Case: 20-60712 Document: 00516480039 Page: 1 Date Filed: 09/21/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 21, 2022
No. 20-60712 Lyle W. Cayce
Clerk
Pardeep Kumar,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A201 680 166
Before Jones, Southwick, and Oldham, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
Pardeep Kumar petitions for review of an order of the Board of
Immigration Appeals. The order dismissed his appeal of an Immigration
Judge’s denials of his claims for asylum, withholding of removal, and
protection under the Convention Against Torture. He presents several
procedural and substantive challenges on appeal.
We DISMISS his petition for review in part and DENY it in part.
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FACTUAL AND PROCEDURAL BACKGROUND
Pardeep Kumar, a native and citizen of India, entered the United
States without inspection in January 2019. On January 21, 2019, an asylum
officer conducted a credible fear interview with Kumar and found that he had
a credible fear of persecution if he returned to India. The asylum officer then
referred his case to an immigration judge (“IJ”). Shortly after, the
Department of Homeland Security issued Kumar a Notice to Appear and
charged him as an alien removable for entering the United States without
valid entry documents and for being present in the United States without
admission or parole.
On April 18, 2019, the IJ sustained both charges of removability.
Kumar then told the IJ he wanted to apply for asylum and withholding of
removal, and later mailed the court a formal application. He also attached a
declaration to his application. The IJ scheduled Kumar’s merits hearing for
July 23, 2019, but the hearing was continued because Kumar was in the
hospital due to the physical effects of his participation in a hunger strike.
On November 15, 2019, the IJ convened court again for the merits
hearing on Kumar’s applications. Kumar moved to continue the hearing so
he would have 20 to 25 days for a video, photographs, and other documents
to arrive from India to support his asylum claim. The IJ denied his request
for failure to show good cause for continuance.
The hearing proceeded. Kumar wished to testify on his own behalf,
so the IJ offered him the opportunity to provide a statement or answer
questions. Kumar chose to be questioned. Through the IJ’s questioning,
Kumar explained that he feared returning to India because he believed the
Bharatiya Janata Party (“BJP”), India’s ruling political party, would kill him
if he returned to India.
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The following was Kumar’s testimony. He worked for another party,
the Indian National Lok Dahl Party (“INDP”), and experienced attacks from
the BJP as a result. The attacks began on July 13, 2018, when, as part of his
role with the INDP, he was plastering posters in a village. Four members of
the BJP approached him and told him to stop plastering the posters and leave
the INDP. Kumar refused, but the members continued to attempt to
persuade him by offering him the opportunity to sell illegal drugs. Kumar
again refused, resulting in the members punching, kicking, and slapping him.
He screamed, which caused people in nearby houses to come investigate.
The BJP members ran off once they saw people arrive but threatened Kumar
before they left that if he did not leave the INDP, it “would not be good for
[him].”
Kumar left the village and returned to his house. He described his
injuries as “minor,” consisting of swelling, and stated he treated his injuries
with at-home pain medication. He and his uncle attempted to report the
attack to the police, but the police refused to file a report. They told him that
they would not report the party because it was the current government and if
he persisted, they would “arrest [him] and put [him] in prison.”
On October 5, 2018, the BJP attacked Kumar again when he was
leaving an INDP blood donation event. He was biking home from the event
when a vehicle approached and a person signaled for him to stop. He
stopped, and four people exited the car holding hockey sticks and other
wooden sticks. They beat him with the sticks and told him that they “warned
[him] previously” to leave the party, but he did not listen. His screams
caused nearby farmers to come to the scene. The attackers left once they saw
the farmers. They warned: “[w]e came to finish you off . . . [w]hen we get
hold of you again, we’ll make sure you’re dead.” Kumar went to the hospital
for three days for treatment of his injuries. He then moved to his uncle’s
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house for four to five days before leaving that same month for the United
States out of fear of future attacks.
The IJ made an adverse credibility determination against Kumar and
denied Kumar’s claims for asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”) on the merits. Kumar
timely filed his notice of appeal of the IJ’s decision to the Board of
Immigration Appeals (“BIA”). In his brief to the BIA, he also moved for a
remand to the IJ because he now possessed the previously unavailable
evidence for which he had sought a continuance, including a new personal
declaration, a medical evaluation, affidavits from other INDP members, and
photographs of his injuries. The BIA initially mistakenly dismissed his appeal
for failure to file an appellate brief. Kumar filed a motion for reconsideration
on this issue. The BIA reconsidered his appeal but ultimately denied his
applications for asylum, withholding of removal, and CAT protection on the
merits, and also denied his motion to remand.
