NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-1088

___________

GURWINDER SINGH,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A098-495-545)

Immigration Judge: Honorable Dorothy Harbeck

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

on November 17, 2010

Before: BARRY, HARDIMAN and STAPLETON, Circuit Judges

(Opinion filed: November 30, 2010)

___________

OPINION

___________

PER CURIAM

Gurwinder Singh petitions for review of the order of the Board of Immigration

Appeals (“BIA” or “Board”) dismissing his appeal of the Immigration Judge’s (“IJ”) final 
removal order. We will deny the petition.

I.

Singh, a native and citizen of India, entered the United States in 2003 and was 

subsequently placed in removal proceedings for having entered without being admitted or 

paroled. He conceded removability and applied for asylum, withholding of removal, and 

relief under the Convention Against Torture (“CAT”) based on his experiences as a Sikh 

in India.

1

At his January 2008 merits hearing, Singh testified before the IJ that he is 

originally from Punjab province and that he is a follower of the Sikh religion. In 

addition, Singh claimed that he is a follower of the Khalistan Movement, a Sikh separatist 

movement. His asylum application also indicated that he is a member of the Akali Dal 

Mann party.

Singh testified that, on three separate occasions while in India, he was subjected to

persecution because of his religion. Singh testified that, in 1994, he was arrested and 

detained at Temple and taken into custody. While in custody, he was questioned about 

his affiliation with the Sikh movement. In 1998, he claimed that he was arrested and 

detained by police at his home. While at the police station, he was beaten all over his 

 

1

 In his opening brief, Singh explains that he did not, in fact, apply for asylum, only 

withholding of removal and CAT relief. (Pet. Br. at 9-10.) However, the 

administrative record (“A.R.”) shows that Singh filed an application seeking all three 

types of relief, (A.R. 395-410), and he does not point to any portion of the record 

demonstrating that he withdrew the application for asylum.
body and accused of being a terrorist. Although he was released when members of his 

village vouched for his peacefulness, he required medical treatment for his injuries. 

Finally, in December 2002, Singh testified that police arrested him at his home. He was 

beaten and burned in a nearby field and subjected to the same at the police station. After 

paying a bribe, he was released. Singh’s brother provided an affidavit verifying the 

incident. 

Singh testified that he left India four months after the final incident because he 

was concerned about his safety. Singh also testified about the likely persecution he faces 

if returned to India. According to Singh, although several years have passed since he left 

the country, the police in Punjab still seek to harm him. He also claimed that his wife and 

brother, who remain in the country, have told him that the police still question them about 

his whereabouts. However, he did not present affidavits from his wife or brother

attesting to that fact. At the merits hearing, the Government argued that conditions in 

India have improved for Sikhs since Singh left the country such that he is unlikely to face 

persecution because of his religion upon his return.

Following the merits hearing, the IJ denied Singh’s applications for relief. The IJ 

denied Singh’s asylum application as time-barred and his applications for withholding of 

removal and CAT relief on substantive grounds. Although the IJ found that Singh 

testified credibly that he suffered past persecution, she concluded that the Government 

presented significant evidence of changed country conditions rebutting the presumption 

that he will be persecuted upon his return to India. The IJ also determined that there was 
an absence of record evidence supporting Singh’s claim that it is more likely than not that 

he would subject to torture upon his return.

On appeal, the BIA affirmed the IJ’s ruling, including her finding that Singh’s 

asylum application was time-barred. The Board also affirmed the IJ’s credibility 

determination as well as her finding that Singh suffered past persecution. However, the 

Board determined that the IJ appropriately concluded that it is unlikely that Singh will be 

persecuted upon his return to India and thus, he did not qualify for withholding of 

removal. Lastly, the Board affirmed the IJ’s CAT ruling. Singh timely appealed the 

BIA’s determination.

II

We have jurisdiction pursuant to 8 U.S.C. § 1252(a).

2

 “[W]hen the BIA both 

adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we 

have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 

376 F.3d 215, 222 (3d Cir. 2004). We review the agency’s factual determinations for 

substantial evidence, and will uphold such determinations “unless the evidence not only

supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d 150, 155 

(3d Cir. 2005) (internal citations omitted). 

