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FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 11, 2025
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
AMARJEET SINGH,
Petitioner,
v. No. 23-9589
PAMELA J. BONDI, United States
Attorney General, *
Respondent.
_________________________________
Petition for Review from an Order of the
Board of Immigration Appeals
_________________________________
Saad Ahmad of Saad Ahmad & Associates, Fremont, California, for Petitioner.
Corey L. Farrell (Nancy D. Pham, Trial Attorney, and Sabatino F. Leo,
Assistant Director, on the brief), U.S. Department of Justice, Office of
Immigration Litigation, Washington, D.C., for Respondent.
_________________________________
Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
*
On February 5, 2025, Pamela J. Bondi became Attorney General of the
United States. Consequently, her name has been substituted for Merrick B.
Garland as Respondent, per Fed. R. App. P. 43(c)(2).
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Amarjeet Singh, a native and citizen of India, petitions for review of the
Board of Immigration Appeals’s decision affirming an immigration judge’s
decision denying him asylum relief. Singh contends that the Board
misinterpreted the unable-or-unwilling standard that applies to asylum claims
alleging private persecution. He also contends that his evidence compels the
finding that the Indian government had been unable or unwilling to protect him
from past persecution committed by political rivals. Exercising our jurisdiction
under 8 U.S.C. § 1252(a), we deny the petition because the Board did not
misinterpret the unable-or-unwilling standard and its factfinding satisfies the
substantial-evidence standard.
BACKGROUND
I. Immigration Legal Background
Under federal immigration law, noncitizens who enter the United States
without valid documentation are inadmissible and removable from the United
States. 1 8 U.S.C. §§ 1182(a)(7)(A)(i), 1229a(e)(2)(A). The removal process
involves three levels of review: an evidentiary hearing before an immigration
judge (IJ), an appeal to the Board, and review in a federal court of appeals.
During removal proceedings before an IJ, a noncitizen may apply for asylum
1
We use the term “noncitizen” as equivalent to the statutory term
“alien.” See 8 U.S.C. § 1101(a)(3); Nasrallah v. Barr,
590 U.S. 573, 578 n.2
(2020) (using “noncitizen”).
2
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under the Immigration and Nationality Act (INA), seeking refugee status and
protection from removal. See id. §§ 1158, 1101(a)(42).
If the IJ determines that a noncitizen is ineligible for asylum and orders
removal, the noncitizen may appeal to the Board. Id. § 1158(d)(5)(A)(iv). If the
Board affirms that the noncitizen is ineligible for asylum and affirms the IJ’s
order of removal, the noncitizen may obtain judicial review in a federal court of
appeals. Id. § 1252(a). That process brought Singh’s petition to this court.
II. Administrative Record
In 2017, Singh, a native and citizen of India, fled that country. He paid a
smuggler $15,000 to transport him to the United States, which he entered via
Mexico, without inspection or admission. He made it about twenty yards past
the international boundary before a border-patrol agent stopped and arrested
him. When he applied for admission, he did not possess a valid entry or travel
document. That led the government to commence removal proceedings against
him. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). In early 2018, Singh appeared in
immigration court. There, he conceded his removability.
Though removable, Singh applied for asylum and withholding-of-removal
relief under the INA. 2 8 U.S.C. § 1158;
id. § 1231(b)(3). Before the IJ, he
2
Singh also applied for protection under the regulations implementing
the United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (CAT).
8 C.F.R. §§ 1208.16, 1208.18. The Board affirmed the IJ’s denial of CAT
relief, and Singh has not petitioned for us to review that decision.
3
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contended that he qualified for asylum protection as a refugee because the
Indian government had failed and would fail to protect him from persecution. 3
In support, he testified with help from an interpreter and presented
documentary evidence, including country-conditions reports, judicial records,
and signed statements from himself, his brother-in-law, a doctor, and a political
ally. His evidence falls into three groups: (A) his life and India’s conditions,
(B) a 2000 incident in which Indian police wrongly arrested and tortured him,
and (C) two 2017 incidents in which political-opposition members assaulted
him.
A. Singh’s Background & India’s Conditions
India is a country of almost 1.4 billion people with twenty-nine states and
a parliamentary democracy. Since 2014, the Hindu Bharatiya Janata Party (BJP)
has led the government. A 2017 report from the United States Department of
State notes that though India criminalizes corruption and has held officials
“accountable for illegal actions,” AR at 287, officials often engage in “corrupt
practices with impunity,” id. at 312. According to the report, a “lack of
accountability for misconduct” infects “all levels of government.”
Id. at 279.
Police are “overworked, underpaid, and subjected to political pressure,” which
contributes to corruption.
Id. at 287. The report notes that the “most significant
3
Singh appeared before Utah-based Immigration Judge Christopher M.
Greer. Venue in the Tenth Circuit is proper because the administrative
proceedings were completed in Utah. 8 U.S.C. § 1252(b)(2).
