20

- 469 Singh v. Garland

BIA Lopez Defillo , IJ

A 208 751 415 **UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT** 

**SUMMARY ORDER**

**RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A**  **SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED**  **AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT**  **’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT**  **FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FED ERAL APPENDIX**  **OR AN ELECTRONIC DATABASE (WITH THE NOTATION “**  **SUMMARY ORDER ”**  **). A PARTY**  **CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY**  **NOT REPRESENTED BY COUNSEL.**
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, h**  **eld at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,**  3 **on the 11**  **th da**  **y of April**  **, two thousand twenty** 
**- two** 

**.** 4 5 **PRESENT:** 6 **RICHARD J. SULLIVAN ,**  7 **WILLIAM J. NARDINI ,**  8 **EUNICE C.**  **LEE ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **LAKHVINDER SINGH, AKA LAKHVINDER** 13 **THAPA ,**  14 **Petitioner ,**  15 16
**v. 20** 

**- 469**  17 **NAC** 18 **MERRICK B. GARLAND ,**  **UNITED** 19 **STATES ATTORNEY GENERAL,** 20 **Respondent**

**.** 21

**_____________________________________** 22 23 **FOR PETITIONER :**  Jaspreet Singh , Esq ., Jackson 24 Heights , NY

. 25 26 **FOR RESPONDENT:** Jeffrey Bossert Clark , Acting 27 Assistant Attorney General ; 28 Anthony P. Nicastro , Assistant 292 Director ; Sherease Pratt , Senior 1 Litigation Counsel , Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, D C. 5
UPON DUE CONSIDERATION of this petition for review of a 6
Board of Immigration Appeals (“BIA”) decision, it is hereby 7
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 8

is DISMISSED in part and DENIED in part

. 9

Petitioner Lakhvinder Singh , a native and citizen of 10

India , seeks review of a January 27 , 20 20 decision of the BIA 11

that affirm ed a March 1 9 , 201 8 decision of an Immigration 12
Judge (“IJ”) denying asylum, withholding of removal, and 13
protection under the Convention Against Torture (“CAT”)

. In 14

re Lakhvinder Singh , No. A 208 751 415 (B.I.A. Jan. 27, 2020 ), 15
aff’g No. A 208 751 415 (Immig r . Ct. N.Y. City Mar. 19, 2018 ). 16

We assume the parties’ familiarity with the underlying facts 17
and procedural history. 18

We have review ed the IJ’s decision as supplemented by 19

the BIA. See Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d 20
Cir. 2005). We review the agency’s factual findings for 21

substantial ev idence, and we review questions of law de novo. 22

See 8 U.S.C. § 1252(b)(4)(B); Wei Sun v. Sessions , 883 F.3d 23
23, 27 (2d Cir. 2018)

. We do not consider Singh’s argument 243 that the IJ “failed to create a record” because it was not 1

raised before the BIA. S ee L in Zhong v. U.S. Dep’t of 2

Justice , 480 F.3d 104, 107 n.1, 120

– 22 (2d Cir. 2007) (holding 3
that, although issue exhaustion is not a jurisdictional 4
requirement, it is “mandatory”). 5

**I. Timeliness of the Asylum Application**  6
Except in circumstances not relevant here, an asylum 7
applicant must demonstrate by “clear and convincing evidence” 8
that he applied for asylum within one year of entry. 8 U.S.C. 9

§ 1158(a)(2)(B). We dismiss Singh’s petition for lack of 10
jurisdiction insofar as it challenges the IJ’s finding that 11
his asylum application was untimely because he does not raise 12
any challenge to the IJ’s application of the law. See 8 13
U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). Singh ’s argument t hat 14

the record demonstrates a timely filing does not raise a 15
question of law because the evidence he points to was not 16
part of the record before the IJ. 17

**II. Withholding of Removal and**  **CAT Protection**  18

T he agency did not err in concluding that Singh failed 19

to demonstrate that the past harm he suffered rose to the 20
level of persecution, or that he would more likely than not 214 be persecuted or tortured if he were forced to return to 1

India. See 8 C.F.R. § 1208.16( b ), ( c ) . “[P]ersecution is 2

‘an extreme co ncept that does not include every sort of 3
treatment our society regards as offensive.’” Mei Fun Wong 4

v. Holder , 633 F.3d 64, 72 (2d Cir. 2011) (quoting Ai Feng 5
Yuan v. U.S. Dep’t of Justice , 416 F.3d 192, 198 (2d Cir. 6
2005)). It “encompasses a variety of forms of adverse 7
treatment, including non

- life

- threatening violence and 8
physical abuse,” but the harm must be sufficiently severe, 9
rising above “mere harassment.” Ivanishvili v. U.S. Dep’t 10

of Justice , 433 F.3d 332, 341 (2d Cir. 2006) ( internal 11
quotation marks and alteration omitted ). “‘[T]he difference 12
between harassment and persecution is necessarily one of 13
degree,’ .

