Case: 09-60307 Document: 00511197011 Page: 1 Date Filed: 08/06/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 6, 2010
No. 09-60307
Lyle W. Cayce
Clerk
BALJIT SINGH,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. Attorney General
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A078 197 055
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Baljit Singh, a native and citizen of India, petitions this court to review a
Board of Immigration Appeals decision denying his motion to reopen removal
proceedings, a familiar posture for Singh in this court.1 A Sikh who lived in
Punjab before coming to America, Singh claims to have new evidence that – due
to political persecution – he cannot safely return to India. He did not persuade
the Board of changed circumstances, and we deny relief, finding the Board acted
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
1
See Singh v. Gonzales, 161 F. App’x 373 (5th Cir. 2006) (unpublished).
Case: 09-60307 Document: 00511197011 Page: 2 Date Filed: 08/06/2010
No. 09-60307
within its discretion. Just like the last time he came before us, “Singh has failed
to show that there is a reasonable likelihood that he would be granted relief at
the reopened hearing.” 2
I.
After journeying halfway around the world, Singh was caught sneaking
into the United States from Mexico in 2000. He applied for asylum, withholding
of removal, and protection under the Convention Against Torture.3 Singh
testified before an Immigration Judge that the police in India thrice arrested
and tortured him – and continue to look for him. Singh provided supporting
affidavits from his father and a local elder. The Immigration Judge found Singh
not to have testified in a credible manner: although Singh was a politically active
Sikh, he failed to convince with the stories of arrest and torture. The Judge
rejected the father’s and elder’s affidavits because, although neither knows
English, each affidavit was “in English without any indication that the
documents were read to either one of the affiants in their native language and
that they [were] satisfied that the documents are true and correct.”4
2
Id. at 374 (citing Guevara Flores v. INS, 786 F.2d 1242, 1247 (5th Cir. 1986)).
3
To prevail on his claim for asylum, Singh had to prove that he could not return to
India due to “a well-founded fear of persecution . . . on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 C.F.R. § 1208.13(b); 8 U.S.C.
§ 1101(a)(42) (defining “refugee”). Withholding of removal under 8 U.S.C. § 1231(b)(3) requires
even more – a probability of persecution. See Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002).
And, “[u]nlike the asylum and withholding of removal provisions, [Convention Against
Torture] regulations do not require that the reason for the torture fall within one of the five
categories of race, religion, nationality, membership in a particular social group, or political
opinion. Another difference is that CAT does not require persecution, but the higher bar of
torture.” Id. at 907.
4
The Immigration Judge found in the alternative – even if it “could conclude that
[Singh’s] testimony were credible concerning his prior arrests” – the police questioned Singh
2
Case: 09-60307 Document: 00511197011 Page: 3 Date Filed: 08/06/2010
No. 09-60307
The Board summarily affirmed the Immigration Judge without opinion,
and Singh did not seek review in this court. He did, however, submit a motion
to reopen, which the Board denied; on petition, this court too denied relief.5
Singh filed a second and third motion to reopen, each of which the Board denied.
On March 19, 2009, Singh filed a fourth motion to reopen, alleging that police
throughout 2007 and 2008 had raided his father’s house in Punjab, arrested him,
and demanded to know Singh-the-younger’s whereabouts. The police wanted to
interrogate the son about a recent bombing. Singh gave the Board an updated
version of the same story he had told the Immigration Judge and submitted an
updated version of his father’s English-language affidavit. Singh included what
he claims is a Punjabi police summons left with his father. The Board denied
the fourth motion, explaining that Singh had the burden of presenting evidence
of changed circumstances to warrant reopening, but that – “[i]n light of the
adverse credibility finding of the Immigration Judge” – Singh had not submitted
sufficiently reliable new evidence. Singh petitions us to reopen his asylum
claim.6
“in connection with a criminal investigation . . . relating to the assassination of a local official,”
considering Singh a suspect. Additionally, Singh did not have a fear of persecution throughout
all of India.