4
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human rights issues included police and security force abuses, such as
extrajudicial killings, disappearance, torture, arbitrary arrest and detention,
rape, harsh and life-threatening prison conditions, and lengthy pretrial
detention.” Id. at 279.
Singh was born and raised in Patiala, a city in the Indian state of Punjab.
He is Sikh and a member of the Sikh nationalist “Shiromani Akali Dal,
Amritsar” (Mann) party, which advocates for Sikh separatism from India. Id. at
197. The Punjab and Haryana High Court has held that demanding Sikh
independence is not a crime. Despite that legal protection, a 2018 report from
the United Nations Refugee Agency recounts uncorroborated allegations of
mistreatment toward Mann advocates, including cases of “temporary arrests”
that sound in “political persecution.”
Id. at 246.
The Mann party is the minority Sikh party in Punjab. The more moderate,
mainstream Sikh party is the Akali-Dal-Badal (Badal) party. According to the
United Nations report, the Badal and Mann parties are often in conflict. Though
the parties have no “armed militias,” their activist members sometimes “act like
militias” by disrupting the opposing parties’ political events, leading to
physical violence and arrests. Id. (internal quotation marks omitted). The
conflict between these political parties, and Singh’s status as a Sikh and Mann
party member, set the backdrop for the events that gave rise to Singh’s alleged
persecution in India.
5
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B. Wrongful Arrest in 2000
Before the IJ, Singh testified about his wrongful arrest and torture by
police. In July 2000, Badal members tried to recruit Singh. When he rebuffed
them, they attacked him. After the attack, he went to the police station. But the
police officers, who Singh says acted for the Badal party, refused to take
Singh’s report. Instead, they threatened to fabricate a criminal case against him
if he pursued the matter. Singh left the police station.
About ten days later, police officers arrested Singh on the pretext that he
unlawfully possessed a revolver and ammunition. They took Singh to the Sadar
police station, where they stripped him naked, forced him to lie down, and
pulled his legs apart. They held him at the police station for three days, charged
him with unlawfully possessing a firearm, and jailed him for two days before
releasing him on bail.
Weeks later, the Patiala Vigilance Bureau arrested the police inspector
who led Singh’s arrest. In August 2000, Punjabi authorities charged the
inspector and the station’s sub-inspector with corruption unrelated to Singh’s
arrest. Meanwhile, Singh hired an attorney and fought the firearm charge in
court. Though he challenged the charge on its merits, he did not report that the
police had abused him. In 2003, an Indian judge acquitted Singh, concluding
that the police had framed him.
After that, Singh left Patiala for other parts of India. He did not return for
four years because he feared the police. In 2008, he briefly went back home.
6
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But after learning that the police were looking for him, he left again for a
nearby town. All told, he was away for seven years—living in several places.
Fearing arrest, he halted his political activity. In 2015, he returned to Patiala,
where he resumed his advocacy for the Mann party. A few months later, police
came to his residence while he was not home. The police left without telling
Singh’s family why they were looking for him. The visit scared Singh and he
left Patiala for a nearby town.
C. Assaults in 2017
Singh also gave evidence about two assaults in 2017, which drove him to
flee India. On February 2, 2017, Badal and BJP members attacked Singh as he
was walking home from a Mann event. They beat him with their fists and feet.
Passersby interrupted the attack, causing the assailants to flee. Singh did not
report the attack because he feared the police.
Six months later, in August, Singh was attacked again. While walking on
the street, opposition political-party members rushed him with hockey sticks,
shouting, “There’s Amarjeet!” and beat him with the sticks. Id. at 198. He was
knocked unconscious and later found by passersby, who called for help.
Singh’s father took him to the police station to report the attack. But
Singh says that the police paid him “no heed.” Id. at 198. The police told him
to come back the next day to report the incident and then “kicked” him out.
Id.
at 150, 198. Singh did not return to the police station because the police had
7
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“disrespected” him. Id. at 150. Further, he feared wrongful arrest. So he paid a
smuggler to transport him to the United States.
III. Administrative Outcome & Petition
The IJ ruled on Singh’s asylum application on June 24, 2019. Though the
IJ credited Singh’s testimony, the IJ found that Singh was ineligible for asylum
under the INA because he had not shown past persecution or a well-founded
fear of future persecution. So the IJ denied Singh’s application for asylum and
withholding of removal. At the same time, the IJ ordered that Singh “be
removed from the United States to India.” Id. at 56.
Singh timely appealed the IJ’s INA decisions to the Board. Four years
later, the Board—acting through a single appellate immigration judge—
dismissed Singh’s appeal. See 8 C.F.R. § 1003.1(e)(5) (empowering a single
member of the Board to resolve certain appeals in “a brief order”). In its
decision, the Board affirmed the IJ’s denial of asylum relief. It concluded that
Singh “did not establish that the past harm suffered or the future harm that he
fears in India was or would be inflicted by the Indian government or by
individuals or groups that the Indian government is unable or unwilling to
control.” AR at 4. In support of that finding, the Board emphasized that Singh
had been cleared of the false criminal charge from 2000, that he did not report
the 2017 attacks, that he failed to support his claim that the police would not
have taken his reports in 2017, and that Singh’s country reports did not support
Singh’s contentions regarding the level of violence in India.
