Singh v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 14 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GURPREET SINGH, No. 22-640
Agency No.
Petitioner, A205-935-323
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 8, 2023**
Seattle, Washington
Before: HAWKINS, BEA, and BRESS, Circuit Judges.
Gurpreet Singh (“Singh”) seeks review of the Board of Immigration
Appeals (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of his
applications for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). We deny the petition.
*
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).
Substantial evidence supports the agency’s determination that Singh lacked
credibility. The IJ found Singh was not credible, based in part on his overall
demeanor (including a lack of responsiveness to his own attorney’s questions),
and also because Singh appeared to have memorized the information from his
application, including very specific dates, but could not recall or give any
additional details in response to basic follow-up questions about these events.
The BIA added that Singh had difficulty explaining “who he feared in India, how
he came to know and obtain a statement from the stranger who brought him to
the hospital, why or how people from the opposing parties would seek to harm
him, why he did not file a police report after being beaten but chose to file a report
after receiving phone calls, and the names of people in his political party, with
whom [Singh] consulted about his continuing activities.” The record does not
compel the conclusion that Singh was credible. INS v. Elias-Zacarias, 502 U.S.
478, 483‒84 (1992).
In the alternative, substantial evidence also supports the IJ’s conclusion
that even if Singh were credible, the minor, sporadic incidents he recounted were
unfortunate harassment but did not rise to the level of persecution. See Wakkary
v. Holder, 558 F.3d 1049, 1059 (9th Cir. 2009) (“Persecution is an extreme
concept that does not include every sort of treatment our society regards as
offensive.” (quotation omitted)); Haxha v. Ashcroft, 319 F.3d 1179, 1181‒82 (9th
Cir. 2003) (unfulfilled threats and one beating where respondent suffered facial
bruising and broken ribs did not compel finding of persecution). The record also
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supports the IJ’s conclusion that Singh did not demonstrate that the phone callers
had the “will or ability to carry out [the] threats.” See Kaiser v. Ashcroft, 390
F.3d 653, 658 (9th Cir. 2004).
Moreover, the IJ also found that Singh could safely relocate within India,
and that it was reasonable for him to do so. See Hussain v. Rosen, 985 F.3d 634,
648‒49 (9th Cir. 2021) (failure to demonstrate country-wide targeted
persecution). Contrary to Singh’s contentions, the IJ did not determine that Singh
could relocate by hiding his political beliefs; instead, as the BIA explained, there
was no evidence in the record suggesting that “political parties throughout India
would target a low-level supporter of the Mann party, such as the respondent.”
With no past persecution and an ability to relocate within India, substantial
evidence supports the agency’s alternative conclusion that Singh had not
demonstrated a well-founded fear of future persecution, and the agency properly
denied Singh’s claims for asylum and withholding of removal.
Substantial evidence also supports the denial of Singh’s CAT claim. The
IJ concluded Singh was not credible, but even if he were, that he had not been
tortured or demonstrated a likelihood of torture in the future, or that it was more
likely than not that the Indian government would consent or acquiesce to his
torture. See B.R. v. Garland, 26 F.4th 827, 845 (9th Cir. 2022) (assertions of
police corruption and ineffectiveness were insufficient to establish that a public
official would more likely than not acquiesce to torture).
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In his petition to this court, Singh adds an additional claim that the BIA
abused its discretion and violated due process by denying his last-minute request
for additional time to file a brief. Singh sought the extension to (1) review this
court’s decision in Akosung v. Barr, 970 F.3d 1095 (9th Cir. 2020), and (2) to
obtain records of Singh’s visit to an emergency room immediately following his
merits hearing, which counsel argued would show Singh was sleep-deprived and
suffering from insomnia for weeks prior to the hearing, helping to explain his
demeanor at his hearing. The BIA did not abuse its discretion in denying this
untimely request. Zetino v. Holder, 622 F.3d 1007, 1013 (9th Cir. 2010). Singh
had several months to review Akosung and almost two years to obtain the medical
records and did not present a compelling reason for why this could not be
accomplished by the date the brief was due.
Nor has Singh demonstrated a due process violation from the BIA’s denial
of his extension request, because he has failed to demonstrate prejudice from the
denial. See Gomez-Velazco v. Sessions, 879 F.3d 989, 993 (9th Cir. 2018). First,
Singh’s motion included arguments about the impact of Akosung, so it is unclear
how additional time could have impacted the outcome on that issue. Second,
even assuming that the emergency room records supported Singh’s explanation
of his demeanor on the date of the hearing, the IJ and BIA found alternative
reasons to deny relief even if Singh were credible, which would be unaffected by
this additional evidence. In addition, the BIA explained at some length that even
if the lack of sleep was a possible explanation for Singh’s demeanor at the
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hearing, the IJ’s conclusion that Singh had memorized a script from his
application but was unable to deviate/respond to additional questions was also
plausible and not clearly erroneous. Singh has thus not demonstrated a likelihood
that the outcome of the proceeding would have been different if the request to
extend the briefing schedule had been granted.
PETITION DENIED.
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