5
See Singh v. Gonzales, 161 F. App’x 373 (5th Cir. 2006) (unpublished).
6
Despite our policy of liberally construing pro se litigants’ briefs and applying less
stringent standards to parties proceeding pro se than to parties represented by counsel, pro
se parties must still brief the issues and reasonably comply with the standards of Federal Rule
of Appellate Procedure 28 (which requires the brief to contain a statement of the issues and
an argument). Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995); Yohey v. Collins, 985 F.2d
222, 224–25 (5th Cir. 1993). Singh in a couple of places has not met the requirements.
Singh filed a fifth motion to reopen on June 16, 2009, which the Board denied. Singh
sought review in this court. We consolidated the petitions seeking review of his fourth and
fifth motions to reopen, but Singh has not briefed any issues relating to his fifth motion,
3
Case: 09-60307 Document: 00511197011 Page: 4 Date Filed: 08/06/2010
No. 09-60307
II.
“[M]otions to reopen deportation proceedings are disfavored, and the
moving party bears a heavy burden.”7 We review the denial of a motion to
reopen “under a highly deferential abuse-of-discretion standard,”8 upholding the
Board’s decision so long as it is not capricious, racially invidious, without
foundation in the evidence, or otherwise so irrational that it is arbitrary rather
than the result of any perceptible rational approach.9
Singh does not dispute that his fourth motion to reopen was both untimely
and numerically barred. However, the rules against untimeliness or multiplicity
do not apply where the alien bases his motion to reopen an asylum or
withholding of deportation claim upon “changed circumstances arising in the
country of nationality or in the country to which deportation has been ordered,
if such evidence is material and was not available and could not have been
discovered or presented at the previous hearing.”10 The Board found that Singh
did not carry this burden.
abandoning them. The omission does not matter, though, as Singh’s fourth and fifth motions
to reopen raise identical issues.
And, other than stating the standards of review for his withholding of removal and
Convention Against Torture claims, Singh does not argue their merits. Again, omissions
without consequence: Singh failed on his asylum claim because he did not prove reasonable
fear of persecution or torture, dooming the other claims.
7
Altamirano-Lopez v. Gonzales, 435 F.3d 547, 549 (5th Cir. 2006) (quotation marks
omitted).
8
Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005).
9
Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006).
10
8 C.F.R. § 1003.2(c)(3)(ii); see also Panjwani v. Gonzales, 401 F.3d 626, 632 (5th Cir.
2005).
4
Case: 09-60307 Document: 00511197011 Page: 5 Date Filed: 08/06/2010
No. 09-60307
III.
Here, we “reasonably infer that the Board denied the motion to reopen
based on the second ground enumerated in INS v. Abudu: ‘the movant has not
introduced previously unavailable, material evidence.’”11 In fact, the Board
explained that Singh produced no evidence. The Immigration Judge previously
found Singh’s father’s first affidavit lacking because it was in English, a ruling
Singh never challenged. The father’s new affidavit – the one purporting to
describe recent harassment – is also in English.12 The passage of time does not
make any less incredible an English affidavit for a non-English speaker. Instead
of presenting something new to counter the underlying adverse credibility
determination, Singh pounded away with the same tools.13
11
Manzano-Garcia v. Gonzales, 413 F.3d 462, 468 (5th Cir. 2005) (quoting INS v.
Abudu, 485 U.S. 94, 104–05 (1988)) (internal citation omitted).
12
Unlike the first affidavit, the father’s new one does contain a hard-to-decipher stamp
stating that the affidavit has been read to the deponent who “seemed” to understand. This
unattributable, after-the-fact mark does not address the Immigration Judge’s language barrier
concerns, as the father still has not indicated that the affidavit was ever translated into
Punjabi. The document does not independently reflect that it was, to use the Immigration
Judge’s words, “originally prepared in any other language and then translated.” By way of
contrast, Baljit Singh’s own affidavit to the Board swears that “the above statement has been
read to me in English and Punjabi and I verify its contents to be true and correct in its
entirety.”