Kumar petitioned this court for review.
DISCUSSION
We review the BIA’s factual findings for substantial evidence and
rulings on questions of law de novo. Mireles-Valdez v. Ashcroft, 349 F.3d 213,
215 (5th Cir. 2003) (citation omitted). “Under substantial evidence review,
we may not reverse the BIA’s factual determinations unless we find not only
that the evidence supports a contrary conclusion, but that the evidence
compels it.” Chun v. INS,
40 F.3d 76, 78 (5th Cir. 1994) (citing INS v. Elias-Zacarias,
502 U.S. 478, 481 n.1 (1992)). It is the petitioner’s burden to show
that “the evidence is so compelling that no reasonable factfinder could reach
a contrary conclusion.” Chen v. Gonzales,
470 F.3d 1131, 1134 (5th Cir.
2006).
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Before proceeding with such review, though, we must satisfy
ourselves of our jurisdiction even if neither party raises the question.
Goonsuwan v. Ashcroft, 252 F.3d 383, 385 (5th Cir. 2001). We only have
jurisdiction over a petition for review from the BIA if the alien has
“exhausted all administrative remedies available to the alien as of right.”
8 U.S.C. § 1252(d). A remedy is available to the alien as of right when “(1)
the petitioner could have argued the claim before the BIA, and (2) the BIA
has adequate mechanisms to address and remedy such claim.” Omari v.
Holder,
562 F.3d 314, 318–19 (5th Cir. 2009). This means the petitioner
“must raise, present, or mention an issue to the BIA,” putting the BIA on
notice of his claim before raising it in this court.
Id. at 321–22 (quotation
marks and citations omitted).
The petitioner may put the BIA on notice either in his brief on appeal
to the BIA or in a motion to reconsider. Martinez-Guevara v. Garland, 27
F.4th 353, 360 (5th Cir. 2022). If the petitioner’s claim “alleg[es] some new
defect that the BIA never had a chance to consider” because it is based on “a
wholly new ground for relief that arises only as a consequence of the Board’s
error,” Section 1252(d) requires the petitioner to present the claim to the
BIA in a motion for reconsideration before seeking this court’s review.
Id. at
360 (quotation marks, citations, and emphasis omitted). Examples of a claim
in this category include allegations that the BIA misapplied the standard of
review or engaged in impermissible factfinding. Avelar-Oliva v. Barr,
954
F.3d 757, 766 (5th Cir. 2020). The chief inquiry in making this determination
is “whether the Board had a chance to consider it,” regardless of whether it
actually decided or considered the issue. Martinez-Guevara,
27 F.4th at 360.
Kumar challenges the BIA’s denial of his applications for asylum,
withholding of removal, and protection under CAT both substantively and
procedurally. Substantively, he argues the BIA erroneously concluded that
he did not suffer past persecution, could relocate to another part of India, and
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was not entitled to CAT relief. These substantive claims are exhausted
because they were not created by the proceedings before the BIA. See Dale
v. Holder, 610 F.3d 294, 300 (5th Cir. 2010). Rather, they address errors that
were “raised or lost at the BIA” and focus on answers to issues he previously
raised — for instance, whether he is eligible for asylum. Martinez-Guevara,
27 F.4th at 360.
Kumar raised these substantive claims before the BIA, exhausting
them and allowing us to address their merits. His other substantive challenge
relates to the BIA’s denial of his motion to remand. He argues that the BIA
erred in concluding that the new evidence he presented would not have
changed the outcome of his case. This, too, is a substantive argument “raised
or lost at the BIA.” Id. It is also exhausted.
On the other hand, we next discuss that only some of Kumar’s
procedural arguments are exhausted.
I. Exhaustion of Kumar’s procedural arguments
We first consider which of Kumar’s procedural claims are properly
before us. For those that are, we evaluate the claims in the subsequent
section of our opinion.
a. Asylum claims
The BIA concluded that Kumar was ineligible for asylum because the
harm he endured was not severe enough to constitute past persecution.
