Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-2008

Singh v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1414




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                      No. 07-1414
                                      ___________

                                   PRITPAL SINGH,
                                                       Petitioner
                                            v.

                            ATTORNEY GENERAL USA,
                                              Respondent
                                 ____________

                        On a Petition For Review of an Order
                        of the Board of Immigration Appeals
                              Agency No. A95-405-653
                   Immigration Judge: Honorable Daniel A. Meisner
                                   _____________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 March 17, 2006
              Before: RENDELL, JORDAN and ROTH, Circuit Judges

                             (Opinion filed: May 28, 2008)
                                    ___________

                                       OPINION
                                      ___________


PER CURIAM

      Pritpal Singh, a native and citizen of India and Sikh by religion, entered the United

States at Blaine, Washington in October 2001 without being admitted or paroled. He

applied for, and was granted, asylum in San Francisco in 2002. However, his asylum
status was revoked, see 8 C.F.R. § 208.24(a)(1), when it was discovered that the

individuals who prepared his application, Boota Singh Basi and Kashmir Singh Malhi,

pleaded guilty in federal district court to submitting fraudulent asylum applications for

Sikhs in San Francisco. These individuals solicited Indians from New York and New

Jersey to file asylum applications in San Francisco, where asylum was liberally granted.

The applicants were coached to create or exaggerate claims of torture and abuse by police

in India. Singh was served with a Notice of Intent to Terminate Asylum Status at his

Mantua, New Jersey address and offered an interview to respond to the charges that his

asylum status was subject to revocation. The Notice stated that the preparers of Singh’s

asylum application had executed a plea agreement admitting to making fraudulent claims

of torture and submitting fraudulent documents in support of the allegations of torture.

Singh failed to appear.

       On June 7, 2004, Singh was served with a Notice to Appear, which charged him as

removable under Immigration & Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. §

1182(a)(6)(A)(i), as an alien who is present in the United States without being admitted or

paroled. Singh then submitted a second application for asylum, reciting the same set of

events detailed in the first asylum application. As in his first application, he claimed that

he had been persecuted in India because of his political beliefs and activities on behalf of

the Akali Dal Mann political party. The State Department’s 2004 Country Reports on

Human Rights Practices for India and other background information was submitted to the



                                              2
Immigration Judge. In addition, Singh gave testimony at his removal hearing. The

Immigration Judge denied relief. He reasoned that, because Singh’s second asylum

application was identical to his first, an application that was presumed to be fraudulent,

he should submit corroborating evidence that was not tainted.1 In addition, background

information contained in the record indicated that rank-and-file members of Akali Dal

Mann do not now face persecution in India.

       On appeal to the Board of Immigration Appeals, Singh contended that he should

not be held responsible for the actions of criminals and that his membership in Akali Dal

Mann was a proper basis for finding a well-founded fear of future persecution. The

Board, however, found no reason to disturb the IJ’s conclusion that Singh had not

sustained his burden of proof, holding further that it was reasonable to expect untainted

corroboration under the unique facts of Singh’s case. Singh could not corroborate his

claim that he was tortured. In addition, his testimony concerning where he was living and

working when he first applied for asylum was not convincing, and he failed to submit

documentary evidence that he actually was living and working in Modesto, California.

He did not submit an affidavit from the leader of the temple where he purportedly resided,

and he did not document the part-time job he allegedly held from December 2001 until



  1
    Singh’s first asylum application was supported by an affidavit from his father, which
stated that Singh had been arrested and tortured by police on September 16, 2000 and
June 20, 2001, and only released after a bribe was paid, and arrested again on August 20,
2001, but he managed to escape. It also was supported by an affidavit from Gurmit Kaur,
in which he stated that he had assisted Singh’s father in bribing the police.

                                             3
June 2002. On January 10, 2007, the Board dismissed his appeal. Singh has petitioned

for review.2

         We will deny the petition for review. We have jurisdiction to review final orders

of removal under INA § 242(a)(1), 8 U.S.C. § 1252(a)(1). We generally only review final

orders of the Board when the Board issues a decision on the merits. See Li v. U.S.

Attorney General, 

, 162 (3d Cir. 2005); Abdulai v. Ashcroft, 

,

548-49 (3d Cir. 2001). Where the Board adopts the reasoning of the IJ with some

discussion of the bases for the IJ's decision, we also review the order of the IJ. Chen v.

