UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JASWINDER SINGH, 

 Petitioner, 

v. 

MERRICK B. GARLAND, 

United States Attorney General, 

 Respondent. 

No. 21-9553 

(Petition for Review) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before PHILLIPS, BALDOCK, and EID, Circuit Judges. 

_________________________________ 

 Jaswinder Singh, a native and citizen of India, petitions for review of a 

decision by the Board of Immigration Appeals (Board or BIA) affirming the denial of 

his applications for asylum, withholding of removal, and relief under the Convention 

Against Torture (CAT). Exercising jurisdiction under 8 U.S.C. § 1252(a), we deny 

the petition. 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 15, 2022

Christopher M. Wolpert 

Clerk of Court

Appellate Case: 21-9553 Document: 010110657084 Date Filed: 03/15/2022 Page: 1
2 

BACKGROUND 

I. Underlying Facts

 Mr. Singh, a Sikh, is from the Indian state of Punjab and a member of the 

Shiromani Akali Dal or Akali Dal Mann party (the Mann party). The Aklai Dal 

Badal party (the Badal party) controlled the government. 

 While Mr. Singh and another man were hanging posters for the Mann party, 

they were approached by four or five men who identified themselves as members of 

the Badal party. The men had regular clothes on, with their faces covered. They told 

Mr. Singh and his companion to stop hanging the posters. Although the other man 

was able to run away, the Badal party members threw Mr. Singh to the ground and 

punched and kicked him. One kick came near his eye. He was close to passing out, 

but he regained his senses and some boys helped him home. He did not go to a 

hospital because he was afraid of the Badal party. Instead he stayed for ten to twelve 

days with his grandmother, who treated him with traditional remedies, including 

putting turmeric on some of his wounds and using hot and cold treatments. 

Mr. Singh did not have any broken bones, but he experienced pain from his injuries, 

including pain in his eye area. 

 A couple of days after the attack, Mr. Singh went to a shop for some medicines 

for pain and trouble sleeping. He later took more pills for the pain, but he never had 

any other medical treatment. At one point he also went to file a police report, but the 

police would not take his report and gave him the impression that they did not care 

about the attack. Mr. Singh left India about two months after the beating. His wife 

Appellate Case: 21-9553 Document: 010110657084 Date Filed: 03/15/2022 Page: 2
3 

and parents, who remained in India, have told him that people have come to inquire 

about him. 

II. Legal Standards 

 For asylum, a petitioner must establish he is a refugee. See 8 U.S.C. 

§ 1158(b)(1)(A). A refugee is a person who is “unable or unwilling to return to the 

country of origin ‘because of persecution or a well-founded fear of persecution on 

account of race, religion, nationality, membership in a particular social group, or 

political opinion.’” Rivera-Barrientos v. Holder, 666 F.3d 641, 645-46 (10th Cir. 

2012) (quoting 8 U.S.C. § 1101(a)(42)(A)) (emphasis omitted). “Persecution is the 

infliction of suffering or harm upon those who differ (in race, religion, or political 

opinion) in a way regarded as offensive and must entail more than just restrictions or 

threats to life and liberty.” Ritonga v. Holder, 633 F.3d 971, 975 (10th Cir. 2011) 

(internal quotation marks omitted). “[P]ersecution may be inflicted by the 

government itself, or by a non-governmental group that the government is unwilling 

or unable to control.” Id. (quotations omitted). 

 The standard for withholding of removal is “more stringent” than that for 

asylum. Zhi Wei Pang v. Holder, 665 F.3d 1226, 1233 (10th Cir. 2012). “To be 

eligible for withholding of removal, an applicant must demonstrate that there is a 

clear probability of persecution because of his race, religion, nationality, membership 

in a particular social group, or political opinion.” Id. (internal quotation marks 

omitted). And “[t]o be eligible for relief under the CAT, an individual must establish 

that it is more likely than not that he or she would be tortured if removed to the 

Appellate Case: 21-9553 Document: 010110657084 Date Filed: 03/15/2022 Page: 3
4 

proposed country of removal.” Id. at 1233-34 (quotations omitted). Such torture 

must be by a government official or with governmental consent or acquiescence. 

See 8 C.F.R. § 1208.18(a)(1). 