Id. And because
8
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the Board concluded that Singh had “not met the burden of proof for asylum,”
Singh could not meet the more-stringent burden for “withholding of removal
under the INA.” Id. at 5. The Board having dismissed the appeal, the IJ’s
removal order became final.
8 C.F.R. § 1241.1(a).
After the Board’s dismissal, Singh filed this timely petition for review.
He also moved to stay the final removal order, but we denied that request.
Without a stay, the government can remove him to India at any time. 8 U.S.C.
§ 1231(a)(1)(B)(ii). To our knowledge, the government has not removed Singh.
Singh’s petition challenges the Board’s dismissal of his asylum claim. 4
He contends that the Board misinterpreted the unable-or-unwilling standard for
claims alleging private (nongovernmental) persecution. He also contends that
the Board erroneously concluded that he had failed to prove that India was
unable or unwilling to protect him from past persecution at the hands of private
actors. See Pet. Br. at 2 (“[T]he bone of contention is whether [] Singh suffered
past persecution in India at the hands of forces the Indian government was
unable or unwilling to control.”).
4
The government asserts that Singh waived his claim for withholding-ofremoval relief under the INA by contesting only his asylum claim. We do not
address whether Singh preserved his withholding claim, because we deny
review of his petition’s asylum claim, which dooms his withholding claim. See
Uanreroro v. Gonzales, 443 F.3d 1197, 1202 (10th Cir. 2006) (“Applicants who
cannot establish a well-founded fear under asylum standards will necessarily
fail to meet the higher burden of proof required for withholding of removal
under the INA or Convention Against Torture.”).
9
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DISCUSSION
The discussion (I) gives the relevant legal framework and (II) analyzes
Singh’s arguments within that context.
I. Legal Framework
“Immigration law can be complex, and it is a legal specialty of its own.”
Padilla v. Kentucky, 559 U.S. 356, 369 (2010). Singh seeks judicial review of
the Board’s determination that he is ineligible for asylum because he failed to
prove that he was persecuted by private actors that the Indian government was
either unable or unwilling to control. To help understand Singh’s arguments,
we discuss (A) asylum, (B) our jurisdiction and standard of review, and (C) the
unable-or-unwilling standard that applies to asylum claims based on private
persecution.
A. Asylum
A noncitizen who fears persecution if removed to a particular country has
three avenues for relief: asylum under the INA, withholding of removal under
the INA, and withholding of removal or deferral of removal under the
Convention Against Torture (CAT). 5 Niang v. Gonzales, 422 F.3d 1187, 1193–
5
The CAT is formally referred to as the United Nations Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85. The United States implemented
the CAT through the Foreign Affairs Reform and Restructuring Act of
1998, Pub. L. No. 105–277, § 2242, 112 Stat. 2681 (1998). See Elzour v.
Ashcroft,
378 F.3d 1143, 1150 n.8 (10th Cir. 2004).
10
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94 (10th Cir. 2005). Unlike INA-withholding relief or CAT relief, asylum is a
discretionary form of relief which may be granted by the Attorney General to
eligible noncitizens. Id. An asylum grant permits a noncitizen to stay and work
in the United States until the grant is terminated.
8 U.S.C. § 1158(c)(1)–(2).
“An asylum application is a two-step process.” Diallo v. Gonzales, 447
F.3d 1274, 1282 n.4 (10th Cir. 2006). “First, the applicant must show that he is
eligible for asylum . . . .”
Id. Second, if eligible, “he must convince the
Attorney General to exercise [her] discretion and grant asylum.” 6
Id. This
petition implicates the first step, eligibility.
To be eligible for asylum, an applicant bears the burden of proving by a
preponderance of the evidence that he is a refugee within the meaning of the
INA. Rivera-Barrientos v. Holder, 666 F.3d 641, 645 (10th Cir. 2012) (citing
8
C.F.R. § 1208.13);
8 U.S.C. § 1158(b)(1)(A). A refugee is a person who is
unable or unwilling to return to his country of nationality, and unable or
unwilling to avail himself of that country’s protection, because of
“persecution or a well-founded fear of persecution on account of” any of five
protected grounds, including political opinion.
8 U.S.C. § 1101(a)(42). “For
persecution to be on account of a statutorily protected ground, the victim’s
6
The “Attorney General’s discretionary judgment whether to grant
[asylum] relief . . . shall be conclusive unless manifestly contrary to the law
and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D).
11
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protected characteristic must be central to the persecutor’s decision to act
against the victim.” Rivera-Barrientos, 666 F.3d at 646 (cleaned up).
