Charnjit Singh v. William Barr, U. S. Atty , 920 F.3d 255 ( 2019 )

Case: 17-60821 Document: 00514900085 Page: 1 Date Filed: 04/03/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 3, 2019
No. 17-60821
Lyle W. Cayce
Clerk
CHARNJIT SINGH; MANJEET KAUR; KRISHAN PREET SINGH; SIMAR
PREET KAUR,
Petitioners,
v.
WILLIAM P. BARR, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals
Before STEWART, Chief Judge, and DAVIS and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
Petitioners Charnjit Singh and his family members, who are natives and
citizens of India, petition for review of an order of the Board of Immigration
Appeals (BIA) denying them relief from removal. We deny their petition for
review.
I.
Charnjit Singh, his wife Manjeet, and their two children Krishan and
Simar came to the United States on temporary tourist visas but overstayed
their authorized period of stay. When the Department of Homeland Security
(DHS) initiated removal proceedings against the Singhs, they conceded
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removability but sought relief from removal by applying for asylum,
withholding of removal, and protection under the Convention Against Torture
(CAT). The immigration judge (IJ) held a hearing in which the Singhs offered
various types of testimonial and documentary evidence.
The basis of the Singhs’ claim for relief was that Charnjit feared
returning to India because of the past harm that Charnjit had suffered between
the late 1980s and early 1990s on account of his political involvement in the
Khalistan movement that sought to create a separate Sikh nation in the
Punjab region of India. 1 In his testimony, Charnjit recounted that he
witnessed “Operation Blue Star” in 1984 in which government forces attacked
and massacred many Sikhs. This experience prompted Charnjit to join the
Khalistan movement. Charnjit also testified that, because of his involvement
in the Khalistan movement, the Punjabi police placed him on a list of terrorists
and detained him in 1986, 1992, and 1993. During his 1992 detention, Charnjit
was physically mistreated and suffered a permanent injury to one of his
fingers. During the cross-examination by the DHS, Charnjit stated that, at his
wife’s insistence, he “steered away from [the] Khalistan movement” and was
no longer active in the movement after 1993.
Charnjit testified that although his family eventually moved away to
Delhi, the Punjabi police traveled outside of their jurisdiction to kidnap,
physically abuse, and extort money from Charnjit. For example, in 2001, 2008,
and 2009, Charnjit had to pay significant bribes to ransom himself or his wife
out of detention and to avoid harassment.
The IJ found that Charnjit suffered past persecution on account of his
religion and political opinion, thus entitling Charnjit a rebuttable presumption
1 Manjeet, Krishan, and Simar filed claims that were derivative of Charnjit’s claims.
See 8 U.S.C. § 1158(b)(3)(A) (generally affording derivative asylee status to the spouse or
child of a person granted asylum).
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of future persecution. However, the IJ also found that the DHS rebutted the
presumption of future persecution by showing a fundamental change in
circumstances. Specifically, the IJ determined that “a twenty year span of
intermittent encounters with the Punjab police has evolved to little more than
extortion,” not persecution on the basis of political opinion. The IJ also noted
that more than 30 years had passed since the Indian government’s raid on its
Sikh citizens and more than 20 years had passed since Charnjit had been
politically active. Finally, the IJ observed that Charnjit left and returned to
India several times after 2004 and that his family did not have any police
encounters in the four years before their departure to the United States. 2
The Singhs appealed to the BIA on the basis that the IJ erred in ruling
that the DHS rebutted the presumption of future persecution. The Singhs
emphasized that the DHS did not present any evidence of its own other than
cross-examining Charnjit and Manjeet. The Singhs, however, did not appeal
the denial of withholding of removal or protection under the CAT. The BIA
dismissed the Singhs’ appeal because it concluded that the DHS had rebutted
the presumption of future persecution by establishing a change in
circumstances. 3 The Singhs timely filed a petition for review.
2 The IJ also determined that the Singhs could reasonably relocate to another part of
India, which further supported that the DHS rebutted the presumption of a well-founded
fear. The relocation issue is not before this court as the BIA expressly declined to address
this ground for denying relief.
3 The Singhs also challenged the IJ’s denial of humanitarian asylum before the BIA.
In contrast to a typical asylum claim, which requires a well-founded fear of future
persecution, “humanitarian asylum” may be granted for an alien without a well-founded fear
of persecution who has shown (1) “compelling reasons for being unwilling or unable to return
to the country arising out of the severity of the past persecution” or (2) “a reasonable
possibility that he or she may suffer other serious harm upon removal to that country.”
8 C.F.R. § 1208.13(b)(1)(iii); see also Matter of L-S-, 25 I. & N. Dec. 705, 710 (BIA 2012). The
BIA, however, concluded that the Singhs waived any challenge to the denial of humanitarian
asylum by failing to make specific arguments about the issue in their notice of appeal and by
failing to address the issue in their brief. The Singhs’ opening brief in support of the petition
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II.
We have “the authority to review only the BIA’s decision, not the IJ’s
decision, unless the IJ’s decision has some impact on the BIA’s decision.” Wang
v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). We review factual findings for
substantial evidence and “may not reverse the BIA’s factual findings unless
the evidence compels it.” Id. at 536–37; 8 U.S.C. § 1252(b)(4)(B) (“[T]he
administrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary”).
III.
In their petition for review, the Singhs contend that the BIA should have
granted asylum because the DHS failed to rebut the presumption of future
persecution. We disagree and hold that substantial evidence supports the
BIA’s denial of the Singhs’ application for asylum.
