20

- 1673

- ag Singh Bhagtana v. Garland



## In the 1 

# United States Court of Appeals 2 

## for the Second Circuit 3

4

5

6

A UGUST T ERM 20 23 7

8

No. 20

- 1673

- ag 9

10

B ALJINDER S INGH B HAGTANA

, 11

Petitioner

, 12

13

v. 14

15

M ERRICK B. G ARLAND

, U NITED S TATES A TTORNEY G ENERAL

, 16 Respondent

. 17

18

19 On Appeal from the Board of Immigration Appeals 20

21

22

A RGUED : S EPTEMBER 7

, 20 23 23

D ECIDED : D E C E M B E R 5

, 20 23 24

25

26

Before: L IVINGSTON

, Chief Judge

, C ABRANES

, and K A H N
, Circuit Judges

. 27

282 This case presents the question of whether the Government 1
rebutted the presumption of future persecution in an asylum case by 2
establishing that P etitioner could safely relocate within his home 3
country of India

. Petitioner Singh Bhagtana claims that he was 4
persecuted by members of the Bharatiya Janata Party (“BJP”), the 5
governing party in India, because of his support for the Shiromani 6

Akali Dal Amritsar or “ Mann ” Party, and because he is Sikh. He 7
claims that he was attacked by BJP members on three occasions, which 8
led him to relocate to other parts of India: first Patiala, then Gurgaon

. 9
Singh Bhagtana alleges that, although he was free from harm in those 10

two towns , it was because he was living in hiding. 11

Both the Immigration Judge and the Board of Immigration Appeals 12

found that Singh Bhagtana ’s contention that he was living in hiding 13
was unpersuasive and that, therefore, the Government had 14
successfully rebutted the presumption of future persecution. We 15

agree. Singh Bhagtana ’s activities following relocation included 16
driving a taxicab and attending the Mann party’s meetings in a Sikh 17
Temple , which cast doubt on his allegation that he was in hiding. 18

Accordingly, the petition for review is DENIED . All pending 19
motions and applications are DENIED and stays VACATED

. 20

21

T HOMAS V INCENT M ASSUCCI , New York, NY 22

( Deepti Vithal

, on the brief )

, for Petitioner

. 233 S PENCER S HUCARD ( Brian Boynton, K e ith I. 1

McManus, John B. Holt

, on the brief )

, Office 2
of Immigration Litigation

, U nited S tates 3
Department of Justice, Washington, D.C.

, for 4
Respondent

. 5

6

J OS É A. C ABRANES

, Circuit Judge : 7

Petitioner Baljinder Singh Bhagtana (“Singh Bhagtana”) , a native 8
and citizen of India, seeks review of a May 8, 2020, decision of the 9
Board of Immigration Appeals (“BIA”) affirming a July 20, 2018, 10
decision of an Immigration Judge (“IJ”) denying his application for 11
asylum, withholding of removal, and protection under the Convention 12
against T orture (“CAT”). 13

The BIA and the IJ both held that Singh Bhagtana had not 14

established a well

- founded fear of persecution because he c ould avoid 15

future persecution by relocat ing to another part of India. The issue 16

before us , therefore, is whether the agency erred in finding that Singh 17
Bhagtana could safely relocate within India to avoid future 18
persecution or torture and that it would be reasonable for him to do 19