III. Agency Proceedings 

 Mr. Singh’s Notice to Appear (NTA) had not specified the date and time of his 

hearing, but a second notice provided that information. The immigration judge (IJ) 

rejected Mr. Singh’s contention that the immigration court lacked jurisdiction to 

conduct the proceedings because of the defective NTA. He found Mr. Singh to be “a 

generally credible witness” and assigned “full evidentiary weight” to his testimony. 

Admin. R., Vol. 1 at 87. But he denied the applications for asylum and withholding 

of removal, finding that the incident and injuries Mr. Singh described did not rise to 

the level of persecution and did not involve government actors, placing on him the 

burden to show that it would be unreasonable for him to relocate within India. The IJ 

further held that he had not satisfied that burden. As for the CAT, the IJ found that 

Mr. Singh had failed to show the attack rose to the level of torture or involved a 

governmental official or governmental acquiescence. He also found that Mr. Singh 

could relocate within India to avoid fear of torture. 

 The Board rejected Mr. Singh’s contention that the IJ lacked jurisdiction to 

conduct the proceedings because the NTA was defective. It upheld the IJ’s findings 

that Mr. Singh failed to show past persecution or a well-founded fear of future 

persecution, holding that the attack in India did not rise to the level of persecution; 

the IJ did not clearly err in finding the attackers were private actors; and the IJ 

Appellate Case: 21-9553 Document: 010110657084 Date Filed: 03/15/2022 Page: 4
5 

committed no legal or clear factual error in determining that Mr. Singh could relocate 

within India. The Board therefore upheld the denial of asylum and withholding of 

removal. Further, it held that Mr. Singh had waived his CAT claims by failing to 

brief them on appeal. 

DISCUSSION 

I. Standards of Review 

 “Because a three-member panel issued the BIA’s opinion, we review that 

opinion rather than the IJ’s oral decision.” Kabba v. Mukasey, 530 F.3d 1239, 1244 

(10th Cir. 2008). With regard to asylum and withholding of removal, we review 

legal questions de novo and findings of fact for substantial evidence. Id. And we 

review the denial of CAT relief for substantial evidence. Nasrallah v. Barr, 

140 S. Ct. 1683, 1692 (2020). Under the substantial-evidence standard, “[t]he 

agency’s ‘findings of fact are conclusive unless any reasonable adjudicator would be 

compelled to conclude to the contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). 

II. Notice to Appear 

 Mr. Singh asserts that because his NTA did not specify the date and time of 

the hearing, the IJ lacked jurisdiction to conduct his removal proceeding. This court, 

however, has held that a defective NTA does not present a jurisdictional issue. 

See Martinez-Perez v. Barr, 947 F.3d 1273, 1278 (10th Cir. 2020); Lopez-Munoz v. 

Barr, 941 F.3d 1013, 1015-18 (10th Cir. 2019). 

 One panel of this court is bound by the decisions of other panels absent an 

intervening Supreme Court or en banc decision. See Ting Xue v. Lynch, 846 F.3d 

Appellate Case: 21-9553 Document: 010110657084 Date Filed: 03/15/2022 Page: 5
6 

1099, 1104 (10th Cir. 2017). The only potentially relevant decision that Mr. Singh 

identifies is Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). But Niz-Chavez

addressed the effect of a defective NTA on the stop-time rule for cancellation of 

removal, not the agency’s jurisdiction. See id. at 1478-79. We therefore cannot 

conclude that it overruled Martinez-Perez and Lopez-Munoz. See, e.g., Chery v. 

Garland, 16 F.4th 980, 987 (2d Cir. 2021); Ramos Rafael v. Garland, 15 F.4th 797, 

800-01 (6th Cir. 2021). 

 To the extent that Mr. Singh is arguing that the agency failed to comply with a 

properly invoked claims-processing rule, he did not make that argument before the 

Board, see Admin. R., Vol. 1 at 34-36, and therefore we lack jurisdiction to consider 

it, see Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010). 

III. Asylum 

 A. Due Process 

 Mr. Singh first argues that the Board violated his right to due process because 

it did not adequately consider the evidence in the record. He complains that the 

Board referred only to certain exhibits, and he asserts that he “had a right to an 

analysis of the supporting documents including current event articles submitted.” 

