Gurdeep Singh v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11381
Non-Argument Calendar
____________________
GURDEEP SINGH,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A216-264-794
____________________
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2 Opinion of the Court 21-11381
Before GRANT, L UCK , and B RASHER , Circuit Judges.
PER CURIAM:
Gurdeep Singh, an Indian national, seeks relief from
removal because opposition-party members twice beat and
threatened him for putting up posters for his political party, and he
fears further harm if he returns to India. Although those beatings
were unfortunate, they were not severe enough to amount to
persecution. Nor does the record compel us to conclude that his
fear of more severe mistreatment upon return is reasonable. We
therefore deny Singh’s petition for review of the Board’s denial of
his application for relief.
I.
Singh left Dasuya, a town in India’s Punjab region, and after
traveling through more than ten countries crossed into the United
States without inspection. Within a month, immigration officers
apprehended him and placed him in removal proceedings.
At an initial removal hearing, Singh conceded his
removability but told the presiding immigration judge that he
planned to apply for asylum, withholding of removal, and
protection under the Convention Against Torture. But his lawyer
did not file his relief application on time. The immigration judge
decided that, because of the delay, Singh had abandoned any relief
that he might have obtained, and thus ordered his removal to India.
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21-11381 Opinion of the Court 3
Singh successfully moved to reopen his proceedings, and the
immigration judge held an evidentiary hearing on the relief
application. There, Singh testified that he was twice attacked while
he was volunteering for the Shiromani Akali Dal (Amritsar) Mann
party—a party that advocates for a separate country for Sikhs like
Singh. The first attack, he said, occurred in April 2017 while he was
hanging posters for the Mann party. Some number of persons
wearing shirts with a logo for the India National Congress party
approached and tore down the posters. When Singh protested,
they began beating him. His friend and nearby shopkeepers
quickly came to his aid. As the shopkeepers approached, the
assailants told Singh that “it would be wiser” if he quit his party to
join theirs—and then fled.
The beating did not deter him; ten to fifteen days later, he
began volunteering for the party again. The next few months
passed without incident, but in July 2017, he was attacked again.
On Singh’s way home from putting up posters, four persons
approached him on motorbikes that bore a logo for the Bharatiya
Janata Party (BJP). The riders stopped him, began beating him with
wooden sticks, and warned that he would “get killed” if he did not
quit the Mann party. This beating too was cut short when a vehicle
approached; again, the assailants fled.
Both beatings left him with only minor injuries. In his
doctor’s account, Singh received only a painkiller and some cream
for swelling to treat a minor injury he received in the first attack.
(In Singh’s telling, he did not even receive treatment in April.) As
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4 Opinion of the Court 21-11381
for the second attack, it left Singh with multiple bruises and some
injuries on his legs—injuries that again required only a painkiller
and some cream to treat.
After the attacks, no one from either party came looking for
Singh. At the end of the second attack, however, the assailants had
photographed him. That frightened Singh’s father enough to
arrange for his son’s travel to the United States.
Since his departure, Singh said, police officers and members
of the Congress party and BJP began coming by his parents’ home
occasionally to ask for him. But nothing had happened to his
father, mother, or sister, all of whom support the Mann party. And
Singh had not heard of any other incident in Dasuya (or nearby)
where members of the BJP or the Congress party had attacked any
of the city’s fifty to sixty Mann party workers.
After hearing this testimony, the immigration judge denied
Singh’s application for relief because, among other things, Singh
had not established that the two attacks amounted to persecution,
that his fear of persecution upon his return to India was well-
founded, or that the Indian government would likely torture him.
On appeal the Board determined that Singh had waived any
challenge to the denial of protection under the Convention Against
Torture, and agreed with the findings underlying the denials of
asylum and withholding of removal. This petition followed.
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21-11381 Opinion of the Court 5
II.
Singh—for the first time before this court—challenges the
immigration judge’s jurisdiction. A challenge to the agency’s
jurisdiction is a challenge to our own; we cannot consider a petition
for review of an order in a case that the agency lacked jurisdiction
to hear.
See Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148, 1153
(11th Cir. 2019). Despite Singh’s failure to exhaust this challenge
before the Board, then, we can—indeed must—consider it.
See id.
Singh contends that a defect in his notice to appear (a failure
to specify an initial hearing time) deprived the immigration judge
of jurisdiction. Both 8 U.S.C. § 1229(a) and 8 C.F.R. § 1003.14, he
says, vest jurisdiction in the immigration judge only upon filing of
a fully compliant notice to appear. In
Perez-Sanchez v. U.S.
Attorney General, however, we explained that neither provision
creates a “jurisdictional rule.”
Id. at 1154, 1157. And a subsequent
Supreme Court case that Singh relies on,
Niz-Chavez v. Garland,
does not undermine that holding. 141 S. Ct. 1474 (2021). There,
the Supreme Court decided only that a notice to appear needed to
come in one document, not two.
See id. at 1480. Nothing that it
said transformed either § 1229(a) or § 1003.14 into a jurisdictional
requirement. We thus can hear Singh’s case.
III.
A.
Singh primarily challenges the findings underlying the denial
of his application for asylum and withholding of removal. We
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review those findings for substantial evidence.
See Sanchez-Castro
v. U.S. Att’y Gen., 998 F.3d 1281, 1285 (11th Cir. 2021). That
standard is “highly deferential”; indeed, we cannot reverse a factual
finding “unless any reasonable adjudicator would be compelled” to
disagree with it.
Id.; 8 U.S.C. § 1252(b)(4)(B). Where, as here, the
Board adopted the immigration judge’s opinion and added
reasoning of its own, we review both the immigration judge’s
opinion and any further explanation offered by the Board.
