                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          FEB 10 2005
                             FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

    BHUPINDER SINGH SONDH,

               Petitioner,

    v.                                            Nos. 03-9544 & 03-9582
    ALBERTO R. GONZALES, Attorney                 (D.C. No. A76-685-308)
    General, *                                     (Petitions for Review)

               Respondent.


                             ORDER AND JUDGMENT          **




Before SEYMOUR , KELLY , and McCONNELL , Circuit Judges.



        After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of these appeals.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases

are therefore ordered submitted without oral argument.


*
      On February 4, 2005, Alberto R. Gonzales became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Gonzales is substituted for John Ashcroft as the
Respondent in this action.
**
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Bhupinder Singh Sondh, a native and citizen of India, petitions for review

of two orders issued by the Board of Immigration Appeals (BIA). The first order

dismissed his appeal from an immigration judge’s (IJ) denial of asylum and

restriction on removal.   1
                              The second order denied Sondh’s motion to reopen, so

that he could apply for adjustment of status. We have jurisdiction pursuant to

8 U.S.C. § 1252(a), (b), and we deny both petitions for review.   2



       Sondh entered the United States in September 1996 as a visitor authorized

to stay for thirty days, but he never left. He was arrested about one year later,

placed in removal proceedings, and ultimately charged with being removable

pursuant to 8 U.S.C. § 1227(a)(1)(B), as an alien present in violation of United

States law. Shortly before his arrest, he married Denise Allen, who filed an

immediate relative visa petition on his behalf. That petition was denied after the

district director determined that the marriage had been entered into to evade the

immigration laws.


1
       “Restriction on removal was known as ‘withholding of removal’ prior to
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.”
Elzour v. Ashcroft , 378 F.3d 1143, 1148 n.5 (10th Cir. 2004). We refer to the
new statutory “restriction on removal” terminology in this order and judgment.
See 8 U.S.C. § 1231(b)(3).
2
      On March 1, 2003, the Immigration and Naturalization Service (INS)
ceased to exist. Its responsibilities were divided among three agencies within the
new Department of Homeland Security. Because the INS commenced the relevant
deportation proceedings, we refer to the relevant government agency as the INS.
Berrum-Garcia v. Comfort , 390 F.3d 1158, 1160 n.1 (10th Cir. 2004).

                                            -2-
      Thereafter, Sondh applied for asylum. At a hearing, he testified that he is a

Sikh from Punjab, India, where he was a member of the All India Sikh Student

Federation (AISSF) and experienced persecution due to his Sikh religion and his

political involvement in the AISSF. He joined the AISSF after his brother, an

active AISSF member and alleged militant, was murdered in a fake encounter in

June 1993 by para-military and police authorities. Sondh’s participation in the

AISSF consisted of attending anti-government demonstrations and funeral

services for Sikh men killed by the police. In November 1993, Sondh was

arrested at home, taken into custody, and beaten, kicked, and hung from the

ceiling by his hands. He was released five days later after his family paid 50,000

rupees. In June 1996, he was arrested at his uncle’s house and detained a second

time. During his five days in custody, he was beaten, tortured, given electric

shocks, deprived of sleep, and kicked. He was released after his family paid

100,000 rupees. Thereafter, he went into hiding until his mother made

arrangements for him to travel to the United States. Sondh’s parents and two

sisters still live in Punjab and his brother has lived in Dubhai, United Arab

Emirates since 1997. Sondh claimed the police are still looking for him and

several general letters from friends and family members supported this claim.

      The BIA upheld the IJ’s determination that Sondh was ineligible for asylum

because country conditions had changed since Sondh left Punjab. Thereafter,


                                         -3-
Sondh filed with the BIA a motion to reopen so that he could apply for an

adjustment of status based on his recent marriage to a United States citizen,

LaDonna Mittelsted. The BIA denied the motion to reopen.