Ashcroft, 

, 222 (3d Cir. 2004). Under the substantial evidence standard, the

Board’s factual findings must be upheld if they are supported by reasonable, substantial

and probative evidence on the record considered as a whole. Immigration &

Naturalization Serv. v. Elias-Zacarias, 

, 481 (1992).

         Pursuant to 8 U.S.C. § 1158(a) and § 1101(a)(42)(A), the Attorney General may, in

his discretion, grant asylum to an alien who is unable or unwilling to return to his home

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. Id.;

Abdille v. Ashcroft, 

, 482 (3d Cir. 2001). An alien who establishes past

persecution enjoys a presumption of a well-founded fear of future persecution, Lukwago

v. Ashcroft, 

, 174 (3d Cir. 2003), but, if the alien cannot show past



  2
      A motions panel of this Court previously denied Singh a stay of removal.

                                              4
persecution, he may still establish a well-founded fear of future persecution by

demonstrating a subjective fear of persecution, and that a reasonable person in the alien’s

circumstances would fear persecution if returned to the country in question, Zubeda v.

Ashcroft, 

, 469 (3d Cir. 2003). To be entitled to withholding of removal to a

particular country, an applicant must demonstrate a clear probability of persecution.

Immigration & Naturalization Serv. v. Stevic, 

(1984); 8 U.S.C. §

1231(b)(3).

       An applicant for asylum and withholding of removal bears the burden of proof. 8

U.S.C. § 1158(b)(1)(B)(i). Despite Singh’s claim to the contrary, his application was not

denied on the basis that the original preparers pleaded guilty to asylum fraud. Instead, the

Board reasonably demanded corroboration in view of the suspect nature of the original

application. The Board may require even a credible applicant to provide evidence

corroborating the specifics of his or her testimony if it is reasonable to expect the

applicant to do so, 

. To determine whether corroboration is

required, a court must (1) identify facts for which it is reasonable to expect corroboration,

(2) determine whether the applicant has presented corroborating evidence, and if not, (3)

determine whether the applicant has adequately explained why he was unable to do so.

re S-M-J-, 21 I. & N. Dec. 722 (1997)).

       In Singh’s case the Board’s reasoning meets the minimum requirements outlined in

Abdulai. The corroboration that was required was reasonable in its relevance to the claim



                                              5
and in Singh’s ability to acquire it. The Board was not required to ignore the

circumstances of the original application in view of the fact that the second application

was nearly identical to the first. In Mulanga v. Ashcroft, 

(3d Cir. 2003), we

found that the IJ erred by not alerting the alien during the removal proceedings that the

absence of corroboration would lead to the denial of her application, thereby giving her

an opportunity to explain her inability to corroborate. 

Although the IJ did not

mention corroborating evidence in Singh’s case, any error in this regard was not

significant, because the plea agreement was submitted as an exhibit at the removal

hearing, and it details how Mr. Boota Singh Basi and his partner prepared false or

exaggerated claims of torture and abuse by police in India for the applicants to tell the

asylum officers, and how they provided the applicants with lists of documents to obtain

from India and urged them to falsify affidavits. In addition, when the two realized they

were being investigated, they discouraged their clients from attending their asylum

interviews. Thus, it was clear that more was required from Singh in establishing his

claim for asylum than repeating his original assertions.

       We consider the record as a whole in reviewing the Board’s decision,

, and, as such, there is substantial evidence supporting the

Board’s holding that Singh failed to sustain his burden of proof for asylum. In addition,

Singh’s documentary background evidence does not demonstrate a well-founded fear of

future persecution should he return to India. The IJ properly relied on the Country Report



                                              6
for India from the State Department in concluding that low-level members of Akali Dal

Mann are not currently the target of persecution. We thus uphold the Board’s

determination that Singh does not qualify for asylum or withholding of removal.3

      We will deny the petition for review.




  3
    In addition to denying asylum and withholding of removal, the IJ denied relief under
the Convention Against Torture. Singh did not contest the denial of his CAT application
when he appealed to the Board. We thus lack jurisdiction to consider this unexhausted
claim. 8 U.S.C. § 1252(d)(1) (2006); Bonhometre v. Gonzales, 

, 447 (3d
Cir. 2005).

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