Gurpreet Singh v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GURPREET SINGH,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1374
Agency No.
A202-062-599
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 14, 2023**
Seattle, Washington
Before: McKEOWN and GOULD, Circuit Judges, and BAKER, Judge.***
Gurpreet Singh, an Indian citizen, seeks review of an order by the Board of
Immigration Appeals (BIA) dismissing his appeal from an Immigration Judge’s
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
FILED
NOV 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(IJ) denial of his applications for asylum, withholding of removal, and protection
under the Convention Against Torture (CAT). We have jurisdiction under 8
U.S.C. § 1252(a)(1), and we deny the petition.
Singh, a practicing Sikh, alleges that he was persecuted by Hindus and
political opponents in India. Singh also alleges that leaders of a rival political
party tried to file a false report against him in the lead-up to an election, but that
the matter was settled by elders in Singh’s village. Singh did not report these
incidents to the police because he believed the police would not help him.
The BIA did not err in upholding the IJ’s denial of asylum. To establish
asylum eligibility, an applicant must show that he is unable or unwilling to return
to his country of nationality “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.” 8 U.S.C. § 1101(a)(42)(A); Udo v. Garland, 32
F.4th 1198, 1206 (9th Cir. 2022).
Substantial evidence supports the BIA’s determination that Singh did not
establish past persecution. Contrary to Singh’s contention, the BIA did not rely
exclusively on the fact that Singh was not physically harmed to the point of serious
harm or injury. Though the BIA appropriately considered his lack of physical
harm as a factor, it took into account Singh’s age, the threats he received, the
severity of harm he did incur, and his continued political activities. See Sharma v.

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Garland, 9 F.4th 1052, 1061 (9th Cir. 2021) (explaining that a finding of past
persecution depends on a “heavily fact-dependent” inquiry into “whether, looking
at the cumulative effect of all the incidents that a Petitioner has suffered, the
treatment he received rises to the level of persecution,” wherein “[t]he first, and
often a significant consideration, is whether the petitioner was subject to
significant physical violence”) (internal quotation marks and citations omitted).
The agency evaluated the harm Singh experienced as both a child and an adult,
ultimately finding his uninhibited practice of the Sikh religion and continued
political activity was insufficient to show that Singh had been severely impacted
by his mistreatment. Substantial evidence supports this conclusion: Singh
continued his political activities even after receiving threats from political
opponents and after the settlement with the village elders; those threats to “silence”
Singh were generalized and speculative, rather than pointed and specific; and
Singh’s injuries from the two altercations—scratches and a bloody lip—were
minor. Persecution is “an extreme concept,” and the evidence in the record does
not compel a finding that Singh experienced past persecution. Id. at 1060 (quoting
Donchev v. Mukasey, 553 F.3d 1206, 1213 (9th Cir. 2009)).
Additionally, the BIA did not err in holding that Singh did not establish that
he faces an individualized risk of persecution as a member of a disfavored group.
In determining whether an applicant has established a well-founded fear of

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persecution based on membership in a disfavored group, “this court will look to (1)
the risk level of membership in the group (i.e., the extent and the severity of
persecution suffered by the group) and (2) the [undocumented person’s] individual
risk level (i.e., whether the [undocumented person] has a special role in the group
or is more likely to come to the attention of the persecutors making him a more
likely target for persecution).” Mgoian v. INS, 184 F.3d 1029, 1035 n.4 (9th Cir.
1999). “The relationship between these two factors is correlational; that is to say,
the more serious and widespread the threat of persecution to the group, the less
individualized the threat of persecution needs to be.” Id.
While Sikhs are a significant minority that has endured discrimination, Sikhs
have also achieved positions of power in government and there are certain
provisions within the law designed specifically for their protection. But even if
Singh had put forth substantial evidence that Sikhs are a disfavored group, “the
petitioner [must] present[] some evidence that he or she face[s] a unique risk of
persecution upon return that [is] distinct from the petitioner’s mere membership in
a disfavored group.” Halim v. Holder, 590 F.3d 971, 979 (9th Cir. 2009) (quoting
Lolong v. Gonzales, 484 F.3d 1173, 1180 n.5 (9th Cir. 2007) (en banc)). Singh has
failed to do so.
Before the BIA, Singh failed to challenge the IJ’s determination of his
claims for withholding of removal and CAT protection. As the government

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pointed out in its answering brief, Singh has failed to exhaust his remedies under 8
U.S.C. § 1252(d)(1). Though the Supreme Court recently held that the exhaustion
requirement is not jurisdictional, see Santos-Zacaria v. Garland, 598 U.S. 411, 423
(2023), we have held that it remains a mandatory claim-processing rule. See, e.g.,
Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023).1
Even if not waived, these claims would fail: Because “[w]ithholding’s clear-
probability standard is more stringent than asylum’s well-founded-fear standard,” a
failure to establish eligibility for asylum necessitates a failure to establish
eligibility for withholding. Singh v. Garland, 57 F.4th 643, 658 (9th Cir. 2022)
(internal quotation marks and citation omitted). Substantial evidence also supports
the IJ’s conclusion that Singh has failed to establish that he would be subject to
torture in India and that the Indian government would acquiesce to such treatment.
See Plancarte Sauceda v. Garland, 23 F.4th 824, 834 (9th Cir. 2022).
PETITION DENIED.
1 Singh also argues that the IJ failed to provide Singh the opportunity to offer
additional corroborating documents. To the extent that this argument refers to the
exhibit that was excluded as untimely, Singh waived this argument by failing to
raise this issue before the BIA. To the extent that Singh sought to submit other
evidence to the IJ supporting his credibility, the IJ found Singh credible but
concluded that “the problem[s] with [Singh’s] case . . . go far beyond the absence
of corroborating information.”

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