. . [and] the degree must be assessed with regard 14

to the context in which the mistreatment occurs.” Beskovic 15

v. Gonzales , 467 F.3d 223, 226 (2d Cir. 2006) (quoting 16

Ivanishvili , 433 F.3d at 341). 17
Singh testified that members of the ruling Bharatiya 18
Janata Party (“BJP”) and Akali Dal Badal Party (“Badal Party”) 19

assaulted him twice and threatened to kill him because he was 20

a member of the Shiromani Akali Dal Mann (Amritsar) Party 215 (“Mann Party”) and refused to join their parties

. The agency 1
did not err in concluding that this harm did not amount to 2
persecution , given the c ontext and extent of the harm

. S ee 3
Mei Fun Wong , 633 F.3d at 72 ( observing that the context of 4

the harm matters ). The IJ appropriately considered that 5
Singh did not seek medical treatment after either attack or 6
have visible injuries. C f. Jian Qiu Liu v. Holder , 632 F.3d 7
820, 822 (2d Cir. 2011) (finding no error in the agency’s 8

determination that an alien failed to establis h past 9
persecution when “he suffered only minor bruising from an 10
altercation with family planning officials, which required no 11
formal medical attention and had no lasting physical 12
effect”). Moreover, Singh was not assaulted by government 13

actors , and the a ssaults did not occur in the context of an 14
arrest or detention, where minor physical harm is more likely 15
to constitute persecution. See Singh v. Garland , 11 F.4th 16
106, 115

– 16 (2d Cir. 2021) (holding that IJ properly found 17

that a beating and threat by rival party members did not 18
amount to targeting by the authorities even where the police 19
failed to act on a report); Beskovic , 467 F.3d at 226 (“[A] 20
minor beating . . . may rise to the level of persecution if 216 it occurred in the context of an arrest or dete ntion on the 1
basis of a protected ground.”). 2
Because Singh did not demonstrate past persecution, he 3
was not entitled to a presumption of future p ersecution. See 4

8 C.F.R. § 1208.1 6 (b)( 2 ). Absent past persecution, an 5
applicant may establish eligibility for withholding of 6

removal by demonstrating that he would “more likely than not” 7
be persecuted in the future. Id

. ; see Ramsameachire v. 8

Ashcroft , 357 F.3d 169, 178 (2d Cir. 2004) (requiring 9
applicant to show that fear is “objectively reasonable”)

. An 10
applicant must show either that he would be singled out for 11
persecution or that the country of removal has a pattern or 12
practice of persecuting similarly situated individuals. 13

8 C.F .R. § 1208.1 6 (b)(2 )

. Under the substantial evidence 14
standard, the agency’s findings of fact are “conclusive 15
unless any reasonable adjudicator would be compelled to 16
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see 17

Castro v. Holder , 597 F.3d 93, 99

– 100 (2d Cir. 2010). 18
The record does not compel a conclusion contrary to the 19
agency’s determination that Singh did not establish that he 20
will more likely than not be persecuted i f forced to return 217 to India. Singh relied on reports from the U.S. State 1
Department and the Immigration and Refugee Board of Canada to 2
assert a pattern or practice of persecution of members of the 3

Mann Party

. Although t he State Department report does 4

mention instances of violence based on religious affiliation, 5

it does not mention the Mann Party or violence against Sikhs. 6
The Canadian reports provide that people affiliated with a 7
political party in Punjab sometimes face harassment or 8
physical harm at the hands of members of other parties, as 9
Singh did. They also state that members of the Mann Party, 10
which advocates for a separate Sikh state known as Khalistan, 11
are sometimes threatened, harassed, and subject to violence 12
by members of the Badal Party and BJP. Mann P arty members 13

who “are kno wn to be advocates for Khalistan” are monitored 14
by police and sometimes subjected to more severe harm , but 15
the reports do not demonstrate that a person similarly 16
situated to Singh

— who did not describe any public political 17
activity besides putting up poster s and refusing to join the 18
ruling parties

— is likely to be persecuted for supporting the 19

Mann Party. 208 The remainder of Singh’s evidence also does not compel a 1
finding that Mann Party members or Sikhs in Punjab are subject 2
to a pattern or practice of persecut ion. Thus, there is no 3

indication that the IJ failed to consider all the evidence or 4
that Singh met his burden to demonstrate a sufficient 5
likelihood of persecution

. See Xiao Ji Chen v. Holder , 471 6
F.3d 315, 336 n.17 (2d Cir. 2006) (“[W]e presume that an IJ 7
has taken into account all of the evidence before him, unless 8
the record compellingly suggests otherwise.”); Jian Xing 9

Huang v. U.S. INS , 421 F.3d 125, 129 (2d Cir. 2005) (holding 10

that a fea r is not objectively reasonable if it lacks “solid 11
support” in the record and is merely “speculative at best”). 12
In sum, the agency did not err in finding that Singh did 13
not meet his burden to show past harm rising to the level of 14
persecution or that he w ould more likely than not be 15
persecuted or tortured in the future if forced to return to 16

India

. See 8 C.F.R. § 1208.1 6 (b)(1) , (2) , (c)(2). 17

189 For the foregoing reasons, the petition for review is 1

D ISMISSED in part and D ENIED in remaining part

. All pending 2
motions and applications are DENIED and stays VACATED. 3

FOR THE COURT: 4 Catherine O ’ Hagan Wolfe , 5 Clerk of Court 6