United States Court of Appeals

for the Fifth Circuit ____________

No. 20-60712

consolidated with

No. 23-60583

____________

Pardeep Kumar, 

Petitioner, 

versus

Merrick Garland, U.S. Attorney General, 

Respondent. 

______________________________

Petitions for Review of Orders 

of the Board of Immigration Appeals

Agency Nos. A201 680 166, 

A201 680 166

______________________________

ON REMAND FROM

THE SUPREME COURT OF THE UNITED STATES

Before Jones, Southwick, and Oldham, Circuit Judges.

Per Curiam:*

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 22, 2024

Lyle W. Cayce

Clerk

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The United States Supreme Court issued a writ of certiorari to this 

court, vacated our judgment, and remanded for further proceedings. Kumar 

v. Garland, 143 S. Ct. 2558 (2023). We are to reconsider our prior decision 

in this case in light of the Court’s holding in Santos-Zacaria v. Garland, 598 

U.S. 411 (2023). In Santos-Zacaria, the Court held that the exhaustion requirement in 8 U.S.C. § 1252(d)(1) is not jurisdictional. Id. at 419.

We therefore must examine Pradeep Kumar’s unexhausted claims 

that we previously declined to consider because of our conclusion that we 

lacked jurisdiction under Section 1252(d)(1). We also consider Kumar’s new 

petition for review of the Board of Immigration Appeals’ (“BIA”) denial of 

his motion to reopen based on changed country conditions. 

Our initial decision detailed the factual and procedural history of this 

case, which concerns the BIA’s denial of Kumar’s applications for asylum, 

withholding of removal, and Convention Against Torture protection. See 

Kumar v. Garland, 52 F.4th 957, 964–65 (5th Cir. 2022), vacated, 143 S. Ct. 

2558 (2023). We will limit our discussion to those claims that we previously 

did not address because we determined they were unexhausted. Id. at 966–

67, 968–69. That was the only portion of our prior decision that the Supreme 

Court determined required further consideration.

The first relevant issue is whether the BIA applied an incorrect legal 

standard to Kumar’s claims of past persecution by not considering the 

“cumulative effect of his experiences.” Id. at 966. Kumar argues the 

immigration judge (“IJ”) focused on two beatings and subsequent threats he 

endured in isolation to find that they were “minor,” and the BIA erred in 

affirming without considering the aggregate harm. This argument is 

meritless. The IJ considered the attacks that Kumar identified and 

determined “they do not individually or cumulatively rise to the level” of past 

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persecution. The record does “not compel a contrary conclusion that the 

harm endured amounts to persecution.” Id. at 970 (emphasis in original). 

The second issue is whether the BIA erred in applying caselaw that 

Kumar insists is distinguishable. Id. at 967 (citing Eduard v. Ashcroft, 379 F.3d 

182 (5th Cir. 2004); Abdel-Masieh v. INS, 73 F.3d 579 (5th Cir. 1996); Qorane 

v. Barr, 919 F.3d 904 (5th Cir. 2019); Morales v. Sessions, 860 F.3d 812 (5th 

Cir. 2017)). Although we held this issue was unexhausted, we also stated that 

the claims of past persecution in one of the authorities on which the BIA 

relied were “similar to Kumar’s.” Id. at 970 (discussing Abdel-Masieh, 73 

F.3d at 582, 584). The BIA did not err in considering this case. Moreover, 

we noted that Kumar argued to the BIA that Eduard “was relevant,” and we 

agree that it was. Id. at 967 (emphasis in original). Kumar’s attempts to 

distinguish this case by arguing he was able to identify his assailants is of no 

help to him because the identity of the assailant in Eduard was irrelevant to 

the mistreatment of the petitioner, which we held was insufficient to 

constitute past persecution. Eduard, 379 F.3d at 188. Finally, the BIA did 

not err in citing Qorane and Morales for the proposition that “persecution is 

an extreme concept that does not include every sort of treatment our society 

regards as offensive.” That proposition is as true in this case as it was there. 

Kumar, 52 F.4th at 970. Whatever factual distinctions exist between this case 

and these authorities, we conclude there was no error in the BIA’s finding 

that Kumar’s experience was insufficient to amount to persecution.

The third issue is whether the Government bore the burden to prove 

that Kumar could safely relocate in India because he alleged his persecutors 

and the Indian government, currently run by the Bharatiya Janata Party 

(“BJP”), are one and the same. Our earlier decision did consider whether 

the record demonstrated that the Indian government participated in Kumar’s 

beatings and threats or at least acquiesced in them. Id. at 970–71. We found 

that “[t]he evidence Kumar presented showed only the BJP, not the Indian 

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government itself, supported or sponsored the attacks against Kumar.” Id. 

at 971. That conclusion resolves Kumar’s unexhausted burden of proof 

argument. Kumar bore “the burden of establishing that it would not be 

reasonable for him . . . to relocate” because he did not establish past 

persecution or that “the persecution is by a government or is governmentsponsored.” 8 C.F.R. § 1208.13(b)(3)(i).

