United States Court of Appeals

for the Fifth Circuit

No. 20-60120

Gurbhej Singh, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A201 686 535

Before Dennis and Engelhardt, Circuit Judges, and Hicks, Chief

District Judge.*

Per Curiam:†

Gurbhej Singh, a native and citizen of India, petitions for review of the 

order of the Board of Immigration Appeals (BIA) dismissing his appeal of the 

immigration judge’s denial of his applications for asylum, withholding of 

* Chief Judge of the Western District of Louisiana, sitting by designation.

† Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 4, 2021

Lyle W. Cayce

Clerk

Case: 20-60120 Document: 00515888366 Page: 1 Date Filed: 06/04/2021
No. 20-60120

2

removal, and relief under the United Nations Convention Against Torture 

(CAT). He also seeks, for the first time in any forum, a discretionary grant 

of humanitarian asylum. We lack jurisdiction to consider Singh’s 

unexhausted request for humanitarian asylum.1

 See Roy v. Ashcroft, 389 F.3d 

132, 137 (5th Cir. 2004). In all other respects, we deny the petition for review.

Singh fails to show that the BIA’s decision to deny his asylum 

application was unsupported by substantial evidence. See Zhang v. Gonzales, 

432 F.3d 339, 344 (5th Cir. 2005); Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 

(5th Cir. 2001). Neither the beatings and taunting Singh received at the 

hands of Congress Party adherents nor his prolonged detention by local 

police rise to the level that the BIA’s finding of no past persecution was so 

contrary to the evidence as to be untenable. See, e.g., Eduard v. Ashcroft, 379 

F.3d 182, 187-88 (5th Cir. 2004); Tesfamichael v. Gonzales, 469 F.3d 109, 117 

(5th Cir. 2006). Nor did Singh establish a likelihood of future persecution if 

removed to India. See Tesfamichael, 469 F.3d at 113. Specifically, by 

inadequately briefing the issue, Singh abandoned any argument that the 

Board’s finding that he could safely relocate within India was error. See Mejia 

v. Whitaker, 913 F.3d 482, 490 (5th Cir. 2019). In any event, the record 

evidence does not compel a finding contrary to the BIA’s on the question of 

internal relocation. See Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 

2009).

1 An alien who lacks a well-founded fear of future persecution may nonetheless 

qualify for “humanitarian asylum” by demonstrating that, in light of the severity of past 

persecution he or she experienced, there are compelling reasons that the alien is unwilling 

or unable to return to his or her country of origin. Compare Shehu v. Gonzales, 443 F.3d 

435, 440 (5th Cir. 2006) (citing 8 C.F.R. § 208.13(b)(1)(iii)(A)) with Matter of Chen, 20 I. 

& N. Dec. 16, 19 (BIA 1989). This method of qualifying for asylum is distinguishable from 

the more common approach of establishing a likelihood that the alien will experience future 

persecution if removed, and Singh raised contentionsregarding only the latter option while 

arguing before the immigration judge and BIA.

Case: 20-60120 Document: 00515888366 Page: 2 Date Filed: 06/04/2021
No. 20-60120

3

Because he failed to meet the standard for asylum, Singh necessarily 

cannot meet the more stringent standard for obtaining withholding of 

removal. See Dayo v. Holder, 687 F.3d 653, 658-59 (5th Cir. 2012); Efe v. 

Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002). Regardless, Singh has failed to 

brief, and has therefore waived, the issue of withholding of removal. See 

Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).

Finally, with respect to his application for CAT relief, Singh points to 

no record evidence showing that the Indian government would acquiesce to 

any torture he would suffer if returned to India. See generally Chen v. 

Gonzales, 470 F.3d 1131, 1139 (5th Cir. 2006). Insofar as Singh relies largely 

on evidence of general country conditions to establish the likelihood of 

torture, “[g]eneralized country evidence tells us little about the likelihood 

state actors will torture any particular person.” Qorane v. Barr, 919 F.3d 904, 

911 (5th Cir. 2019). And to the extent Singh failed to show that the actions 

of local police constituted persecution, “[i]t follows a fortiori [that] they do 

not constitute torture.” Id. Singh fails to demonstrate error in the decision 

to deny CAT relief. See Chen, 470 F.3d at 1139; Zhang, 432 F.3d at 344.