Further, the BIA determined he did not have a well-founded fear of future
persecution because he could reasonably relocate within India. To be eligible
for asylum, a petitioner must establish either past persecution or a well-founded fear of persecution if forced to return. 8 U.S.C. §§ 1101(a)(42)(A),
1158(b)(1)(B)(i).
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Kumar makes several procedural challenges to the BIA’s conclusion
that he did not suffer past persecution. First, he argues the BIA “applied the
wrong standard” in concluding that he did not suffer past persecution. He
says the BIA applied the wrong standard because it did not consider the
cumulative effect of his experiences and, instead, erroneously viewed them
individually, which mischaracterized the harm he endured as too minor to
constitute persecution.
Kumar did not raise this claim in a way that would have put the BIA
on notice that the BIA was required to consider his evidence cumulatively.
See Omari, 562 F.3d at 321–22. Kumar makes two references to this concept
in his brief to the BIA: (1) that the “violent facts of [his] case — two beatings,
property destruction, and death threats — constitute past persecution”; and
(2) that “the cumulative effect of multiple beatings, threats, and assaults also
amounts to persecution regardless of permanent or serious injury.” Though
this argument mentions a cumulative effect of his experiences, none of the
arguments he presents to the BIA speak to his claim that the IJ failed to look
at his evidence holistically. The BIA therefore was not given a chance to
consider that it needed to apply a particular standard when evaluating
Kumar’s evidence. See Martinez-Guevara, 27 F.4th at 360–61. Accordingly,
we do not have jurisdiction to consider this claim.
Kumar also argues that the BIA erred procedurally in concluding he
did not suffer past persecution because the BIA applied irrelevant caselaw.
He says the cases the BIA applied were sufficiently distinguishable from his
factual circumstances such that relying on them led to an erroneous
conclusion. See Eduard v. Ashcroft, 379 F.3d 182 (5th Cir. 2004); Abdel-Masieh v. INS,
73 F.3d 579 (5th Cir. 1996); Qorane v. Barr,
919 F.3d 904 (5th
Cir. 2019); Morales v. Sessions,
860 F.3d 812 (5th Cir. 2017).
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This claim, too, is unexhausted. The IJ did not rely on any case that
Kumar cites now, and Kumar identified only one of the four cases he
challenges in his brief to the BIA. In identifying that case, Eduard, he did not
argue it was irrelevant. In fact, he argued it was relevant to support that
individual injuries need not be of extreme severity. This argument therefore
falls in the category of claims that “arise[] only as a consequence of the
Board’s error.” Martinez-Guevara, 27 F.4th at 360 (quotation marks and
citation omitted). Because Kumar challenges the BIA’s application of the
cases that were not similarly applied by the IJ, it constitutes an error that
necessarily could not have been raised to the BIA previously. See Omari,
562
F.3d at 319. Kumar cannot satisfy Section 1252’s exhaustion requirements
for this claim.
Finally, Kumar challenges the BIA’s decision affirming the IJ’s denial
of his asylum claim on the basis that he did not establish a well-founded fear
of persecution. When assessing whether a petitioner has a well-founded fear
of future persecution, the BIA must consider whether the petitioner could
reasonably relocate within his home country. 8 C.F.R. § 208.13. If he can,
he is not considered to have a well-founded fear of future persecution.
Id. If
the petitioner did not suffer past persecution, then the “petitioner bears the
burden to establish that relocation is unreasonable, unless the persecution is
by a government or is government-sponsored.” Munoz-Granados v. Barr,
958 F.3d 402, 407 (5th Cir. 2020).
Kumar argues the BIA erred in this analysis because it improperly
applied the burden of demonstrating relocation upon Kumar when, instead,
the Government should have had to show relocation is unreasonable because,
as the ruling party in India, the BJP is considered the national government.
Here, too, Kumar did not make this argument in his brief to the BIA. At
most, he explained to the BIA that as the ruling party in India, the BJP “runs
India’s national government,” but he does not argue this information meant
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the IJ should have shifted the burden to the Government to demonstrate it
was reasonable for Kumar to relocate in India.
A petitioner must “fairly present an issue to the BIA to satisfy
Section 1252(d)’s exhaustion requirement.” Omari, 562 F.3d at 321. This
requires “some concrete statement” to which the BIA could reasonably tie a
petitioner’s claims, even if that argument was not yet fully developed before
the BIA.