Though the INA does not define persecution, we have held that
persecution “is the infliction of suffering or harm upon those who differ [on a
protected ground] in a way regarded as offensive and must entail more than just
restrictions or threats to life and liberty.” Ritonga v. Holder, 633 F.3d 971, 975
(10th Cir. 2011) (internal quotation marks omitted). “[P]ersecution may be
inflicted by the government itself, or by a non-governmental group that the
government is unwilling or unable to control.”
Id. (internal quotation marks
omitted). We refer to the latter as “private persecution.” See Bringas-Rodriguez
v. Sessions,
850 F.3d 1051, 1062 (9th Cir. 2017) (en banc) (using “private
persecution”).
Whether governmental or private persecution, an asylum applicant must
prove “past persecution” or a “well-founded fear of future persecution.” 7
Aguilar v. Garland, 29 F.4th 1208, 1211 (10th Cir. 2022); see
8 C.F.R.
§ 1208.13(b)(1)–(2). Proof of past persecution entitles the applicant to a
7
“To establish a well-founded fear, an applicant must show (1) a
genuine, subjective fear of persecution that is (2) objectively reasonable based
on credible, direct, and specific evidence in the record.” Aguilar v. Garland, 29
F.4th 1208, 1213 (10th Cir. 2022) (cleaned up). “For the second element, an
applicant must demonstrate a reasonable possibility of future persecution,”
which can be a chance of future persecution that is “as low as 10 percent.”
Id.
12
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rebuttable presumption of a well-founded fear of future persecution. 8 Rivera–
Barrientos, 666 F.3d at 646. Applicants can also establish refugee status by
proving past persecution so severe as to demonstrate “compelling reasons for
being unwilling or unable to return” even when no future danger of persecution
exists.
8 C.F.R. § 1208.13(b)(1)(iii)(A). Though he argued both past and fear-
of-future persecution before the Board, Singh’s present petition challenges only
the Board’s past-persecution ruling.
To prove past persecution, an applicant must show: (1) an incident that
rises to the level of persecution; (2) that was on account of one of the
statutorily protected grounds; and (3) that was committed by the government or
forces the government was either unable or unwilling to control. Niang, 422
F.3d at 1194–95. Singh’s petition depends on his ability to meet the third
element, which applies if either the government engaged in the past persecution
or was either unable or unwilling to control a private group’s past persecution
of the petitioner.
8
The government may rebut this presumption and prevent the grant of
asylum by showing (1) a “fundamental change” in circumstances, such that the
applicant no longer has a well-founded fear of persecution; or (2) the
applicant’s ability to “avoid future persecution by relocating to another part of
the applicant’s country.” Rivera-Barrientos, 666 F.3d at 646 (quoting
8 C.F.R.
§ 1208.13(b)(1)(i)).
13
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Singh contends that he suffered past persecution from politically
motivated private actors, not from the government. 9 So he must prove that the
Indian government was “unable or unwilling to control” those private actors.
Id. If he does, then he may be entitled to a rebuttable presumption of a “well-
founded fear of persecution on the basis of the original claim.” 10
8 C.F.R.
§ 1208.13(b)(1). Before detailing the unable-or-unwilling standard for private
persecution, we pause to review our role at this stage.
B. Jurisdiction & Standard of Review
We generally have jurisdiction to review final orders of removal, which
can include a consolidated review of asylum claims. 8 U.S.C. § 1252(a)(1),
(b)(9). Our review of the Board’s denial of asylum relief is limited to “the
administrative record on which the order of removal is based.”
Id.
9
Singh testified that Indian police officers unlawfully arrested and
tortured him in 2000. Despite that evidence, Singh’s brief does not argue that
he suffered past persecution that was “committed by the government.” Niang,
422 F.3d at 1194. During oral argument, a panel member asked Singh’s counsel
whether his argument was limited to private persecution. Singh’s counsel
answered affirmatively. So governmental persecution is not before us, and we
may consider only whether Singh proved past, private persecution.
10
To acquire the rebuttable presumption, Singh must prove every past-persecution element. 8 C.F.R. § 1208.13(b)(1). The IJ determined that Singh
failed to prove the unable-or-unwilling element and that he failed to prove that
he was persecuted on account of his political opinion. The Board affirmed on
only the unable-or-unwilling element and that is the only issue before us. So
even if Singh’s unable-or-unwilling arguments were to succeed on judicial
review, he would still need to show on remand to the Board that the IJ erred in
finding that he had not shown past persecution on account of his political
opinion.
14
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§ 1252(b)(4)(A). Our scope is further limited by “the form” of the Board’s
asylum decision. Htun v. Lynch, 818 F.3d 1111, 1118 (10th Cir. 2016) (internal
quotation marks omitted). Where, as here, a single Board member affirms the
IJ’s decision in a brief order, we consider only the grounds relied upon by the
Board.
Id. In doing so, we can consult “the IJ’s more complete explanation of
those same grounds.”
