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Singh v. Barr

United States Court of Appeals, Fifth Circuit

April 3, 2019


          Petition for Review of an Order of the Board of Immigration Appeals

          Before STEWART, Chief Judge, and DAVIS and ELROD, Circuit Judges.


         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.


         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 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by the DHS, Charnjit stated that, at his wife's insistence, he "steered away from [the] Khalistan movement" and was no longer active in the movement after 1993.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 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.


         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").


         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 ...

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