Pet’r Opening Br. at 14. But “a quarrel about the level of detail required in the BIA’s 

analysis does not implicate due process.” Birhanu v. Wilkinson, 990 F.3d 1242, 1252 

(10th Cir. 2021) (internal quotation marks omitted). “The BIA is not required to 

write an exegesis on every contention. What is required is that it consider the issues 

raised, and announce its decision in terms sufficient to enable a reviewing court to 

Appellate Case: 21-9553 Document: 010110657084 Date Filed: 03/15/2022 Page: 6
7 

perceive that it has heard and thought and not merely reacted.” Maatougui v. Holder, 

738 F.3d 1230, 1242-43 (10th Cir. 2013) (brackets and internal quotation marks 

omitted). That standard was satisfied here. 

B. Past Persecution 

Mr. Singh next argues that the Board erred in determining the attack did not 

rise to the level of past persecution. Although he asserts this is a question of law 

reviewed de novo, see Pet’r Opening Br. at 15, in this circuit past persecution is a 

finding of fact that is reviewed only for substantial evidence, see Ritonga, 633 F.3d 

at 974. This standard is restrictive: “[t]he BIA’s determination that the applicant is 

not eligible for asylum must be upheld if supported by reasonable, substantial, and 

probative evidence on the record considered as a whole.” Yuk v. Ashcroft, 355 F.3d 

1222, 1233 (10th Cir. 2004) (brackets and internal quotation marks omitted). “We do 

not weigh the evidence or evaluate the witnesses’ credibility.” Id. (ellipsis and 

internal quotation marks omitted). 

 The record does not indicate that any reasonable adjudicator would be 

compelled to find past persecution. As the Board recognized, Mr. Singh was beaten, 

which resulted in a convalescence period and treatment with over-the-counter 

medications but not in hospitalization. And the Board acknowledged the testimony 

of Mr. Singh’s expert witness that he suffers from Post-Traumatic Stress Disorder 

(PTSD). But considering the attack cumulatively with the threats Mr. Singh 

received, the Board further cited caselaw from this court upholding a finding of no 

past persecution in circumstances similar to this case. See Ting Xue, 846 F.3d 

Appellate Case: 21-9553 Document: 010110657084 Date Filed: 03/15/2022 Page: 7
8 

at 1107; Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir. 2009). Moreover, other 

Tenth Circuit cases also have found no past persecution despite petitioners’ suffering 

injuries from beatings, even repeated beatings. See Sidabutar v. Gonzales, 503 F.3d 

1116, 1124 (10th Cir. 2007); Tulengkey v. Gonzales, 425 F.3d 1277, 1280-81 

(10th Cir. 2005); Kapcia v. INS, 944 F.2d 702, 704-05, 708 (10th Cir. 1991). 

 Mr. Singh argues that the Board did not properly consider his expert’s opinion, 

but this court cannot reweigh the evidence. See Yuk, 355 F.3d at 1233. He further 

complains that that the Board cited only the State Department country condition 

reports. But there is “nothing improper in [relying] on the State Department 

Reports,” and they constitute substantial evidence supporting the agency’s decision. 

Id. at 1235-36. And although Mr. Singh asserts that evidence in the record supports 

his position, that does not necessarily mean that the Board’s decision is not supported 

by substantial evidence. See id. at 1236. 

C. Government Actors 

 With regard to whether his attackers were government actors, Mr. Singh points 

out that the Board cited to a case that is no longer good law, Matter of A-B- (A-B- I), 

27 I. & N. Dec. 316 (A.G. 2018). After the Board’s decision in this case, the 

Attorney General clarified A-B- I, see Matter of A-B- (A-B- II), 28 I. & N. Dec. 199 

(A.G. 2021), and then subsequently vacated both A-B- I and A-B- II, see Matter of

A-B- (A-B- III), 28 I. & N. Dec. 307, 307 (A.G. 2021). But Mr. Singh makes only 

bare assertions that the overruling requires remand; he fails to show how it may have 

affected his case. Notably, the Board cited A-B- I as a “see also” cite after citing the 

Appellate Case: 21-9553 Document: 010110657084 Date Filed: 03/15/2022 Page: 8
9 

well-established (and unchanged) rule in this circuit that “the persecution must have 

been imposed by the government or by groups which the government is unwilling or 

unable to control,” Admin. R., Vol. 1 at 5 (internal quotation marks omitted). 