Id. (internal quotation marks omitted). As stated, Singh
challenges only the Board’s unable-or-unwilling ruling for past, private
persecution. So our review is limited to that ground. 11
We generally have jurisdiction to review both factual and legal
challenges to the Board’s unable-or-unwilling decision. 8 U.S.C. § 1252(a)(1),
(b)(9). We review legal questions de novo, Addo v. Barr,
982 F.3d 1263, 1268
11
“In addition to generally limiting our review to what the [Board]
decided, we also generally limit appellate review to what the parties present to
us.” Gurchiani v. Garland, No. 23-9588, 2025 WL 46446, at *4 (10th Cir. Jan.
8, 2025) (unpublished). We note that the Board found that Singh failed to prove
past persecution and fear-of-future private persecution. When an applicant
proves past persecution, he or she is entitled to a rebuttable presumption of a
well-founded fear of future persecution.
8 C.F.R. § 1208.13(b)(1). So the past-persecution analysis can converge into a fear-of-future persecution analysis.
But the Board did not analyze Singh’s alleged fear-of-future persecution as if
he had proven past persecution; that is, the Board did not afford Singh the
rebuttable presumption of a well-founded fear of future persecution. And
because Singh would be entitled to that presumption if he proved past
persecution, we do not see Singh’s failure to challenge the Board’s fear-of-future persecution finding as precluding our ability to review the past-persecution finding under our preservation doctrine. Cf. Gurchiani,
2025 WL
46446, at *4–5 (explaining that when a party fails to challenge one of the BIA’s
dispositive grounds, we consider that challenge waived and therefore need not
review a preserved challenge to an alternative, dispositive ground).
15
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(10th Cir. 2020), such as whether the Board misinterpreted the unable-or-
unwilling standard, Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir. 2013). But
we review the Board’s factual findings under the substantial-evidence standard.
Addo, 982 F.3d at 1268. Whether a noncitizen has proved past private
persecution in their home country—the overarching issue here—is a fact
question. 12 Vicente-Elias v. Mukasey,
532 F.3d 1086, 1091 (10th Cir. 2008).
Under the substantial-evidence standard, the administrative “findings of
fact are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). In applying this “highly
deferential” standard, Nasrallah v. Barr,
590 U.S. 573, 583 (2020), “we do not
weigh evidence or independently assess credibility,” Htun,
818 F.3d at 1119.
“[O]ur duty is to guarantee that factual determinations are supported by
reasonable, substantial and probative evidence considering the record as a
whole.” Elzour v. Ashcroft,
378 F.3d 1143, 1150 (10th Cir. 2004).
And yet, our deference is not boundless. The Board cannot “simply
overlook,” “ignore,” or “misconstrue” evidence when factfinding. Karki v.
Holder, 715 F.3d 792, 800 (10th Cir. 2013) (internal quotation marks omitted).
12
Under Vicente-Elias v. Mukasey, the persecution requirement is treated
as a fact question “even if the underlying factual circumstances are not in
dispute and the only issue is whether those circumstances qualify as
persecution.” 532 F.3d 1086, 1091 (10th Cir. 2008). Circuit courts are split on
whether that is the right approach. Xue v. Lynch,
846 F.3d 1099, 1104, 1105
n.11 (10th Cir. 2017) (flagging circuit split and calling our approach into
serious doubt). But Singh does not raise the issue.
16
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But the Board need not discuss “every piece of evidence” in rendering its
decision. Hadjimehdigholi v. INS, 49 F.3d 642, 648 n.2 (10th Cir. 1995). We
presume the Board has considered the whole record. Batalova v. Ashcroft,
355
F.3d 1246, 1252 (10th Cir. 2004). Our task is to determine whether “any
reasonable adjudicator would be compelled to conclude to the contrary” of the
Board given that record.
8 U.S.C. § 1252(b)(4)(B).
C. The Unable-or-Unwilling Standard
As discussed above, an asylum claim based on past, private persecution
requires an applicant to prove by a preponderance of the evidence that he or she
suffered persecution from private forces that the government was “either unable
or unwilling to control.” Niang, 422 F.3d at 1194–95 (internal quotation marks
omitted). A few principles guide the unable-or-unwilling analysis.
To begin, an applicant need not prove both inability and unwillingness. It
suffices to show either that the government was unable to control persecutors
“or” that the government was unwilling to control persecutors. See id.
(emphasis added). An able but unwilling government (or a willing but unable
government) no more protects its people from private persecution than an
unable and unwilling government. See Madrigal, 716 F.3d at 506–07
(remanding where the Board considered willingness but not ability to control
persecution). That said, the same evidence often proves or undermines both a
government’s inability and its unwillingness to control private actors. So
though an applicant can prove inability or unwillingness, courts typically
17
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analyze both at the same time. See Ritonga, 633 F.3d at 976; K. H. v. Barr,
920
F.3d 470, 476–78 (6th Cir. 2019); Bringas-Rodriguez, 850 F.3d at 1073–74.
