Filed: Oct. 04, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 10-4-2006 Singh v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-4884 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Singh v. Atty Gen USA" (2006). 2006 Decisions. Paper 359. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/359 This decision is brought to you for free and open access by the Opinions of t
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 10-4-2006 Singh v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-4884 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Singh v. Atty Gen USA" (2006). 2006 Decisions. Paper 359. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/359 This decision is brought to you for free and open access by the Opinions of th..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
10-4-2006
Singh v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4884
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Singh v. Atty Gen USA" (2006). 2006 Decisions. Paper 359.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/359
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-4884
________________
TEJINDER SINGH,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
(Agency No. A79-142-124)
Immigration Judge: Honorable Esmeralda Cabrera
__________________________
Submitted Under Third Circuit LAR 34.1(a)
October 2, 2006
BEFORE: SLOVITER, SMITH and VAN ANTWRPEN, CIRCUIT JUDGES
(Filed October 4, 2006)
_________________
OPINION
_________________
PER CURIAM
Petitioner Tejinder Singh, a native and citizen of India, and a Sikh by religion,
entered the United States without inspection in 1995. He was placed in removal
proceedings under Immigration & Nationality Act § 212(a)(6)(A)(i) (present without
being admitted or paroled), and § 212(a)(7)(A)(i) (no valid entry documents). Singh
applied for withholding of removal and deferral of removal under the Convention Against
Torture, claiming that he had been persecuted and tortured in India for his political beliefs
and activities on behalf of the All Indian Sikh Student Federation. He withdrew his
application for asylum because it was untimely.
At his removal hearing, Singh testified that he joined the AISSF in 1993. The
Indian police first arrested him in June 1994, the day after a political rally at which party
leaders criticized the government. He was stripped, beaten, interrogated for three days,
and ordered to renounce his party, and only released when his father, a local farmer, paid
a bribe. He was hospitalized for three days. In January 1995, he was arrested while
distributing pamphlets at a rally. He was held for 8 days and tortured. Again his father
obtained his release by paying a bribe. After this incident, his family arranged for him to
travel to New York via Canada. Singh’s mother and father still live in India with his two
sisters. Singh has learned from them that the police have raided the family house since
his departure.
On October 1, 2003, the Immigration Judge denied relief. She did not completely
believe Singh for a number of reasons, but she also concluded, that, even if he was telling
the truth, he had not met his burden of proof. The IJ cited the following things as either
damaging his credibility or weakening his case: he waited eight years after arriving in the
U.S. to apply for relief, he had no letter from his family supporting his claim, he did not
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appear to be a practicing Sikh in that he had no beard and did not wear a turban, and his
written application did not mention that he had been hospitalized after his first arrest.
On May 3, 2005, the Board of Immigration Appeals affirmed without opinion
pursuant to 8 C.F.R. § 1003.1(e)(4). Singh did not file a petition for review of this
decision, filing instead a motion to reopen removal proceedings due to changed country
conditions, 8 C.F.R. § 1003.2(c)(1). He asserted that the Congress Party, under whose
rule Operation Blue Star took place,1 was back in power in the Punjab and that Sikhs once
again were being persecuted. He also attached press coverage of the arrest of Mr.
Simranjit Singh Mann, President of the Akali Dal (Amritsar), and other party officials, on
June 14, 2005, on charges of sedition for making inflammatory pro-Khalistan speeches.
On October 17, 2005, the BIA denied the motion, concluding that a motion to
reopen will not be granted unless the evidence sought to be offered establishes a prima
facie eligibility for relief, see Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94,
110 (1988); In re: Coelho, 20 I & N Dec. 464, 472 (BIA 1992), a showing Singh had not
made. The BIA reasoned that Singh had not rebutted the testimonial discrepancies noted
by the IJ nor had he rectified the insufficient evidence problem concerning whether he is
a Sikh. In addition, the BIA reasoned that, although there was new evidence that the
president of Akali Dal and some Sikh activists had been arrested on charges of sedition,
there was no evidence of a pattern or practice of persecuting Sikhs or members of the
1
Operation Blue Star was an attack on the Golden Temple on May 31, 1984 during
which many Sikhs were killed.
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AISSF, and no persuasive evidence that Sikhs cannot relocate safely to another part of the
country.
Singh timely petitioned for review of the BIA decision denying his motion to
reopen. In his brief on appeal he contends that he testified credibly that he is a Sikh;
Amrit Dhari adhere to the five tenets, but he is Sahij Dhari and is not required to grow a
beard. Moreover, the BIA erred in concluding that his new evidence does not establish a
prima facie case of persecution.
We will deny the petition for review. We do not have jurisdiction to review the
BIA’s May 3, 2005 decision, because Singh did not file a timely petition for review of
that decision. Stone v. Immigration & Naturalization Serv., 514 U.S. 386, 398-99 (1995).
When a motion to reopen is denied on the ground that the alien failed to demonstrate
prima facie eligibility for the substantive relief sought, we review for abuse of discretion.
Immigration & Naturalization Serv. v. Doherty,
502 U.S. 314, 323 (1992). Under this
standard, we will reverse the BIA’s decision only if it is arbitrary, irrational, or contrary
to law. See Guo v. Ashcroft,
386 F.3d 556, 562 (3d Cir. 2004). The prima facie standard
for a motion to reopen requires the applicant to produce objective evidence showing a
reasonable likelihood that he can establish that he is entitled to relief. Sevoian v.
Ashcroft,
290 F.3d 166, 175 (3d Cir. 2002).
The standard for withholding of removal is stringent. Under INA § 241(b)(3)(A),
8 U.S.C. § 1231(b)(3)(A), "the Attorney General may not remove an alien to a country if
the Attorney General decides that the alien's life or freedom would be threatened in that
4
country because of the alien's race, religion, nationality, membership in a particular social
group or political opinion." The alien must establish by a "clear probability" that his life
or freedom would be threatened in the proposed country of deportation. Immigration &
Naturalization Serv. v. Stevic, 467 U.S. 407 (1984). To prevail on a claim under the
Convention Against Torture an applicant must “establish that it is more likely than not
that he or she would be tortured if removed to the proposed country of removal.” 8
C.F.R. § 1208.16(c)(2).
The BIA applied the proper standards and did not abuse its discretion in denying
Singh’s motion to reopen. Its reasons were cogent and consistent with the record
evidence. The IJ had valid concerns with respect to whether Singh had met his burden of
proof that were not addressed by the motion to reopen, and have not been addressed on
appeal, specifically, the absence of corroboration from Singh’s family in view of their
availability and active role in his life. See Mulanga v. Ashcroft, 349 F.3d 123, 136 (3d
Cir. 2003). Moreover, the BIA rightly found that Singh’s new evidence, which described
the arrest of national leaders, does not warrant reopening. We note that the new evidence
shows that hundreds of Sikhs who protested the arrests publicly were allowed to do so
without repercussions.
We will deny the petition for review.
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