The fourth and last issue that remains from our prior decision is 

whether the BIA gave meaningful consideration to Kumar’s affidavits that 

“his fellow [Indian National Lok Dahl Party (‘INDP’)] workers were 

attacked upon return to India, or to his January 31, 2020, medical 

evaluation.” Kumar, 52 F.4th at 969. We considered the January 31 medical 

evaluation, however, and concluded it “largely describes Kumar’s medical 

status as it relates to his hunger strike,” not “the extent of his persecution 

from the BJP.” Id. at 972, 974. We also held that the BIA did not abuse its 

discretion in refusing to remand the case based on this medical evaluation 

and the affidavits of attacks on INDP workers because it was reasonable to 

conclude this evidence “would not have influenced [Kumar’s] case.” Id. at 

973–74. Thus, even assuming arguendo the BIA’s consideration was 

insufficient, there was no reversible error. See id.

The foregoing resolves the matters remanded to us from the Supreme 

Court. We now consider the BIA’s denial of Kumar’s motion to reopen 

based on changed country conditions in India.1

 In his motion to reopen, 

Kumar argued he had new evidence of the ruling BJP’s “increasing 

authoritarianism and crackdown” on farmers’ protests in 2020 and 2021. He 

_____________________

1 Kumar filed the motion to reopen in November 2022. After the motion was 

denied in October 2023, Kumar petitioned for review. On the Government’s unopposed 

motion, we consolidated Kumar’s new petition with his original petition regarding the 

underlying order of removal. 8 U.S.C. § 1252(b)(6).

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introduced an expert report explaining the Indian government’s actions 

against farmers’ protesters, religious minorities, and journalists since the IJ’s 

initial 2019 decision in this case. In addition, Kumar submitted affidavits 

regarding BJP attacks on Kumar’s family and other INLD workers and

Kumar’s January 31, 2020, medical evaluation, which appear to be the same 

information he attempted to introduce to the BIA during his first appeal.

In denying his motion, the BIA concluded Kumar’s new evidence did 

not show changed country conditions sufficient to warrant reopening, but 

instead showed “a continuation of a trend.” The BIA also faulted Kumar for 

failing to “meaningfully compar[e] conditions as they existed at the time of 

[Kumar’s] final hearing in November 2019 and as they currently exist.” 

Thus, the BIA took administrative notice of 2019 country reports, which 

“similarly describe violence against protesters,” religious minorities, and 

journalists attributed to BJP members.

Before us, Kumar argues the BIA abused its discretion by failing to 

give meaningful consideration to his new evidence or to evidence already 

existing in the record. Specifically, Kumar highlights his status as a wheat 

farmer who advocates on behalf of farmers’ rights and argues the BIA failed 

to consider the BJP’s treatment of farmers’ protests in 2020 and 2021. 

Kumar contends this evidence, as well as the evidence of BJP threats and 

attacks against his family after the IJ’s proceedings in 2019, demonstrates 

Kumar is “highly vulnerable” to future persecution and torture.

We review the BIA’s denial of a motion to reopen based on changed 

country conditions for abuse of discretion. Ramos-Lopez v. Lynch, 823 F.3d 

1024, 1026 (5th Cir. 2016). Kumar’s own expert report explains that “[s]ince 

coming to power in 2014,” and especially “[l]eading up to the 2019 

parliamentary elections, the BJP’s persecution of political opponents was 

rampant.” As the BIA concluded, this shows a “continuation of a trend,” 

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which is “insufficient to show changed country conditions.” Nunez v. 

Sessions, 882 F.3d 499, 508 (5th Cir. 2018). Indeed, Kumar’s expert report 

considered the BJP’s actions against him “as part of a larger trend.”

Although Kumar points to specific mistreatment of protesting farmers 

in 2020 and 2021, “individual incidents, without evidence that they are part 

of a larger material change, do not constitute changed country conditions.” 

Id. at 509 (emphasis added). Kumar fails to explain how the BJP’s actions 

during these protests, or against his family members and other INDP 

supporters, are part of a “larger material change” from the conditions during 

his original removal proceedings. Id. Another panel of this court reached the 

same conclusion on very similar factual allegations. See Singh v. Garland, No. 

23-60217, 2023 WL 8598138, at *1–2 (5th Cir. Dec. 12, 2023). Accordingly, 

the BIA did not abuse its discretion. See id. at *1.

PETITIONS DENIED.

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