For inability and unwillingness, the analysis is a “fact-specific inquiry
based on consideration of all evidence.” In re C-G-T-, 28 I. & N. Dec. 740, 740
(BIA 2023). But that evidence usually falls into two categories: (1) the
country’s conditions, and (2) the government’s response to an asylum
applicant’s alleged persecution. 13 See Aviles-Gonzalez v. Garland, No. 23-9547,
2024 WL 3066987, at *2–3 (10th Cir. June 20, 2024) (unpublished)
(considering both the government’s response to specific acts of past persecution
and country conditions); K. H., 920 F.3d at 476–78 (same); Bringas-Rodriguez,
850 F.3d at 1074–75 (same).
Country-conditions evidence “allows an adjudicator to consider a
country’s practices more generally and gives a broader picture of the social,
13
These two evidentiary categories developed as the theories of private
persecution evolved. Bringas-Rodriguez, 850 F.3d at 1059–62 (outlining the
evolution of refugee law and the unable-or-unwilling standard). In years past,
“whether a government was unable or unwilling to control private persecution
almost exclusively involved a fear of future persecution by organized groups,
such as anti-government guerillas.” Id. at 1062. For those cases, “either it was
undisputed that the government was unable or unwilling to control the powerful
organizations at issue, or the inability to control was proved through
documentary evidence, such as country conditions reports.”
Id. But later
petitions for review, like the one here, did not involve persecution at the hands
of powerful, organized groups.
Id. at 1063. Instead, they “involved claims for
relief based on past persecution by unorganized groups and individuals.”
Id.
For those cases, “where the petitioner was required to show that previous
attacks were committed in the shadow of an acquiescent government,” courts
began looking at “evidence of how the police responded to the petitioner’s
requests for protection.”
Id.
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economic, and cultural realities of a country.” K. H., 920 F.3d at 476. Among
other things, the evidence informs how certain groups are treated, how crimes
are prosecuted and punished, and how the government generally protects
people. Country-conditions evidence can independently establish a
government’s inability or unwillingness to control private persecutors,
especially when the government is dealing with powerful, organized private
groups. See Gomez-Saballos v. INS,
79 F.3d 912, 916–17 (9th Cir. 1996)
(concluding that “documentary evidence about general conditions in
Nicaragua” was enough to show that the government was “unable to control”
former National Guard members).
Alongside country-conditions evidence, the unable-or-unwilling analysis
also considers evidence about a government’s response to an applicant’s past
persecution. Ritonga, 633 F.3d at 976. Two types of information weigh heavily
when considering a government’s response to persecution: (1) whether the
government stopped or tried to stop the persecutors (that is, whether the police
investigated, apprehended, prosecuted, and punished the persecutors), and
(2) whether the government offered protection to the applicant, such as by
placing the applicant in protective custody. See
id. (explaining that a
government’s investigation and apprehension of alleged persecutors
undermined an asylum applicant’s unable-or-unwilling contention); Galdamez-
Peraza v. Garland, No. 24-9517,
2024 WL 4563942, at *4 (10th Cir. Oct. 24,
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2024) (unpublished) (“Police investigation undermines an argument that the
government is unwilling or unable to control offenders.”).
But those considerations depend on the government’s having notice of
the persecution and an opportunity to respond. Without such notice, “there is no
way to know how the police would have reacted or whether the government
would have helped.” Osorio-Morales v. Garland, 72 F.4th 738, 744 (7th Cir.
2023). For that reason, a key fact to the analysis is whether an applicant
reported past persecution to the government. See Afriyie v. Holder,
613 F.3d
924, 931 (9th Cir. 2010) (explaining that the authorities’ response, or lack
thereof, to reports of persecution “may provide powerful evidence with respect
to the government’s willingness or ability to protect the requestor”), overruled
on other grounds by Bringas-Rodriguez,
850 F.3d at 1070.
A failure to report can undercut a claim that the government was unable
or unwilling to control the persecutors. Aviles-Gonzalez, 2024 WL 3066987, at
*2. But such a failure is “not necessarily fatal” to the applicant’s unable-or-
unwilling claim if the applicant “can otherwise demonstrate that filing a police
report would have been futile or dangerous.”
Id. (quoting In re C-G-T-, 28 I. &
N. Dec. at 743–44); accord Bringas-Rodriguez, 850 F.3d at 1073–74
(reiterating that an applicant need not report abuse when reporting would have
been “futile” or “dangerous”).
In sum, the unable-or-unwilling analysis is a fact-specific inquiry based
on all the evidence. To satisfy the unable-or-unwilling standard, an applicant
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need prove only that the government was unable or unwilling to control private
persecutors. For either, an applicant can rely on any relevant evidence,
including the country’s conditions and the government’s response to private
persecution. When an applicant relies on the government’s response to private
persecution of which the government was unaware, he or she must show that
reporting the persecution to authorities would have been futile or dangerous.
II. Analysis
With that context in mind, we turn to Singh’s challenges to the Board’s
ruling that he failed to prove that India was unable or unwilling to protect him
from private persecutors—namely, Badal members with anti-Mann sentiment.