Id. Kumar did not make a concrete statement to the BIA that would
put the BIA on notice that he sought to challenge the standard the IJ used to
assess whether he could relocate. We therefore cannot say he exhausted this
claim. Kumar’s procedural claims challenging the BIA’s dismissal of his
asylum claim are thus unexhausted, and we do not have jurisdiction to
consider them.
b. Due-process claims
Kumar also argues the BIA denied him due process. He contends the
BIA affirmed three of the IJ’s errors that should have been corrected and
those affirmances denied him of a fair hearing on a fully developed record.
Those errors are as follows: (1) the IJ’s failure to correct a discrepancy in the
record; (2) the IJ’s failure to advise Kumar that he could seek a medical
evaluation or submit a written declaration; and (3) the IJ’s improper denial
of Kumar’s continuance.
First, Kumar identifies the discrepancy in the record as an alleged
error by the IJ that contributed to the adverse credibility finding. The IJ
noted in her oral decision that she doubted Kumar’s credibility because he
testified that his father, Balwan Singh, died in 2013, but an affidavit Kumar
submitted explained that the affiant knew of Kumar’s attacks because the
respondent’s father, Balwan Singh, had told him of the events that took place
in 2018. The IJ explained that this discrepancy contributed to her doubt
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surrounding the credibility of Kumar’s evidence, and therefore it played a
part in Kumar’s adverse credibility finding.
Kumar clarifies on appeal that both his uncle and his father are named
Balwan Singh. Although there appeared to be a discrepancy, he says there
was none. Kumar made this argument before the BIA. He argued the IJ
violated his due process rights because she did not attempt to develop the
factual record and question the discrepancy. The BIA addressed this point
but rejected Kumar’s arguments. Thus, this argument was fully exhausted
as it can be considered “reasonably tied” to what Kumar argued below.
Martinez-Guevara, 27 F.4th at 361.
Kumar’s second argument is that he was denied due process because
the BIA affirmed the IJ’s failure to advise him that he could seek a medical
evaluation or submit a written declaration. On appeal to the BIA, Kumar
argued that the IJ erred because she “failed to advise Pardeep [Kumar] that
he could submit a written declaration in place of in-court testimony” and
“fail[ed] to advise him of the possibility of obtaining a medical evaluation
while in detention.” Like his claim that the IJ erred in failing to correct a
discrepancy in the record, by “rais[ing] the same claims to the Board on
appeal from the I.J.,” the BIA was on notice and had a chance to consider the
claim. Id. at 360. This claim is also exhausted.
Finally on this category of claims, Kumar argues that the BIA denied
him due process because it affirmed the IJ’s denial of his motion to continue
his hearing. Kumar presents his argument here about the IJ’s denial of his
continuance in the same way he made it to the BIA. This argument is an
instance where Kumar “accuses the Board of repeating the legal and factual
errors that [he] asked it to correct when [he] appealed the I.J.’s adverse
ruling.” Id. Thus, there is no need for Kumar to have raised the issue in a
motion to reconsider. That would only “call[] the BIA to ponder once again
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the very issue upon which it has already ruled.” Dale v. Holder, 610 F.3d 294,
301 (5th Cir. 2010). This claim, like his other due-process claims, is
exhausted, and we have jurisdiction to consider them all.
c. Meaningful consideration claims
Finally, Kumar argues on appeal that the BIA erred procedurally
because it did not give meaningful consideration to all the relevant evidence
in his case. “The BIA’s decision must reflect a meaningful consideration of
all the relevant evidence supporting an asylum seeker’s claims.” Cabrera v.
Sessions, 890 F.3d 153, 162 (5th Cir. 2018). This means the BIA must address
“key evidence,” but it does not need to “address evidentiary minutiae or
write any lengthy exegesis.” Abdel-Masieh,
73 F.3d at 585.
Kumar identifies various reasons the BIA failed to provide him with
meaningful consideration. First, he argues the BIA failed to address key
country conditions evidence because the BIA did not address affidavits he
attached as part of his motion to remand that discussed how deported INDP
workers were attacked upon return and also the significance of India’s
nationwide identification system. He argues that if the BIA considered this,
it would have concluded he could not reasonably relocate within India.