so. T he IJ found that Singh Bhagtana had been able to relocate within 20

India twice without incident and had be en free from harm in those 21

locations for many years. We agree and conclude that the agency did 22

not err

. Accordingly, we deny the petition for review

. All pending 23
motions and applications are denied and all stays are vacated

. 244 I. BACKGROUND 1

Singh Bhagtana seeks review of the order of the BIA and the 2

decision of the IJ denying his application for asylum, withholding of 3

removal and relief under the CAT. 4

Singh Bhagtana

, a native and citizen of India

, entered the United 5

States on August 7, 2015, without a valid entry document or a valid 6

immigrant visa. He was given a “ credible fear interview ” o n August 7

25, 2015

. 8

Singh Bhagtana claims that he was persecuted by members of the 9

Bharatiya Janata Party (“ BJP ”), the governing party in India, because 10

of his support for the Shiromani Akali Dal Amritsar (“Mann”) Party, 11

and because he is Sikh. He testified that he was attacked on three 12

occasions

— on December 29, 2008, April 11, 2012, and January 30, 13

2015

— by BJP members in the District of Kapu r thala

, in the state of 14

Punjab

. He further testified that , as a result of those attacks, he 15

suffered serious injuries, including long

- lasting back pain. 16

A fter the first attack in December 2008 , Si n gh Bhagtana relocated 17

to Patiala , a city

— also in Punjab

— where he lived for several years free 18

from harm

. In 2012, h e decided to permanently move back to 19

Kapu r thala but was attacked again shortly after his return

. In 2013, he 20

applied for a U.S. visa, which was denied. He then relocated for a few 215 years to Gurgaon

, near New Delhi and in the district of Haryana in 1

northern India

, where he safely worked as a taxicab driver

. Singh 2

Bhagtana again decided to permanently return to Kapu r thala and was 3

attacked in January 2015. Subsequently, he left India and travelled to 4

the United States

. 5

6

II. DISCUSSION 7

A. Applicable Law 8

9 “When the BIA issues an opinion, ‘the opinion becomes the basis 10

for judicial review of the decision of which the alien is complaining.’” 1 11

And w hen , as here, the decision of the BIA is consistent with the 12

decision of the IJ, we may consider both decisions “for the sake of 13

completeness

. . . . ” 2 14

We review the agency ’ s factual findings under the substantial 15

evidence standard. 3 Congress has specified that “the administrative 16

findings of fact are conclusive unless any reasonable adjudicator 17

1 Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005) (quoting Niam v. Ashcroft , 354 F.3d 652, 655 (7th Cir. 2004)).

2 Wangchuck v. D ep’t of Homeland Sec. , 448 F.3d 524, 528 (2d Cir. 2006).

3 See Gao v. U.S. Att ’ y Gen ., 400 F.3d 963, 964 (2d Cir. 2005) (per curiam)

.6 would be compelled to conclude to the contrary [

. ] ” 4 Additionally, we 1

have been repeatedly directed to give the IJ significant deference. 5 2

Accordingly, we “must defer to the factfinder ’ s findings based on 3

‘such relevant evidence as a reasonable mind might accept as adequate 4

to support a conclusion.’” 6 R eview “under the substantial evidence 5

standard is exceedingly narrow, and we will uphold the BIA ’ s decision 6

unless the petitioner demonstrates that the record evidence was so 7

compelling that no reasonable factfinder could fail to find him eligible 8

for relief

. . . . ” 7 W e review legal conclusions de novo. 8 9

4 8 U.S.C. § 1252 (b)(4)(B).

5 Garland v . Ming Dai , 141 S. Ct. 1669, 1677 (2021) ( “ [S] o long as the record contains contrary evidence of a kind and quality that a reasonable factfinder

could find sufficient, a reviewing court may not overturn the agency’s factual

determination

. ” (internal quotations marks omitted)) ; s ee also Xiu Xia Lin v. Mukasey , 534 F.3d 162, 16 7 (2d Cir. 2008) (per curiam) ; see generally Xiao Ji Chen v. U.S. Dep ’ t of Just ., 471 F.3d 315 (2d Cir. 2006)

.

6 Majidi v. Gonzales , 430 F.3d 77, 81 (2d Cir. 2005) (quoting Consol. Edison Co.

v. NLRB , 305 U.S. 197, 229 (1938)).

7 Mu Xiang Lin v. U.S. Dep’t of Just. , 432 F.3d 156, 159 (2d Cir. 2005) (internal citations, quotation marks, and alterations omitted).