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

Case: 20-60120 Document: 00515888366 Page: 3 Date Filed: 06/04/2021
No. 20-60120

4

James L. Dennis, Circuit Judge, specially concurring:

This case implicates an error in this circuit’s caselaw that I previously 

noted in Gjetani v. Barr, 968 F.3d 393, 400 (5th Cir. 2020) (Dennis, J., 

dissenting). Although the Immigration Judge (IJ) and Board of Immigration 

Appeals (BIA) found the petitioner Gurbhej Singh to be credible, they denied 

his application for asylum on the ground that the two attacks he endured as a 

result of his membership in the Shiromani Akali Dal Amritsar Mann political 

party were not severe enough to amount to persecution within the meaning 

of 8 U.S.C. § 1101(a)(42)(A). In accordance with the majority’s holding in 

Gjetani, 968 F.3d at 396-97 & n.2, the court today considers whether this 

ruling is supported by “substantial evidence,” a highly deferential standard 

of review that is normally reserved for the BIA’s factual determinations. See 

id. at 396 (quoting Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005)). But 

determining what Congress meant by the statutory term “persecution” and 

applying that standard to a set of undisputed facts “is a basic matter of 

statutory interpretation, which is a quintessential question of law.” Id. at 401 

(Dennis, J., dissenting) (internal quotes omitted); see also Guerrero-Lasprilla 

v. Barr, 140 S. Ct. 1062, 1068 (2020) (holding that “the application of a legal 

standard to undisputed or established facts” is a “question of law” within 

the meaning of the Immigration and Nationality Act).

Indeed, in instructing us to apply the substantial evidence standard to 

the BIA’s interpretation of “persecution,” our precedents mandate a 

nonsensical analysis. When reviewing for substantial evidence, we look to 

the record to determine whether “the evidence is so compelling that no 

reasonable factfinder could reach a contrary conclusion” on the matter. Chen 

v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). This makes sense when we 

are reviewing an actual factual finding; if the record contains transcripts of all 

of the witnesses testifying that “A” happened and a video of “A” occurring, 

but the BIA nonetheless finds that “A” did not occur, the record probably 

Case: 20-60120 Document: 00515888366 Page: 4 Date Filed: 06/04/2021
No. 20-60120

5

compels a contrary finding. But what possible evidence could the record 

contain on the question of what Congress meant when it used the term 

“persecution” in 8 U.S.C. § 1101(a)(42)(A)? We generally do not require 

asylum applicants to introduce as evidentiary exhibits copies of the text of the 

asylum statute or the committee reports from when the statute was enacted, 

and so the record will almost never contain “evidence” bearing on whether

the BIA was right or wrong about how 8 U.S.C. § 1101(a)(42)(A) should be 

interpreted. 

Instead, the question of whether a set of undisputed facts fit the 

statutory term “persecution” should be reviewed as a question of law, and 

“the BIA’s interpretation” should be “due deference, if at all, only to the 

extent called for under the familiar Chevron framework.” Gjetani, 968 F.3d 

at 401 (Dennis, J., dissenting) (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. 

Council, Inc., 467 U.S. 837, 841 (1984)). Like in Gjetani, the Government 

does not argue here that “persecution” “is the type of ‘ambiguous statutory 

term’ for which ‘the BIA should be accorded Chevron deference as it gives 

the word concrete meaning through a process of case-by-case 

adjudication.’”1

 968 F.3d at 401 (Dennis, J., dissenting) (alteration omitted) 

(quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999)); cf. INS v. 

Cardoza-Fonseca, 480 U.S. 421, 448–449 (1987) (holding that the phrase 

“well-founded fear,” which is also found in 8 U.S.C. § 1101(a)(42)(A), is 

ambiguous for Chevron purposes). In the absence of such an argument, we 

1 “Were that the case, we would examine the BIA’s interpretation to decide if it is 

unreasonable or clearly contrary to congressional intent, as well as whether its application 

was consistent with the agency's past precedents.” Gjetani, 968 F.3d at 401 n.2 (Dennis, 

J., dissenting); see Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (holding agency 

statutory interpretations that are adopted without a reasoned explanation for a change of 

course are not entitled to Chevron deference); Laclede Gas Co. v. F.E.R.C., 722 F.2d 272, 

275 (5th Cir. 1984) (“An agency must either conform to its prior precedent or explain its 

reasoning for departure from that precedent.”).

Case: 20-60120 Document: 00515888366 Page: 5 Date Filed: 06/04/2021
No. 20-60120

6

should apply ordinary de novo review, utilizing the standard canons of 

construction and our independent judgement to decide whether the 

undisputed attacks Singh suffered as a result of his political affiliation amount 

to persecution under 8 U.S.C. § 1101(a)(42)(A). 

Nevertheless, under this circuit’s rule of orderliness, Gjetani is 

binding precedent until the en banc court or the Supreme Court says 

otherwise. See Mercado v. Lynch, 823 F.3d 276, 279 (5th Cir. 2016). And, 

although I believe it is an incoherent question to ask in this context, it is true

that there is no evidence in the record about the correct way to interpret the 

term “persecution” in 8 U.S.C. § 1101(a)(42)(A). The record obviously 

cannot compel the conclusion that the BIA is misinterpreting 8 U.S.C. 

§ 1101(a)(42)(A) when it has nothing at all to say on the matter, and I thus

cannot say that the court incorrectly applies the substantial evidence 

standard that we are bound to utilize. I therefore concur.

Case: 20-60120 Document: 00515888366 Page: 6 Date Filed: 06/04/2021