Harinder Singh v. JOHN ASHCROFT, Attorney General of the United States

1 The Honorable Berle M. Schiller, United States District Judge, Eastern District of
Pennsylvania, sitting by designation.
1
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 02-3759
HARINDER SINGH,
Petitioner
v.
JOHN ASHCROFT,
Attorney General of the United States ,
Respondent
On Appeal from the Board of Immigration Appeals
( No. A79-400-538)
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 18, 2003
Before: McKEE and SMITH, Circuit Judges,
and SCHILLER, District Judge1.
(Filed: November 7, 2003)
OPINION
McKEE, Circuit Judge.
Harinder Singh argues the Board of Immigration Appeals (“BIA”) erred by

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2 Singh does not make an argument in his brief that the IJ erred in finding that he did not qualify
for withholding of removal or protection under the Convention Against Torture, therefore, he has
waived those avenues for relief on appeal. See Ghana v. Holland, 226 F.3d 175, 180 (3d Cir.
2000). (“Rule 28(a)(5) of the Federal Rules of Appellate Procedure and our Local Rule 28.1(a)
require appellants to set forth the issues raised on appeal and to present an argument in support of
those issues in their opening brief.”).
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affirming the Immigration Judge’s order denying his application for asylum and
withholding of removal. Singh was ordered removed in accordance with 241(b)(1)(A) of
the Immigration and Nationality Act (“INA”). For the following reasons we will affirm.
I.
Because we write only for the parties, it is not necessary to recite the facts of this
case except insofar as may be helpful to our brief discussion. Rather, it is sufficient to
note that Singh is a fourteen year old, single, male alien, who is a native and citizen of
India who arrived in the United States in Miami, Florida on or about May 24, 2001. At
the airport, Singh was denied admission into the United States based upon his false
passport and visa. An INS officer took a sworn statement from Singh at the airport.
Singh stated that he wanted to enter the United States to earn money, and that he could
not do that in India because of the poor economic conditions there. He was subsequently
placed into removal proceedings.
During a November 18, 2001 hearing before the Immigration Judge (“IJ”), Singh
conceded that he was removable but expressed a fear of returning to India and requested
asylum, withholding of removal and protection under the Convention Against Torture.2

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An application for asylum followed in which Singh sought asylum because he is Sikh, an
ethnic and religious minority in India.
Singh testified that he lived with his mother and two older sisters in the Punjab in
India. He stated that, when he was about seven years old his older sister was kidnapped
while the family was sleeping. Singh stated that he had no personal recollection of the
incident, and that incident was the only adverse occurrence to either of his sisters.
Singh’s sister was eventually returned unharmed.
Singh also testified that in February 2001, while he was sleeping on the roof of his
home, some “masked people” tried to use ladders to climb up onto the roof. Singh
testified that his mother and sister saw the masked people and screamed. Neighbors
woke up and frightened the intruders off by throwing rocks at them. Singh’s mother told
him that the police were involved and the “masked people” may have been police because
police vehicles were at the scene.
Singh also stated that he sought asylum because he was fearful of returning to the
Punjab in India. Singh claims that he does not want to be kidnapped like his sister and
that he is afraid of the masked people who tried to climb onto his roof. Singh contends he
is subject to persecution and should be granted asylum.
The IJ denied Singh asylum and ordered him removed to India, the BIA dismissed
Singh’s appeal and affirmed the IJ’s decision. This appeal followed.
II.

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3 We must sustain the BIA’s determination if there is substantial evidence in the record to
support it. Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001). Under this deferential
standard, the BIA’s findings must be upheld “unless the evidence not only supports a contrary
conclusion, but compels it.” Id. Because the BIA affirmed the IJ’s ruling without an opinion, we
review the decision of the IJ as if it were the decision of the BIA. Abdulai v. Ashcroft, 239 F.3d
542, 549 n.2 (3d Cir. 2001).
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We must decide three issues on appeal. First, whether the BIA erred in finding
Singh did not suffer past or future persecution. Second, whether the BIA erred by finding
Singh is not a member of a “particular social group.” Third, whether the BIA erred by
admitting Singh’s sworn airport statement into evidence.3
A. Application for Asylum
Section 208(a) of the INA gives the Attorney General discretion to grant asylum to
a deportable alien who qualifies as a “refugee.” 8 U.S.C. § 1158(a). The term “refugee”
is defined by statute as:
[A]ny person who is outside any country of such person’s nationality or, in the
case of a person having no nationality, is outside any country in which such
person last habitually resided, and who is unable or unwilling to avail himself
or herself of the protection of that country 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). Therefore, to be eligible for asylum, an asylum
applicant must have either suffered past persecution or fear future persecution on
one of the five grounds set fourth in § 1101(a)(42)(A). Lukwago v. Ashcroft, 329
F.3d 157, 167 (3d Cir. 2003). Furthermore, the asylum applicant must prove a