8 Gallina v. Wilkinson , 988 F.3d 137, 142 (2d Cir. 2021).7 B. Analysis 1

2 In this matter, we consider whether the agency erred in finding that 3

Singh Bhagtana could safely and reasonably relocate within India. T he 4

agency presume d that Singh Bhagtana ha d suffered past persecution 5

in his home region, which shifted the burden to the Government to 6

rebut the presumption that Singh Bhagtana has a well

- founded fear of 7

future persecution on the same basis. 9 The Government can rebut this 8

presumption by establishing, “by a preponderance of the evidence,” 9

that the applicant can “avoid future persecution by relocating to 10

another part of the applicant’s country of nationality

. . ., and under all 11

the circumstances, it would be reasonable to expect the applicant to do 12

so.” 10 In determining whether internal relocation would be 13

reasonable, the IJ considers, among any other relevant factors, “ the 14

size of the country of nationality or last habitual residence, the 15

9 See 8 C.F.R. § 1208.13(b)(1).

10 Id . § 1208.13(b)(1)(i)(B), (ii) ; see also id. § 1208.16(b)(1)(i)( B ), (ii).8 geographic locus of the alleged persecution, [and] the size, 1

numerosity, and reach of the alleged persecutor .” 11 2

We hold that t he agency ’s finding that Singh Bhagtana could safely 3

relocate within India is supported by substantial evidence , and 4

conclude that it did not err in holding that Singh Bhagtana had 5

therefore not established a well

- founded fear of persecution

. First

, 6

Singh Bhagtana testified that he lived in two cities, one inside and one 7

outside of his home state of Punjab, for a total of five to six years 8

without harm despite continuing to support the Mann party. This 9

Court discerns no reason why he would not be able to relocate to those 10

places again and be free from harm, particularly as there is no legal 11

restriction on internal movement within India

. Although Singh 12

B h agtana contends that he was not harmed when he relocated to 13

Patiala and Gur ga on because he was “living in hiding,” the BIA found 14

this claim unpersuasive

. W e agree. Singh B h agtana supported the 15

Mann party , even when he was presumably in hiding : he testified th at 16

he showed up for party meetings and would regularly go to the Sikh 17

11 Id. § 1208.13(b)(3); see also id. § 1208.16(b)(3) (“[A]djudicators should

consider the totality of the relevant circumstances regarding an applicant ’ s

prospects for relocation, including the size of the country of nationality or last

habitual residence, the geographic locus of the alleged persecution, the size,

reach, or numerosity of the alleged persecutor.”).9 Temple to attend those meetings . He also dr ove a taxi to support his 1

family during his relocation in both cities. 2

Second , t he U .S. Department of State ’s 2016 Country Report on 3

Human Rights Practices in India , which Singh Bhagtana introduced in 4

support of his CAT claim, notes that security forces detained and 5

assaulted some political protestors but not that members of the Mann 6

party or Sikhs advocating for the creation of a sovereign Sikh state, 7

known as Khalistan

, were victims of such treatment. We have also 8

repeatedly recognized that Indian citizens such as Singh Bhagtana 9

“ [are] unlikely to face persecution for [their] Sikh beliefs and [their] 10

membership in [the Mann Party] ” and “ any threat faced by [such 11

applicant s ] in India is not country

- wide.” 12 12

Lastly, Singh Bhagtana’s ability to relocate within India is 13

dispositive of the claims of asylum, withholding of removal, and CAT 14

relief because safe relocation precludes a finding of an objectively 15

reasonable fear of future harm. 13 16

12 Singh v. BIA , 435 F.3d 216, 219 (2d Cir. 2006) ; s ee also Singh v. Garland , 11 F.4th 106, 118 (2d Cir. 2021).

13 See 8 C.F.R. §§ 1208.13(b), 1208.16(b), 1208.16(c)(3); Singh , 11 F.4th at 118; Lecaj v. Holder, 616 F.3d 111, 119

– 20 (2d Cir. 2010) (holding that where the record does not demonstrate chance of persecution required for asylum, it “necessarily fails to demonstrate” the likelihood of harm for withholding of removal and CAT relief).10 III. CONCLUSION 1

For the foregoing reasons, the petition for review is DENIED . All 2

pending motions and applications are DENIED and stays VACATED

. 3