I. APPEAL NO. 03-9544, ASYLUM AND RESTRICTION ON REMOVAL

       A. ASYLUM

       To be eligible for consideration for asylum, an alien must establish that he

is a refugee. Wiransane v. Ashcroft , 366 F.3d 889, 893 (10th Cir. 2004). A

refugee is “any person . . . outside [his] country of . . . nationality . . . who is

unable or unwilling to return to, and is unable or unwilling to avail himself . . . of

the protection of, that 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.” 8 U.S.C. § 1101(a)(42)(A). As is relevant

here, Sondh can establish refugee status by showing he “has suffered past

persecution, which gives rise to a [rebuttable] presumption [of] . . . a

well-founded fear of future persecution.”     Wiransane , 366 F.3d at 893 (quotation

omitted; alteration in original) (recognizing that alien also can show refugee

status by showing either a well-founded fear of future persecution or severe past

persecution giving alien compelling reasons for being unwilling or unable to

return to his country of origin).




                                            -4-
       Thus, if Sondh shows past persecution, he is presumed to have a

well-founded fear of persecution. 8 C.F.R. § 1208.13(b)(1). But he may be

denied asylum if conditions in Punjab, India have changed such that he no longer

has a well-founded fear of persecution if he returns.        Id. § 1208.13(b)(1)(i)(A);

see also Krasnopivtsev v. Ashcroft      , 382 F.3d 832, 838 (8th Cir. 2004) (referring to

regulation).   3



       The BIA determined that although Sondh experienced past persecution in

1993 and 1996,     4
                       he did not have a well-founded fear of persecution because the

INS provided evidence of changed circumstances in Punjab. We review this

determination under the substantial evidence standard, treating          the administrative

fact findings as conclusive unless the record shows a reasonable fact-finder would

be compelled to conclude to the contrary.           Sviridov v. Ashcroft , 358 F.3d 722, 727

(10th Cir. 2004) (citing,     e.g. , 8 U.S.C. § 1252(b)(4)(B)).

       Substantial evidence in the record supports the BIA’s finding of changed

circumstances. We agree with the BIA’s findings that




3
       Because Sondh cannot show that he is eligible for asylum, we need not
consider the second step in the asylum equation, concerning the INS’s discretion
to grant relief under 8 U.S.C. § 1158(b). See Batalova v. Ashcroft , 355 F.3d
1246, 1254 (10th Cir. 2004).
4
       We have recognized in dictum that beatings, arrests, and assaults can
establish past persecution. See Kapcia v. INS , 944 F.2d 702, 708
(10th Cir. 1991).

                                              -5-
       after the violence in the Punjab reached its height between
       1978-1992, law and order has been established and the government is
       making progress in pursuing accountability for past abuses. Sikhs in
       Punjab have participated heavily in state elections. Two police
       killings since 1997 have attracted considerable attention and the
       policemen involved face criminal charges. Although lower level
       police officers who are ill-trained and ill-paid are sometimes guilty
       of abuses, the abuses are not condoned by the government and the
       guilty are usually prosecuted and punished.

No. 03-9544, R. at 2. The BIA based these findings on State Department Reports

concerning conditions in Punjab. These reports, which present specific

information about Punjab, may be probative in well-founded fear cases and may

constitute substantial evidence.    Yuk v. Ashcroft , 355 F.3d 1222, 1235-36 & 1236

n.12 (10th Cir. 2004).

       The July 1997 Addendum to the India Country Profile documented a

significant improvement in political and social conditions in Punjab. The 1997

“election in Punjab was a definitive step in the restoration of normalcy in that

state after the separatist violence and the harsh suppression of the separatist

movement by the Indian government during the 1978-1992 period.” No. 03-9544,

R. at 182. “The law and order situation in the Punjab is by all accounts

essentially normal.”   Id. In addition, “[m]ilitancy-related human rights abuses by

the police or other security forces decreased significantly since 1993.”   Id. at 184;

see also id. at 182 (“militancy-related abuses have decreased significantly from

the early 1990’s and [there is] progress toward accountability for past abuses”).