 

2

 We do not have jurisdiction to review the BIA’s ruling that Singh’s application 

for asylum was time-barred. 8 U.S.C. §1158(a)(3); Sukwanputra v. Gonzales, 434 

F.3d 627, 635 (3d Cir. 2006). As mentioned, Singh argues that he did not apply for 

asylum, only withholding for removal and CAT relief. The discrepancy does not 

matter for purposes of our review. Because we cannot review the denial of asylum 

for the reason that the BIA determined that it was untimely filed, it makes no 

difference, at this point, whether Singh actually sought such relief. We will review 
Withholding for removal is available under INA § 241(b)(3). To be entitled to 

statutory withholding of removal, an alien must prove that it is more likely than not he 

will be persecuted upon his return to the proposed country of removal. See GomezZuluaga v. Att’y Gen., 527 F.3d 330, 348 (3d Cir. 2008). To meet this standard, the alien

is required to establish (1) past persecution, which creates a rebuttable presumption of 

future persecution, or (2) a likelihood of future persecution. See 8 C.F.R. § 208.16(b). A 

presumption of future persecution may be rebutted by evidence demonstrating a 

fundamental change in country conditions. See 8 C.F.R. § 1208.16(b)(1)(i). To obtain 

CAT relief, an alien is required to demonstrate that it is more likely than not he will be 

tortured if removed to the proposed country of removal. See 8 C.F.R. § 208.16(c)(2).

Singh raises the following arguments in his petition for review: (1) the record does 

not establish changed country conditions and the IJ failed to appreciate the “entirety of 

the 2006 Country Report on Human Rights Practices”; (2) the IJ erroneously concluded 

that country conditions had changed based upon a purported change in India’s political 

power structure; and (3) the IJ misapprehended the difference between two political 

parties and erroneously concluded that Singh’s political party was represented in the

People’s Assembly. (Pet. Br. at 11-13.)

We note that Singh benefitted from the rebuttable presumption of a well-founded 

fear of future persecution. 8 C.F.R. § 208.16(b)(1)(i). This was so because he presented 

credible evidence establishing past persecution before the IJ. Therefore, we must 

 

only the BIA’s denial of withholding of removal and CAT relief. 
determine whether the record compels reversal of the Board’s affirmation of the IJ’s 

ruling that evidence of changed country conditions rebutted the presumption. 

The IJ and BIA reviewed a significant number of reports and articles describing 

changed circumstances for Sikhs in India. (A.R. 3-4, 66-67.) Although Singh argues that 

the IJ and BIA failed to “appreciate” the entirety of the U.S. Department of State’s 2006 

Report on Human Rights Practices for India, the record suggests otherwise. Indeed, the 

Board specifically noted that, with regard to human rights abuses, while the Report 

indicates that “government officials continue to use excess force in Jammu and Kashmir 

and several other northeastern states, [it] does not indicate that there is any continuing 

conflict in Punjab.” (A.R. 3, 310-11.) The Board also noted that in the section of the 

Report discussing freedom of religion, there is no suggestion that there has been any 

recent harm perpetrated against Sikhs in Punjab. (A.R. 315-16.) The IJ and BIA cited 

other reports in the record supporting the Government’s position. For example, they 

reviewed the U.S. Department of State’s 2006 International Religious Freedom Report 

for India which indicated that, although many of those who were involved in anti-Sikh 

violence in the 1980s and 1990s have not been prosecuted for their actions, there have not 

been any significant recent acts of violence perpetrated against Sikhs. (A.R. 3, 66-67, 

277-97.) 

We also find Singh’s second argument unconvincing. Singh argued that the IJ 

improperly concluded that having a Sikh Prime Minister is significant to the current 

plight of Sikhs in India. Singh does not cite any record evidence supporting his
contention that this particular change in political power is insignificant. Indeed, the 

current prime minister, Dr. Manmohan Singh, a Sikh from Punjab, was sworn into office

more than a year after Singh departed India, thus supporting, at least in part, the IJ’s 

conclusion that conditions have improved for Sikhs as a result of this political change. 

(A.R. 66, 273.) 

Singh also fails to adequately support his final argument. He claims that the IJ 

misapprehended the difference between the Akali Dal Mann party, of which he is a part, 

and the Shiromani Akali Dal (“SAD”) party. In her opinion, the IJ noted that the Central 

Intelligence Agency World Factbook for India indicates that eight percent of the People’s 

Assembly is represented by the SAD party. (A.R. 66, 273.) Singh argues that the parties 

are not the same and that members of the Akali Dal Mann lack representation in the 

Assembly. However, he provides absolutely no analysis of the differences in the parties. 

Regardless of the asserted distinction, Singh does not dispute that a Sikh political party is 

now represented in the Assembly and that this political development evidences a change 

in conditions for Sikhs. Moreover, to the extent that the IJ erred in making this finding, 

we determine that the error is not significant enough to require reversal.

Accordingly, we conclude that substantial evidence in the record supports the 

agency’s determination that the Government rebutted the presumption of future 

persecution. We further conclude that Singh has not shown that the record compels 

vacating the BIA’s ruling on his CAT claim. We agree with the Board that Singh has not 

established that it is “more likely than not that that he will be tortured upon return to 
India.” (A.R. 4.)

We will deny the petition for review.