13
Despite Singh’s protestations, we have in persuasive unpublished cases held as we
do here – that the Board does not abuse its discretion by basing its denial of a motion to reopen
on an Immigration Judge’s prior adverse credibility ruling. See Mir v. Gonzales, 207 F. App’x
498, 498–99 (5th Cir. 2006) (unpublished) (“Mir also contends that the BIA’s denial of the
motion to reopen was an abuse of discretion because it erroneously found the new evidence to
be incredible, erroneously relied on the Immigration Judge’s (IJ) original negative credibility
determinations to so find, and failed to examine the requisite factors for assessing credibility
on the record. . . . The assertion that the BIA erred in referring to the IJ’s original negative
credibility determination is without merit. Mir’s complaint that the BIA erred in failing to
explain its rejection of the new evidence in greater detail in the order denying the motion to
reopen is similarly unavailing as the BIA has no duty to write an exegesis on every
5
Case: 09-60307 Document: 00511197011 Page: 6 Date Filed: 08/06/2010
No. 09-60307
This left Singh with a police summons to establish changed circumstances.
The Board rejected the foreign document as unreliable, because Singh had not
authenticated it pursuant to 8 C.F.R. § 287.6. In a persuasive unpublished
opinion reviewing a motion to reopen, we have said the Board does not abuse its
discretion when it decides not to consider unauthenticated foreign documents.14
In yet another unpublished opinion, we upheld the Board’s rejection of foreign
documents in light of an Immigration Judge’s “prior adverse credibility
determination.”15 This trend – which we continue here – finds support in a
published Second Circuit case holding that the Board may reject
unauthenticated documents in light of an Immigration Judge’s previous negative
credibility determination.16 In any event, Singh does not make clear how a police
summons, without more,17 establishes either a change in circumstances or
contention.” (citation and quotation marks omitted)); Kindia v. Gonzales, 155 F. App’x 752, 753
(5th Cir. 2005) (unpublished) (“Finally, Petitioners argue that the BIA abused its discretion
when it declined to reopen their case in light of new evidence that [Petitioner’s] husband
collaborated with rebels. The BIA’s decision was not an abuse of discretion given the IJ’s
negative credibility determinations and absent any corroboration of [Petitioner’s] new story.”
(citation omitted)).
14
Qi Hua Li v. Holder, 354 F. App’x 46, 48 (5th Cir. 2009) (unpublished).
15
Chun Lin Yang v. Mukasey, 305 F. App’x 232, 234 (5th Cir. 2008) (unpublished).
16
Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146–47 (2d Cir. 2007).
17
Although Singh submitted documents about general conditions in Punjab, none
reveal changed conditions. For example, a letter from the President of a Sikh political party
explains: “Sikh youth, since 1984, continue to be in prisons. Our struggle for freedom and
liberty continues. Though there is a change in the political leadership at the federal level in
the country, there is no change in either the attitude or role of the present government
towards the Sikh and other minorities. No religious, social, economic or political problem of
Punjab has been resolved.” And an article about human rights in India describes the Sikhs’
“continuing struggle” over the last 25 years. In any event, the Board rejected Singh’s case not
because of the conditions in India, but because it found Singh’s own story unbelievable.
6
Case: 09-60307 Document: 00511197011 Page: 7 Date Filed: 08/06/2010
No. 09-60307
reasonable fear of persecution.
IV.
The Board did not abuse its discretion in refusing to reopen Singh’s case
when he presented no material, previously unavailable evidence of changed
circumstances. Nothing capricious, racially invidious, or arbitrary here. Singh
almost a decade ago pleaded to the Immigration Judge that the police in his
village harass his father and hunt for him – falsely accusing him of aiding
militants. Now Singh looks to reopen his case, again urging that the police in
his Punjabi village harass his father and seek to detain him – falsely accusing
him of militant activities. Instead of describing a change in circumstances,
Singh offers more of the same. The Board found Singh’s story and documentary
support not credible the first time, yet, in his motion to reopen, Singh recycles
the old evidence without curing the flaws.
DENIED.
7