We first consider Singh’s argument that the Board committed legal error by
misinterpreting the unable-or-unwilling standard. Then we consider Singh’s
argument that the Board’s ultimate factual determination was unreasonable
under the substantial-evidence standard.
A. Legal Challenge
Singh contends that the Board “misapplied the ‘unable or unwilling to
control’ analysis” by considering the Indian government’s willingness—but not
its ability—to control his persecutors. Pet. Br. at 29. As explained above, we
agree with Singh’s underlying premise that willingness-to-control and ability-
to-control are alternatives. An applicant need prove only one to meet the
element for private persecution.
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So had the Board considered only India’s willingness to protect Singh or
considered only India’s ability to protect him, that would have been legal error.
See Madrigal, 716 F.3d at 506 (holding that the Board committed legal error by
focusing solely on a government’s willingness, but not its ability, to control
private persecution). But that’s not what happened. The Board considered both
India’s willingness and ability to protect Singh from persecution. See AR at 4
(reasoning that Singh failed to “show that the Indian government was unable or
unwilling to protect him”).
Granted, the Board considered certain evidence to be probative of both
requirements, such as country reports, India’s exoneration of Singh on the
fabricated criminal charge, and Singh’s failure to report attacks against him to
the police. But we have never required that ability and willingness be
considered under separate headings based on different evidence. Instead, when
the same facts tend to “undercut the notion” that a government was unable and
unwilling to protect an applicant, we have considered ability and willingness
together. Aviles-Gonzalez, 2024 WL 3066987, at *3 (finding that a failure to
report private persecution was relevant to both the unable and unwilling
inquiries); see Ritonga,
633 F.3d at 976 (finding that a police investigation into
a discriminatory assault “undermine[d]” the argument that the “government was
unwilling or unable to control” the assailants (internal quotation marks
omitted)).
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The Board considered India’s ability and its willingness to control
Singh’s persecutors based on evidence that was relevant to both inquiries. We
do not see that as a misapplication of the unable-or-unwilling standard.
B. Factual Challenge
To prevail on his factual challenge to the Board’s unable-or-unwilling
ruling, Singh must convince us that the administrative record compels “any
reasonable adjudicator” to find that India was either unable or unwilling to
protect him from private persecutors. 8 U.S.C. § 1252(b)(4)(B). We conclude
that the record does not compel that finding. We discuss Singh’s evidence
about (1) India’s response to Singh’s persecution, and (2) the conditions in
India.
1. Government’s Response
Singh references two instances that he says show that India was unable
and unwilling to control private persecutors: (1) his wrongful arrest and torture
in 2000 by police officers, who Singh alleges were influenced by the Badal
party; and (2) nongovernment Badal members assaulting him in 2017 because
of his political affiliation with the Mann party.
The Board determined that Singh’s arrest in 2000 did not show that the
Indian government was unable or unwilling to protect Singh because—though
his arrest was wrongful—Singh was “cleared of all false charges and the police
officers, who fabricated the false charges against [Singh], were removed from
their positions.” AR at 4. We recognize that the officers were punished for
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corruption unrelated to Singh’s unlawful arrest—which provides less support
for India’s response than had the officers been arrested because of Singh’s
mistreatment. 14 But still, as Singh seems to admit, India’s arresting Singh’s
persecutors helps show its ability and willingness to control them. See Pet. Br.
at 26 (noting that the disciplinary action “shows some effort on part of the
authorities to stop official corruption”).
And though not explicitly referenced by the Board, another record-bound
fact supports the Board’s finding: Singh never reported that he was abused by
the police officers. AR at 136 (“Q: Did you and your attorney report that
abusive treatment to higher authority? . . . A: No.”). So even without its being
informed of the physical abuse, India’s judicial system provided him with
relief—bail, acquittal, and an acknowledgment that he had been “framed.” Id.
at 226. Given that India removed Singh’s abusers of their power, that India
cleared Singh of the false charge, and that Singh never reported the physical
abuse surrounding that false charge, we think the record supports the Board’s
finding that India willingly and ably responded to Singh’s unlawful treatment
in 2000. 15
14
Neither the IJ nor the Board erroneously found that India arrested the
officers because of Singh’s situation. Rather, they accurately recognized that
Singh was cleared of the false charges and that the charging officers were
arrested for corruption.
15
We emphasize that this analysis is confined to the unable-or-unwilling
element for private persecution. Whether Singh’s evidence amounts to
governmental persecution is not before us. Supra n.9.
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Singh also did not convince the Board that India was unable or unwilling
to protect him in 2017—sixteen years after his false arrest—when he was twice
attacked by political-opposition members. As the Board noted, Singh never
tried to report the February attack by Badal members. Singh did go to the
police station to report the August attack, but the police “asked him to return
the next day.” AR at 4, 150. Though Singh stated that the police “paid [him] no
heed” and “kicked” him out of the station, the Board concluded that Singh had
failed to support his contention “that the Indian police would not take his report
had he returned the next day.” Id. at 4, 150, 198. In essence, the Board found
that Singh had not shown that reporting the attack as the police requested was
“futile or dangerous.” Aviles-Gonzalez, 2024 WL 3066987, at *2; see Osorio-
Morales,
72 F.4th at 743 (“Although police apathy can indicate a government’s
unwillingness or inability to protect an applicant, a one-off conversation with
an unhelpful officer does not necessarily show that a government is unable or
unwilling to protect a victim.” (internal quotation marks omitted)).
