand.
Kumar petitioned this court for review.
We review the BIA's factual findings for substantial evidence and rulings on questions of law de novo. Mireles-Valdez v. Ashcroft, 349 F.3d 213, 215 (5th Cir. 2003) (citation omitted). "Under substantial evidence review, we may not reverse the BIA's factual determinations unless we find not only that the evidence supports a contrary conclusion, but that the evidence compels it." Chun v. INS, 40 F.3d 76 78 (5th Cir. 1994) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992)). It is the petitioner's burden to show that "the evidence is so compelling that no reasonable factfinder could reach a contrary conclusion." Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006).
Before proceeding with such review, though, we must satisfy ourselves of our jurisdiction even if neither party raises the question. Goonsuwan v. Ashcroft, 252 F.3d 383, 385 (5th Cir. 2001). We only have jurisdiction over a petition for review from the BIA if the alien has "exhausted all administrative remedies available to the alien as of right." 8 U.S.C. § 1252(d). A remedy is available to the alien as of right when "(1) the petitioner could have argued the claim before the BIA, and (2) the BIA has adequate mechanisms to address and remedy such claim." Omari v. Holder, 562 F.3d 314, 318-19 (5th Cir. 2009). This means the petitioner "must raise, present, or mention an issue to the BIA," putting the BIA on notice of his claim before raising it in this court. Id. at 321-22 (quotation marks and citations omitted).
The petitioner may put the BIA on notice either in his brief on appeal to the BIA or in a motion to reconsider. Martinez-Guevara v. Garland, 27 F.4th 353, 360 (5th Cir. 2022). If the petitioner's claim "alleg[es] some new defect that the BIA never had a chance to consider" because it is based on "a wholly new ground for relief that arises only as a consequence of the Board's error," Section 1252(d) requires the petitioner to present the claim to the BIA in a motion for reconsideration before seeking this court's review. Id. at 360 (quotation marks, citations, and emphasis omitted). Examples of a claim in this category include allegations that the BIA misapplied the standard of review or engaged in impermissible factfinding. Avelar-Oliva v. Barr, 954 F.3d 757, 766 (5th Cir. 2020). The chief inquiry in making this determination is "whether the Board had a chance to consider it," regardless of whether it actually decided or considered the issue. Martinez-Guevara, 27 F.4th at 360.
Kumar challenges the BIA's denial of his applications for asylum, withholding of removal, and protection under CAT both substantively and procedurally. Substantively, he argues the BIA erroneously concluded that he did not suffer past persecution, could relocate to another part of India, and was not entitled to CAT relief. These substantive claims are exhausted because they were not created by the proceedings before the BIA. See Dale v. Holder, 610 F.3d 294, 300 (5th Cir. 2010). Rather, they address errors that were "raised or lost at the BIA" and focus on answers to issues he previously raised - for instance, whether he is eligible for asylum. Martinez-Guevara, 27 F.4th at 360.
Kumar raised these substantive claims before the BIA, exhausting them and allowing us to address their merits. His other substantive challenge relates to the BIA's denial of his motion to remand. He argues that the BIA erred in concluding that the new evidence he presented would not have changed the outcome of his case. This, too, is a substantive argument "raised or lost at the BIA." Id. It is also exhausted.
On the other hand, we next discuss that only some of Kumar's procedural arguments are exhausted.
We first consider which of Kumar's procedural claims are properly before us. For those that are, we evaluate the claims in the subsequent section of our opinion.
The BIA concluded that Kumar was ineligible for asylum because the harm he endured was not severe enough to constitute past persecution. Further, the BIA determined he did not have a well-founded fear of future persecution because he could reasonably...
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