                                            -6-
Also, membership in AISSF alone will not result in prosecution or mistreatment.

Id. at 183. “There is no evidence that Sikhs or Sikh participants face harassment,

mistreatment or persecution merely on the basis of their religion or political

opinions.” Id. Sikhs who associated with separatist militants or supported

militants may be detained and questioned by the police.       Id. Although

“[i]ndividual Sikhs may be mistreated from time to time,” they are not mistreated

“more than are other Indians.”    Id. Due to this change in conditions,

“[i]ndividuals previously involved in the militancy are returning to India or

emerging from underground.”       Id. at 184.

       The 1999 State Department Country Reports on Human Rights Practices for

India further indicated that “[i]n Punjab the pattern of disappearances prevalent in

the early 1990’s appears to be at an end.”      Id. at 131. Approximately 100 police

officials were being investigated or prosecuted for human rights abuses.       Id.

at 132.

       Before the IJ, Sondh’s only response to these reports was that there are still

problems in Punjab.    Id. at 97. As the BIA found, he provided no specific or

detailed information to counter the information in the country reports.

       We conclude the BIA undertook the requisite individualized analysis of the

information in the State Department reports.       See Yuk , 355 F.3d at 1236 n.12.

The BIA correctly recognized that this change in conditions occurred after Sondh


                                             -7-
left India. Because Sondh adduced no contrary evidence about conditions in India

after the date of his departure, it cannot be said that the record compels a result

different than the one reached by the BIA.

      Sondh argues on appeal, however, that the BIA failed to recognize that his

persecution began in 1993, at the time of his first arrest, and occurred again in

1996, at the time of his second arrest–both occurring   after 1992 when conditions

supposedly got better. Further, he notes that the 1997 Addendum states that

“[c]ustodial abuse and other police abuses remain a significant problem, despite

efforts by the National Human Rights Commission and the courts to eliminate

these practices.” No. 03-9544, R. at 183. He suggests that only police involved

in abusing high profile persons have been prosecuted.     Id. at 184. Additionally,

he speculates that local level police officers are not likely to be investigated and

prosecuted for inflicting harm on individuals such as himself and, unlike the

moderate Sikh party that won elections and does not support a separate state,

AISSF, to which he belonged, does support a separate state and “may . . . still be

regarded as a threat to the Indian government.” Aplt. Br. at 15.

      Even if some information in the State Department reports is not completely

favorable to the INS’s position, we do not reweigh the evidence; we review only

to determine whether substantial evidence supports the BIA decision.      See Yuk ,

355 F.3d at 1236. Under the facts presented here, a reasonable factfinder could


                                           -8-
find that Sondh does not have a well-founded fear of persecution. He has not

shown that the evidence he presented nor the questions he raised on appeal would

compel a result different than the one reached by the BIA. Sondh therefore has

failed to meet the heavy burden placed on him to challenge the adverse asylum

determination.

       B. RESTRICTION ON REMOVAL

       Because Sondh has failed to establish that he is eligible for asylum, it

follows that he is unable to meet the more demanding evidentiary burden required

for restriction on removal.   See Elzour , 378 F.3d at 1149; Tsevegmid v. Ashcroft ,

336 F.3d 1231, 1234, 1236 (10th Cir. 2003).

II. APPEAL NO. 03-9582, MOTION TO REOPEN

       Sondh sought reopening and remand to apply for adjustment of status

pursuant to In re Velarde-Pacheco , 23 I. & N. Dec. 253 (BIA 2002), based on a

pending immediate relative visa petition filed by his current wife, LaDonna

Mittelstedt. Velarde-Pacheco held that

       a properly filed motion to reopen may be granted, in the exercise of
       discretion, to provide an alien an opportunity to pursue an application
       for adjustment where the following factors are present: (1) the
       motion is timely filed; (2) the motion is not numerically barred by the
       regulations; (3) the motion is not barred by Matter of Shaar, 21 I&N
       Dec. 541 (BIA 1996),[ 5] or on any other procedural grounds; (4) the


5
       Shaar , 21 I. & N. Dec. at 542-49, provides that a motion to reopen in order
                                                                       (continued...)