See
Thamotar v. U.S. Att’y Gen., 1 F.4th 958, 969 (11th Cir. 2021).
To establish asylum eligibility, an applicant must show that
he “suffered past persecution or has a well-founded fear of future
persecution” on account of a ground protected in the Immigration
and Nationality Act—as relevant here, religion and political
opinion.
Alvarado v. U.S. Att’y Gen., 984 F.3d 982, 988 (11th Cir.
2020) (quotation omitted);
see 8 U.S.C. §§ 1101(42)(A),
1158(b)(1)(A). “Persecution is an extreme concept.”
Kazemzadeh
v. U.S. Att’y Gen., 577 F.3d 1341, 1353 (11th Cir. 2009) (quotation
omitted and alteration adopted). More often than not, this Court
has defined it in the negative: persecution is more than “a few
isolated incidents of verbal harassment or intimidation,” or than
“[m]inor physical abuse.”
Id.;
Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1231 (11th Cir. 2005). And here, the two isolated and
brief beatings left Singh with only minor injuries—his treatment
after the beatings was, at most, painkillers and some cream.
To be fair, persecution can occur “absent a serious physical
injury” if the applicant suffers “repeated threats
combined with
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21-11381 Opinion of the Court 7
other forms of serious mistreatment.”
Martinez v. U.S. Att’y Gen.,
992 F.3d 1283, 1292 (11th Cir. 2021) (emphasis added). Singh’s
attackers, he testified, threatened him at each beating. But in the
intervening months, he was never victim to any other
mistreatment, let alone serious mistreatment. And no abuse or
harassment followed the second beating. We therefore are not
compelled to conclude that Singh was persecuted.
Nor are we compelled to conclude that his fear of future
persecution is well-founded. To be so, there must be a “reasonable
possibility” that Singh would be persecuted if he returned to India.
Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007)
(emphasis omitted). Singh asserts that such a possibility exists,
noting that the Mann party president and Canada had reported that
party members had been detained and harassed for engaging in
political protests and advocating for Sikh secession from India.1 Yet
1 Singh also contends that the immigration judge’s failure to mention these
documents and other country reports shows that he failed to give reasoned
consideration to Singh’s case. But an immigration judge need not “address
each piece of evidence presented.”
Martinez v. U.S. Att’y Gen., 992 F.3d 1283,
1294 (11th Cir. 2021). It need only “consider the issues raised and announce
its decision in terms sufficient to enable a reviewing court to perceive that it
had heard and thought and not merely reacted to the issues raised and
evidence presented.”
Id. (quotation omitted). The immigration judge’s
analysis of Singh’s assertion of well-founded fear is brief. But nothing in the
opinion makes us doubt, when we review the record, that we and the
immigration judge “are, in substance, looking at the same case.”
Ali v. U.S.
Att’y Gen., 931 F.3d 1327, 1334 (11th Cir. 2019). The immigration judge thus
gave enough explanation to enable our review of Singh’s case.
See id.
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8 Opinion of the Court 21-11381
the U.S. government reports that the treatment of Sikhs generally,
and of Mann party members by the Congress party, has “improved
significantly” over time. It also cites no instance where BJP
members abused Mann party members; instead, BJP abuses seem
to be targeted at Muslims.
More important, nothing in the record supports the fear that
Singh asserts: that on his return, the government and opposition-
party members would hunt him down and persecute him for his
political activity. None of the country reports—or even the Mann
party president’s letter—suggest that the government or any
political party has recently sought out and punished Mann party
workers for hanging up posters or other organizing efforts. All
Singh can cite is his family’s statement that some unidentified
members of both parties and of the government had come by the
home to ask after him. But no harm has befallen his family, who
also supports the Mann party, or (to his knowledge) any other party
worker in the city. We therefore uphold the finding that his fear of
persecution upon return is not well-founded—and thus the Board’s
denial of his asylum claim.
As for Singh’s application for withholding of removal, he
needed to show that he “would ‘more likely than not’ be
persecuted” upon his return.
Jathursan v. U.S. Att’y Gen., 17 F.4th
1365, 1375 (11th Cir. 2021). That standard of proof is “more
demanding” than asylum’s “‘well-founded fear’ standard.”
Sanchez-Castro, 998 F.3d at 1286. By failing to establish his
eligibility for asylum, then, Singh “necessarily failed to establish
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21-11381 Opinion of the Court 9
eligibility for withholding of removal.”
Murugan v. U.S. Att’y
Gen., 10 F.4th 1185, 1196 (11th Cir. 2021) (alteration adopted).
B.
Singh also challenges the Board’s summary dismissal of his
claim for CAT protection as “waived,” a decision we review for an
abuse of discretion.
See Lapaix v. U.S. Att’y Gen., 605 F.3d 1138,
1144–45 (11th Cir. 2010); 8 C.F.R. § 1003.1(d)(2)(i)(G). To avoid
this “waiver,” an alien must “specifically identify the findings of
fact, the conclusions of law, or both,” that he seeks to contest.
Lapaix, 605 F.3d at 1145. “Passing references” to an issue will not
suffice.
Id.
Here, passing references are all Singh offered. His brief to
the Board mentioned the Convention Against Torture just once,
and made a single oblique suggestion that statements in the record
showed that the Indian police had “coordinated actions to
facilitate” his “persecution and torture.” He never specifically
contested the immigration judge’s finding that there was “no
evidence” that he “was tortured in India” or that “the official
government of India” had “any interest” in torturing him on his
return. The Board therefore did not abuse its discretion when it
held that Singh had waived his claim for protection under the
Convention Against Torture.
* * *
Singh’s petition for review is DENIED.
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