Singh asserts that the Board’s futility determination ignored Singh’s
unlawful arrest in 2000. But, as discussed, the Board did consider the unlawful
arrest in 2000. It just did not make the inference Singh seeks—that the police
arresting him in 2000 for attempting to report an attack establishes that the
police would not accept his report in 2017. The Board had evidence supporting
its decision to not draw that inference. Singh’s unlawful arrest was led by
police officers who India had removed from their posts. Then sixteen years
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passed. During that time, the police spoke with Singh’s family on several
occasions, inquiring into Singh’s whereabouts for unknown reasons. But for
over a decade, Singh himself had no interactions with the police, even when he
resumed advocating for the Mann party. And the police officers in 2017 were
different from those in 2000. 16 These facts weigh against finding that Singh’s
experience with police in 2000 established that reporting persecution to
different police officers sixteen years later would have been futile or
dangerous.
2. Country Conditions
Singh asserts that the Board “ignored the relevant country conditions
evidence” and failed to consider the country reports alongside Singh’s personal
testimony. Pet. Br. at 26–27. The Board did neither—it considered the relevant
country-conditions evidence in totality with Singh’s personal experiences.
As for the substance of Singh’s country-conditions evidence, Singh
submitted evidence supporting his fear of the police. A 2017 report from the
U.S. Department of State notes that Indian officials often engage in “corrupt
16
Singh suggests that the police officers in 2000 are like the police
officers in 2017 because the Badal party was in power during both years and it
“had the ability to influence the police.” Pet. Br. at 20. But aside from his
subjective belief that the 2017 officers “worked” for the Badal party, AR at
158, he cites no evidence compelling the finding that they were Badal
members, that they would be unable or unwilling to protect him based on their
political affiliations, or that rival political parties used the police to cover-up
private attacks against Mann members, see id. at 52 (noting that a Badal and
BJP “conspiracy” to “oppress Sikhs, or in particular the Mann party members,
is not borne out in the record”).
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practices with impunity,” AR at 312, and that “[a] lack of accountability for
misconduct” infects “all levels of [Indian] government,” id. at 279. According
to the report, India’s “most significant human rights issues included police and
security force abuses, such as extrajudicial killings, disappearance, torture,
arbitrary arrest and detention, rape, harsh and life-threatening prison
conditions, and lengthy pretrial detention.” Id.
That evidence weighs against India’s ability and willingness to protect
Singh. But it does not compel an unable-or-unwilling finding. First, the bulk of
the evidence reflects generalized corruption, not sectarian corruption in Punjab
against Mann advocates. Second, the country-conditions evidence is not one-
sided; it contains evidence that supports India’s ability and willingness to
control corruption and political persecution. See Chicas-Mejia v. Garland, 856
F. App’x 772, 776 (10th Cir. 2021) (upholding the Board’s unable-or-unwilling
finding where the evidence was sufficiently “mixed”). For example, though the
Department of State report found instances of officials “acting with impunity,”
it also found instances when officials were “held accountable for illegal
actions,” explaining that India criminalized corruption and brought cases
against law-enforcement officers. AR at 287. The report also notes that India is
a democracy with free-and-fair elections and a judicial system that provides
remedial avenues for “cases involving allegations of corruption and partiality.”
Id. at 279, 291. And another report states that the Punjab and Haryana High
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Court has held that Mann members, like Singh, can lawfully demand Sikh
independence from India.
Given the generality and mixed-nature of Singh’s country-conditions
evidence, we cannot say that it shows that it would have been futile or
dangerous for Singh to report the 2017 attacks, or that it otherwise compels an
unable-or-unwilling finding.
…
Considering the entire administrative record—including India’s specific
response to Singh’s alleged persecution alongside India’s general conditions—
any reasonable adjudicator would not be compelled to conclude that the Indian
government was unable or unwilling to protect Singh from private sectarian
persecution. So under the highly deferential substantial-evidence standard, the
Board’s finding is conclusive. 17
CONCLUSION
We deny the petition for review.
17
One last point. Singh argues that the IJ incorrectly found that his
alleged persecution was not on account of his political beliefs. Pet. Br. at 19–
21. According to Singh, that erroneous finding “infected” the separate unable- or-unwilling analysis. Id. at 19. But the Board’s unable-or-unwilling ruling did
not depend on whether Singh was persecuted because of his political beliefs, or
for some other reason. Rather, the Board’s analysis assumed—as ours does—
that Singh was arrested in 2000 and attacked in 2017 because he is a Mann
advocate.
28
