Singh v. Barr
| Decision Date | 19 June 2020 |
| Docket Number | No. 19-60150,19-60150 |
| Parties | BIKRAMJIT SINGH, also known as Bikram Thapa, Petitioner, v. WILLIAM P. BARR, U. S. ATTORNEY GENERAL, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Petition for Review of the Order of the Board of Immigration Appeals
BIA No. A208 564 791
Before SMITH, HO, and OLDHAM, Circuit Judges.
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Bikramjit Singh petitions for review of a Board of Immigration Appeals ("BIA") order affirming the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). Singh claims his application should have been granted because he was beaten up by rival political party members in India. We deny his petition.
Singh is a Sikh. He lived in the Punjab State of India. While in India, Singh joined the Mann Party, a political party that "works for the Sikh people"and advocates for an autonomous Sikh state of Khalistan. As a Mann Party member, Singh served food, set up chairs at events, collected funds, and put up party posters.
One day he was hanging up posters when members of the Badal Party—a political party in coalition with the governing Bharatiya Janata Party ("BJP")—told him to stop. Singh refused, so the Badal Party members beat him with a wooden stick until he lost consciousness. He was brought home, and a village doctor saw him. He had swelling in his shoulder and the back of his legs for five to six days. He took pain medication and soon recovered.
A couple of months later, Singh says he was again beaten up by Badal Party members. They demanded he leave the Mann Party and threatened to kill him if he did not stop working for the party. Singh again went to a local doctor and received pain medicine. He was not "hurt . . . that much" from this attack, and the swelling in his head and legs subsided after three to four days. Following this attack, Singh stayed with a family friend in a nearby village for forty-five to fifty days with no incident.
Singh arrived in the United States without valid documentation. The government commenced removal proceedings. Conceding his removability, Singh applied for asylum, withholding of removal, and CAT protection.
The Immigration Judge ("IJ") found Singh to be a credible witness and took Singh's testimony to be true. Even so, the IJ denied his asylum application. Although "reprehensible," the two beatings by the Badal Party members "d[id] not rise to the level of harm requisite for [past] persecution." Further, Singh could not show a well-founded fear of future persecution because his family had remained in his village with no incidents and there was no evidence that Singh could not relocate to another part of India. Because Singh fell short on his asylum claim, the IJ denied withholding of removal andhis request for CAT protection. The BIA affirmed on substantially the same grounds.
We review the BIA's order (and the IJ's to the extent it informed the BIA) for substantial evidence. Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006); Masih v. Mukasey, 536 F.3d 370, 373 (5th Cir. 2008). Under the substantial-evidence standard, we will only grant the petition for review when the record evidence "compels" a conclusion contrary to the BIA's. Chen, 470 F.3d at 1134 (quotation omitted). "The applicant has the burden of showing that the evidence is so compelling that no reasonable factfinder could reach a contrary conclusion." Id. Our review is thus a "deferential" one: "[W]e cannot reverse the BIA simply because we disagree with the BIA's apprehension of the facts." Silwany-Rodriguez v. I.N.S., 975 F.2d 1157, 1160 (5th Cir. 1992).
Asylum is discretionary relief available to "refugees." 8 U.S.C. § 1158(b)(1)(B)(i). The statute defines a "refugee" as "any person . . . who is unable or unwilling to return to . . . [his or her home] country because of persecution or a well-founded fear of persecution on account of [a protected ground]." 8 U.S.C. § 1101(a)(42)(A). Thus, to be eligible for asylum, Singh needed to prove he suffered past persecution or had a well-founded fear of future persecution. 8 C.F.R. § 208.13(b). And even if Singh had been "classified as a refugee on [that] basis," he is "not automatically entitle[d] . . . to asylum." Chen, 470 F.3d at 1135. Rather, the Government retains discretion to grant asylum to eligible refugees. See id.; 8 U.S.C. § 1252(b)(4)(D) ().
"Persecution" for purposes of asylum "is an extreme concept." Arif v. Mukasey, 509 F.3d 677, 680 (5th Cir. 2007) (quoting Fatin v. I.N.S., 12 F.3d 1233, 1243 (3d Cir. 1993)). It "does not include every sort of treatment oursociety regards as offensive." Id. Nor does persecution "encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional." Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006) (quotation omitted). The harm suffered by an applicant "must be extreme conduct to qualify for asylum protection." Id. (quotation omitted; emphasis added).
While we do not minimalize the harm that Singh alleged, the Board had substantial evidence to find these incidents did not rise to the "extreme" level of past persecution. Two recent decisions are persuasive. In Singh v. Whitaker, 751 F. App'x 565 (5th Cir. 2019) (per curiam), we assessed the asylum claim of Jashanpreet Singh, also a member of the Mann Party. Id. at 567. He also claimed two attacks from another political party, the BJP. In the first attack, he was slapped and threatened by three BJP members. Id. In the second, he was beaten by four BJP members for five or six minutes. Id. His injuries did not require hospitalization, he was treated with pain medication and ointment from a village doctor, and he healed in about a week. Id. We held that the BIA had substantial evidence to find that those two beatings were not such "extreme conduct" so as to constitute persecution. Id.
The Ninth Circuit reached a similar conclusion in Gill v. Barr, 765 F. App'x 225 (9th Cir. 2019) (per curiam). That case involved Taljinder Singh, who also was a member of the Mann Party. He also claimed that he was attacked twice by another political party, the Congress Party. The first time, the "Congress Party members stopped Singh's motorbike, pushed him, punched him, and threatened to kill him if he continued supporting the Mann Party." Id. at 225. The "following year he was again severely beaten and threatened by Congress Party members." Id. These facts did not compel a finding of past persecution either because the attacks were separated by a year and Singh "did not require significant medical attention." Id. at 226. The "use of force in [his]case was not so extreme as to necessarily rise to the level of past persecution." Id.
Our conclusion follows from the requirements of our substantial-evidence review, see Silwany-Rodriguez, 975 F.2d at 1160, and the decisions in Singh and Gill. Here, as in those cases, "[t]he evidence does not compel the conclusion that Singh suffered mistreatment rising to the level of [past] persecution." Singh, 751 F. App'x at 567 (emphasis added); see also Silwany-Rodriguez, 975 F.2d at 1160 (). And while Singh argues that his case is different because he once lost consciousness, he points to no "permanent physical injury" or "hospitalization" that we've previously considered to be indicative of past persecution. Majd, 446 F.3d at 596; Shufang Li v. Holder, 579 F. App'x 225, 226 (5th Cir. 2012).
Next, Singh argues the BIA lacked substantial evidence in rejecting his well-founded fear of future persecution. He says the BIA should not have relied on the fact that his family still lives safely in his village. But we've previously said a family's continued presence suggests an applicant's fear of future persecution is not well-founded, especially when that fear is from a national entity such as a political party. See Eduard, 379 F.3d at 193 (). Here too the BIA had...
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