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nexus between the persecution and one of the five specified grounds, or the asylum
claim must fail. INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992).
1. Persecution
To qualify for past persecution, Singh must first show he suffered “persecution”
which includes: “threats to life, confinement, or torture, and economic restrictions so
severe that they constitute a real threat to life or freedom.” Lin v. INS, 238 F.3d 239, 244
(3rd Cir. 2001) (citation omitted). Singh contends that he suffered past persecution and he
fled India and his home in the Punjab because the Punjabi police attempted to kidnap him.
The IJ found that Singh did not suffer past persecution because Singh had never been
harmed by the police or any other person while he lived in India. That finding is
supported by substantial evidence. See 8 U.S.C § 1252(b)(4)(B).
The phrase “well-founded fear” has both a subjective and objective component.
Abdille, 242 F.3d at 495-96. An applicant for asylum must “show that he has a subjective
fear of persecution that is supported by objective evidence that persecution is a reasonable
possibility.” Id. at 496 (citation omitted). The objective component is whether a
reasonable person in Singh’s situation would fear persecution if returned to India. See
Chang v. INS, 119 F.3d 1055, 1065 (3d Cir. 1997). The burden is on Singh to prove his
claim. See id. at 1066.
The IJ concluded he could not speculate about whether the masked people who
attempted to get onto Singh’s roof were police. Similarly, the IJ did not wish to speculate

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4As we have just noted, Singh has not even established “persecution” or a reasonable
fear of it.
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that the masked people were in fact there to attack or kidnap Singh, let alone that they
were motivated by a desire to persecute him because of one of the grounds set forth in the
definition of “refugee” contained in § 1101(a)(42)(A). There is also no evidence of
government policy targeting Sikhs or Singh’s family. The IJ’s determination that Singh
did not have a well-founded fear of future persecution is thus supported by substantial
evidence and a reasonable adjudicator would not be compelled to conclude to the
contrary.
2. Particular Social Group
There are three requirements to qualify for asylum based on membership in a
“particular social group”: (1) the alien must identify a group that constitutes a “particular
social group,” (2) the alien must establish that he/she is a member of that group; and (3)
the alien must show that he/she was persecuted based on that membership. Fatin v. INS,
12 F.3d 1233, 1240 (3d Cir. 1993). However, we need not inquire into this here because
Singh has not established a nexus between any persecution and his “particular social
group”.4
B. The “Airport” Statement

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Singh made a timely objection to the admission of his airport interview based on
his contention that he did not understand many of the questions posed to him by the INS
officer who took his sworn statement.
Airport interviews are often problematic for many reasons and we explained why
they must be used with caution in Balasubramanrim v. INS, 143 F.3d 157 (3d Cir. 1998).
Here, the IJ recognized the suspect nature of airport interviews in general and carefully
analyzed Singh’s airport statement. The IJ questioned Singh extensively about the
circumstances surrounding his airport statement and conceded that it would be natural for
Singh to be frightened. Singh’s fear however, did not compel the IJ to reject the
statement.
The IJ found Singh to be generally credible but had problems with Singh’s
contention that he did not understand a lot of the questions posed at the airport because
they were in English. The IJ concluded that the specificity of many of Singh’s answers
demonstrated that Singh understood the questions posed by the INS officer despite his
subsequent testimony to the contrary.
That conclusion is consistent with the record and we do not conclude that the IJ
erred in admitting the airport interview.
III.
For the above reasons, we will affirm the decision of the BIA.

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TO THE CLERK OF THE COURT:
Please file the foregoing Opinion.
/s/ Theodore A. McKee
Circuit Judge

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