                                          -9-
      motion presents clear and convincing evidence indicating a strong
      likelihood that the respondent’s marriage is bona fide; and (5) the
      Service either does not oppose the motion or bases its opposition
      solely on Matter of Arthur, [20 I. & N. Dec. 475 (BIA 1992)].

23 I. & N. Dec. at 256.   Arthur held that the BIA would deny “motions to reopen

for consideration of applications for adjustment of status based upon

unadjudicated visa petitions.” 20 I. & N. Dec. at 479.

      The INS opposed the motion under the first part of the fifth factor in

Velarde-Pacheco , asserting that Sondh was statutorily ineligible for adjustment of

status under 8 U.S.C. § 1154(c), “because he previously sought to be accorded

immediate relative status by reason of a marriage determined by the Attorney

General to have been entered into for the purpose of evading the immigration

laws,” No. 03-9582, R. at 2.   6
                                   The BIA denied Sondh’s motion to reopen based on

this substantive opposition, finding that the motion did not meet the criteria set

forth in Velarde-Pacheco .

      We review the BIA’s decision for an abuse of discretion.     Infanzon v.

Ashcroft , 386 F.3d 1359, 1362 (10th Cir. 2004). “The BIA abuses its discretion

when its decision provides no rational explanation, inexplicably departs from




5
 (...continued)
to apply for suspension of deportation should not be granted if the alien is subject
to a statutory bar.
6
      Sondh’s first wife, Denise Allen, filed this immediate relative visa petition.

                                           -10-
established policies, is devoid of any reasoning, or contains only summary or

conclusory statements.”     Id. (quotation omitted).

       The INS opposed the motion to reopen on the ground that Sondh was

statutorily ineligible for adjustment of status under § 1154(c). This reason does

not state opposition to the motion to reopen based on          Arthur . Velarde-Pacheco

permits the INS to oppose the motion on any non-        Arthur ground. Thus, Sondh

was ineligible for relief under   Velarde-Pacheco , see Bhiski v. Ashcroft , 373 F.3d

363, 371-72 (3d Cir. 2004), and the BIA did not abuse its discretion in denying

the motion to reopen.

       Sondh, however, argues that the finding of marriage fraud with respect to

his marriage to Allen should not preclude a finding of ineligibility for reopening

because that finding was made without the benefit of a hearing comporting with

due process. Specifically, he contends he did not have the opportunity to cross

examine Allen or INS witnesses, to testify on his own behalf, or to inspect all

evidence against him, including the tape recording of his and Allen’s interviews.

       This is the first time Sondh has made this due-process argument. After the

INS opposed his motion to reopen on ineligibility grounds, Sondh did not

respond. His failure to assert this due process issue before the BIA constitutes

failure to exhaust administrative remedies with respect to the issue and deprives

this court of jurisdiction to consider the matter on appeal.       See Akinwunmi v. INS ,


                                             -11-
194 F.3d 1340, 1341 (10th Cir. 1999) (per curiam) (holding that although there is

no exhaustion requirement for constitutional challenges to immigration laws,

because BIA has no jurisdiction to review constitutional claims, BIA does have

authority to reopen to correct procedural errors, including failure to follow due

process). “Judicial review does not extend to points [Sondh] could have made

before the [BIA] but did not.”   Rivera-Zurita v. INS , 946 F.3d 118, 120 n.1

(10th Cir. 1991).

      The request to consolidate review of the orders for removal and denying the

motion to reopen is GRANTED.       See 8 U.S.C. § 1252(b)(6). The motion for oral

argument is DENIED. The petitions for review are DENIED.



                                                     Entered for the Court



                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




                                         -12-