 Mr. Singh also disputes the IJ’s conclusion that the attackers were “rogue 

elements who support the [Badal] party,” id. at 90, asserting that the IJ misinterpreted 

the term “miscreant” in the documentary evidence, id. at 299, as being synonymous 

with “rogue,” when it is not. This argument essentially asks us to substitute our 

judgment for that of the agency, which we will not do. See Woldemeskel v. INS, 

257 F.3d 1185, 1189 (10th Cir. 2001). Mr. Singh’s position boils down to proposing 

that when a member of the same political party as the ruling government attacks a 

member of a rival party, the attack must be considered to be sponsored or condoned 

by the government. We disagree that a reasonable adjudicator would always be 

compelled reach that conclusion. 

 Mr. Singh further argues that the police’s refusal to take a report from him 

establishes that the government condoned and perhaps aided the attack. But again, 

this court’s review is for substantial evidence, not de novo, and we do not reweigh 

the evidence. The Board considered the fact that the police did not take Mr. Singh’s 

report, but was not persuaded by it. We cannot conclude that every reasonable 

adjudicator would be compelled to find government involvement in these 

circumstances. Cf. Granada-Rubio v. Lynch, 814 F.3d 35, 40 (1st Cir. 2016) 

(per curiam) (stating that petitioner’s testimony that the police sometimes did not 

help was insufficient to support a claim that the government acquiesced to torture).

Appellate Case: 21-9553 Document: 010110657084 Date Filed: 03/15/2022 Page: 9
10 

D. Future Persecution 

 Mr. Singh asserts that the Board improperly failed to afford him a presumption 

of future persecution and to shift the burden to the government to show that 

relocation was reasonable. See 8 C.F.R. § 208.13(b)(1). But the presumption of 

future persecution rests on a finding of past persecution, see id., which did not exist 

here. Further, the finding that his attackers were not governmental actors means that 

he retained the burden regarding relocation. See Tulengkey, 425 F.3d at 1281. 

 Mr. Singh further objects to the Board’s conclusion that he could avoid 

persecution by relocating within India, and that such relocation would be reasonable. 

He equates this determination with “the idea that petitioner could abandon his 

adherence to the Akali Dal Mann party and his advocacy for a separate state, 

Khalistan,” because “relocation outside of the Punjab would make it impossible for 

[him] to engage in his political—religious advocacy.” Pet’r Opening Br. at 26. We 

are not convinced, however, that relocation would require him to relinquish his 

political beliefs. The constitution of the Mann party, which is part of the 

administrative record, explicitly provides for members outside of Punjab. 

IV. Withholding of Removal 

 Because Mr. Singh fails to satisfy the burden of proof for asylum, he also 

necessarily fails to satisfy the higher standard for withholding of removal. See Zhi 

Wei Pang, 665 F.3d at 1233. 

Appellate Case: 21-9553 Document: 010110657084 Date Filed: 03/15/2022 Page: 10
11 

V. Relief under the CAT 

 Mr. Singh argues that the CAT does not require him to show it is impossible to 

avoid torture by relocating. But he did not make this argument before the Board. 

See Admin. R. at 3 n.1 (deeming CAT issues waived because Mr. Singh had “not 

meaningfully challenged [the] denial [of CAT relief]”). In the context of a CAT 

claim, failure to exhaust administrative remedies does not divest us of jurisdiction. 

See 8 U.S.C. § 1252(d)(1) (requiring exhaustion of remedies with regard to “a final 

order of removal”); Nasrallah, 140 S. Ct. at 1691, 1694 (recognizing that an order 

denying CAT relief is not “a final order of removal”). Even without a jurisdictional 

bar, however, our general rule is that we do not entertain arguments for reversing an 

agency decision that are raised for the first time in this court. See Garcia-Carbajal, 

625 F.3d at 1237. Mr. Singh gives us no reason to disregard that rule here. 

CONCLUSION 

 The petition for review is denied. 

Entered for the Court 

Bobby R. Baldock 

Circuit Judge 

Appellate Case: 21-9553 Document: 010110657084 Date Filed: 03/15/2022 Page: 11