         11-2195-ag
         Singh v. Holder
                                                                                        BIA
                                                                                  Abrams, IJ
                                                                               A099 577 079
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 25th day of May, two thousand twelve.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                REENA RAGGI,
 9                PETER W. HALL,
10                     Circuit Judges.
11       _____________________________________
12
13       DALIP SINGH,
14                Petitioner,
15                                                              11-2195-ag
16                         v.                                   NAC
17
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Richard W. Chen, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Russell J. E. Verby, Senior
27                                     Litigation Counsel; Monica G.
28                                     Antoun, Trial Attorney, Office of
29                                     Immigration Litigation, Civil
30                                     Division, United States Department
31                                     of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review

 4   is DENIED.

 5       Dalip Singh, a native and citizen of India, seeks

 6   review of an April 29, 2011 decision of the BIA dismissing

 7   his appeal of the April 8, 2009 decision of Immigration

 8   Judge (“IJ”) Steven R. Abrams, denying his applications for

 9   asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).     In re Dalip Singh, No.

11   A099 577 079 (B.I.A. April 29, 2011), aff’g No. A099 577 079

12   (Immig. Ct. N.Y. City April 8, 2009).    We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history of this case.

15       Under the circumstances of this case, we have reviewed

16   the decision of the IJ as supplemented by the BIA.       See Yan

17   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).      The

18   applicable standards of review are well-established.

19   See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v.

20   Holder, 562 F.3d 510, 513 (2d Cir. 2009).     As a preliminary

21   matter, Singh has failed to sufficiently raise any challenge

22   to the agency’s denial of CAT relief.    We therefore address

23   only Singh’s claims regarding asylum and withholding of

24   removal.

                                  2
 1   I.   Past Persecution and a Well-Founded Fear of Persecution

 2        Singh asserts that he suffered past persecution at the

 3   hands of two groups: (1) Sikh militants who threatened him

 4   when he declined to join their Afghanistan contingent as a

 5   military expert; and (2) the Indian police who sought to

 6   investigate his ties to the Sikh militants.   However, as the

 7   agency reasonably found, the harm to which Singh testified

 8   did not rise to the level of persecution because Singh did

 9   not suffer any physical harm as a result of the militants’

10   unfulfilled threats and the police’s repeated visits to his

11   house.   See Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d

12   Cir. 2006)

13        The agency also reasonably found that the harm Singh

14   fears does not bear a nexus to a protected ground.   For

15   applications such as Singh’s, governed by the amendments

16   made to the Immigration and Nationality Act by the REAL ID

17   Act of 2005, a protected ground must be “one central reason”

18   for the applicant’s persecution.   See Rodas Castro v.

19   Holder, 597 F.3d 93, 103 (2d Cir. 2010).   One reason Singh

20   rejected the militants’ recruitment, his refusal to betray

21   his country, may constitute a political motive.   Cf. INS v.

22   Elias-Zacarias, 502 U.S. 478, 482 (1992) (finding that a



                                   3
 1   refusal to join guerillas because a fear of combat or

 2   retaliation from the government was not a political motive).

 3   However, he failed to establish that the militants believed

 4   that he refused their offer for any reason other than his

 5   desire to remain with his family, retain his pension, or

 6   avoid combat, which are not recognized as political

 7   motivations.   See id. at 482-83.

 8       Singh also failed to establish that the police sought

 9   to harm him or his family because they were Sikh because,

10   according to his testimony, the police sought to question

11   him only after receiving reliable information that anti-

12   government militants tried to recruit him.   Although Singh’s

13   wife paid the police to discontinue their investigation,

14   Singh testified that paying bribes to policemen in order to

15   secure their protection was done as a matter of course.     As

16   a result, the agency did not err in its conclusion that

17   Singh failed to demonstrate that the harm he fears would be

18   on account of a protected ground, and that he consequently

19   failed to demonstrate his eligibility for asylum and

20   withholding of removal.

21       Singh challenges the BIA’s finding that he could have

22   sought aid from his former military colleagues to protect


                                   4
 1   him from improper police harassment and that the Indian

 2   government was thus not unwilling or unable to protect him.

 3   Although the agency’s finding is questionable considering

 4   that the military cannot “control” the police, see Rizal v.

 5   Gonzales, 442 F.3d 84, 92 (2d Cir. 2006), remand would be

 6   futile because Singh failed to establish the requisite nexus

 7   between the harm he fears and a protected ground.   See Lin

 8   Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 117 (2d Cir.

 9   2007).

10   II. Due Process

11       Singh contends that the IJ’s assumption that the Indian

12   police’s investigation was legitimate without citation to

13   the record indicated a bias against him that improperly

14   influenced his decision.   To the contrary, the IJ made a

15   reasonable inference in the exercise of his fact-finding

16   powers based on Singh’s testimony that the police, after

17   receiving information that militants sought to recruit

18   Singh, sought to investigate the potential national security

19   threat.   See 8 U.S.C. § 1229A(b)(1); 8 C.F.R. §§ 1003.10(b),

20   1003.42(d) (providing that the IJ makes a de novo

21   determination based on evidence as to whether an alien

22   established a credible fear); Siewe v. Gonzales, 480 F.3d

23   160, 168-69 (2d Cir. 2007).


                                   5
 1   III.       Ineffective Assistance of Counsel Claim

 2          Singh also argues that he established that his previous

 3   counsel, Amy Gell, failed to timely submit documents,

 4   resolve inconsistencies in his application prior to its

 5   submission, and provide additional evidence of country

 6   conditions and his religion and, thus, prejudiced his case.

 7   Although, as the BIA pointed out, Singh met the procedural

 8   requirements outlined in Matter of Lozada, 19 I. & N. Dec.

 9   637 (BIA 1988), he failed to demonstrate that Gell’s

10   performance adversely impacted the IJ’s decision because:

11   (1) the IJ gave Singh additional opportunities to submit his

12   missing documents; (2) the IJ assumed his credibility

13   thereby making irrelevant the inconsistencies and omissions

14   in his application; (3) the IJ assumed his Sikh identity;

15   and (4) Singh did not provide evidence of country conditions

16   reports that Gell could have provided that would have

17   changed the outcome of his case.    See Rabiu v. INS, 41 F.3d

18   879, 882 (2d Cir. 1994).

19          For the foregoing reasons, the petition for review is

20   DENIED.    As we have completed our review, any stay of

21   removal that the Court previously granted in this petition

22   is VACATED, and any pending motion for a stay of removal in

23   this petition is DENIED as moot.    Any pending request for

                                    6
1   oral argument in this petition is DENIED in accordance with

2   Federal Rule of Appellate Procedure 34(a)(2), and Second

3   Circuit Local Rule 34.1(b).

4                                 FOR THE COURT:
5                                 Catherine O’Hagan Wolfe, Clerk
6
7




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