To establish an asylum claim, an alien must show that he is “unable or
unwilling to return to . . . [his native] 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). An alien typically bears the burden of establishing
that he or she is entitled to asylum. 8 C.F.R. § 208.13(a). The alien may qualify
for asylum because of past persecution or because of a well-founded fear of
future persecution. Id. § 208.13(b). If the alien establishes that he has suffered
past persecution, then he is also “presumed to have a well-founded fear of
persecution.” Id. § 208.13(b)(1). Nevertheless, “an immigration judge, in the
exercise of his or her discretion, shall deny the asylum application of an alien
for review does not address the BIA’s conclusion that they waived the humanitarian asylum
issue. Therefore, we will not address this issue. See Fed. R. App. P. 28(a)(8)(A) (requiring
opening briefs to contain an “appellant’s contentions and the reasons for them”); Maria S. ex
rel. EHF v. Garza, 912 F.3d 778, 782 n.3 (5th Cir. 2019).
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found to be a refugee on the basis of past persecution” if the DHS rebuts the
presumption of future persecution by establishing one of two conditions by “a
preponderance of the evidence.” Id. § 208.13(b)(1)(i). First, the DHS may rebut
the presumption of future persecution if it can show that “[t]here has been a
fundamental change in circumstances such that the applicant no longer has a
well-founded fear of persecution in the applicant’s country of nationality . . . .”
Id. § 208.13(b)(1)(i)(A). Second, the DHS may rebut the presumption by
showing that “[t]he applicant could avoid future persecution by relocating to
another part of the application’s country of nationality . . . .” Id.
§ 208.13(b)(1)(i)(B).
Here, because the IJ concluded that Charnjit suffered past persecution
for his religion and political opinion, the Singhs were entitled to the
presumption of future persecution. See id. § 208.13(b)(1). The DHS bore the
burden of rebutting that presumption by showing either that a fundamental
change in circumstances has occurred or that it would be reasonable to relocate
to a different part of India. See id. § 208.13(b)(1)(i). The BIA determined that
the DHS rebutted the presumption by showing that the circumstances have
fundamentally changed.
Substantial evidence supports the BIA’s conclusion. As adduced from
the DHS’s cross-examination of Charnjit, Charnjit was no longer politically
active after 1993. The Punjabi police stopped persecuting Charnjit for his
political opinion. Instead, Charnjit’s own testimony supports the conclusion
that the Punjabi police mistreated him and his family to extort money. Indeed,
as the IJ observed, the intermittent encounters with the Punjabi police over a
twenty-year period evolved into none other than extortion. Extortion is not a
cognizable form of persecution under immigration law. Ramirez-Mejia v.
Lynch, 794 F.3d 485, 493 (5th Cir. 2015); Castillo-Enriquez v. Holder, 690 F.3d
667, 668 (5th Cir. 2012). By showing that harm based on religious views and
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political activism turned into mere harm based on extortion, the DHS
sufficiently showed that the circumstances have fundamentally changed and
that the Singhs no longer have a well-founded of fear of persecution on account
of Charnjit’s political opinion. Thus, the BIA’s finding of changed
circumstances is supported by substantial evidence.
The Singhs resist this conclusion on three grounds, none of which is
persuasive. First, the Singhs argue that the DHS failed to meet its burden.
Specifically, the Singhs contend that the DHS can rebut the presumption of
future persecution only by affirmatively submitting its own evidence into the
record. In their view, because the DHS merely cross-examined Charnjit, this
was insufficient to rebut the presumption. We reject this argument. At
threshold, the preponderance-of-the-evidence standard does not turn on the
“the greater number of witnesses” or quantity of documentary evidence
“testifying to a fact”; instead, it turns on “[t]he greater weight of the evidence.”
Blue Br. at 14 (quoting Preponderance of the Evidence, Black’s Law Dictionary
(9th ed. 2009)). And as the Singhs concede in their brief to this court, cross-
examination of a witness constitutes testimonial evidence in the record. Blue
Br. at 17, 19. Accordingly, the DHS’s reliance on cross-examination, although
not voluminous, can sustain the DHS’s burden of proof as long as the testimony
is legally sufficient. Moreover, the argument that the DHS must affirmatively
submit its own documentary evidence or summon its own witnesses is belied
by the text of the regulation, which simply requires the DHS to rebut the
presumption by the preponderance of the evidence, not by its evidence. See 8
C.F.R. § 208.13(b)(1)(ii). Therefore, we see no error with the Board’s conclusion
that the DHS met its burden.
Second, the Singhs argue that the IJ allegedly unfairly participated in
cross-examination and violated due process by shifting the burden of proof
when he found that the DHS carried its burden without submitting its own
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evidence. The Singhs did not raise these arguments before the BIA but have
raised them for the first time in their petition for review before us. We lack
jurisdiction to address issues that were not raised before the BIA. Omari v.
Holder, 562 F.3d 314, 319 (5th Cir. 2009) (“[F]ailure to exhaust an issue
deprives this court of jurisdiction over that issue.”). Thus, we will not address
this argument.
Third, the Singhs contend that the IJ’s analysis—later affirmed by the
BIA—failed to account for mixed motives on the part of the Punjabi police. In
the Singhs’ view, the police harmed Charnjit both for money and due to his
political and religious views. See 8 U.S.C. § 1158(b)(1)(B)(i) (requiring that
persecution based on a protected ground be “at least one central reason” for the
persecution). The Singhs never presented this argument to the BIA, either,
and we lack jurisdiction to address this issue. See Omari, 562 F.3d at 319.
Thus, we will not address this argument.
IV.
We DENY the petition for review.
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