Second, he says the BIA failed to consider a medical evaluation taken on
January 31, 2020, that would have shown the severity of his attacks. Lastly,
he argues the BIA failed to consider a series of arguments he provided on the
IJ’s mischaracterization of evidence — specifically Kumar’s affidavits, his
testimony on the BJP’s motive, and his testimony on government
acquiescence.
Only some of these claims are exhausted. His arguments that India’s
identification system shows he cannot relocate and that the IJ
mischaracterized evidence are exhausted because he presented those
arguments to the BIA. Where a petitioner asks the BIA to correct the IJ’s
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error, and then on appeal the petitioner argues the BIA committed the same
error, the claim is exhausted. Martinez-Guevara, 27 F.4th at 361. Here,
Kumar claimed before the BIA that the IJ mischaracterized his testimony and
affidavits; in the same way, he now claims the BIA overlooked that same
evidence and mischaracterization. Kumar also raised the argument in his
BIA brief that India’s identification system shows he cannot relocate within
India. We therefore have jurisdiction over these claims.
We lack jurisdiction to consider his other arguments. We cannot
consider whether the BIA failed to give meaningful consideration either to
Kumar’s affidavits that his fellow INDP workers were attacked upon return
to India, or to his January 31, 2020, medical evaluation. Evidence on those
claims was not before the IJ. Kumar was seeking that evidence when he
moved to continue his merits hearing. These claims cover new errors that
arose out of the BIA’s decision; therefore, they must be raised in a motion
for reconsideration before being presented to us. Dale, 610 F.3d at 298–99.
Thus, Kumar has not exhausted his claim that the BIA failed to address the
evidence he included as part of his motion to remand.
II. Merits of Kumar’s claims
We now consider the merits of Kumar’s preserved claims. All Kumar’s substantive claims remain. His only preserved procedural arguments
are that the BIA denied him due process, and that the BIA failed to give meaningful consideration to his arguments that the IJ mischaracterized his testimony and affidavits.1
1
On appeal to our court, Kumar also argues the BIA committed multiple legal
errors by affirming the IJ’s adverse credibility finding. The BIA specifically noted in its
decision that, while the IJ made an adverse credibility determination, it was assuming
Kumar’s credibility and addressing his claims on the merits because the IJ made alternative
rulings on the merits of his claims as well. We therefore review the BIA’s decision on this
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Kumar argues the BIA should have found him eligible for asylum because the harm he endured was sufficient to constitute past persecution. Because the additional evidence Kumar provided, detailing continued threats
on his family, was part of his denied motion to remand, the BIA’s past persecution decision encompassed only the two beatings that he endured while in
India. Our review therefore also only encompasses those occurrences.
“Persecution is . . . an extreme concept.” Morales, 860 F.3d at 816
(citation omitted). The BIA has defined persecution as:
The infliction of suffering or harm, under government
sanction, upon persons who differ in a way regarded as
offensive (e.g., race, religion, political opinion, etc.), in a
manner condemned by civilized governments. The harm or
suffering need not be physical, but may take other forms, such
as the deliberate imposition of severe economic disadvantage
or the deprivation of liberty, food, housing, employment or
other essentials of life.
Abdel-Masieh, 73 F.3d at 583–84 (quoting Matter of Laipenieks, 18 I. & N. Dec.
433, 456–57 (BIA 1983), rev’d on other grounds,
750 F.2d 1427 (9th Cir. 1985)).
Treatment that is merely offensive or purely verbal harassment and
intimidation is not sufficient. Gjetani v. Barr,
968 F.3d 393, 397 (5th Cir.
2020). Rather, persecution “has the quality of a sustained, systematic effort
to target an individual on the basis of a protected ground.”
Id. A past
persecution claim also requires that the applicant have suffered persecution
“at the hands of ‘the government or forces that a government is unable or
unwilling to control.’” Munoz-Granados, 958 F.3d at 406–07 (quoting
Tesfamichael v. Gonzales,
469 F.3d 109, 113 (5th Cir. 2006)).
basis too. See Efe v. Ashcroft,
293 F.3d 899, 903 (5th Cir. 2002) (“We only review decisions
made by the Board. We normally do not consider the rulings and findings of immigration
judges unless they impact the Board’s decision.”) (citation omitted).
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The BIA affirmed the IJ’s finding that Kumar’s experiences were not
severe enough to amount to persecution. Although we recognize Kumar
experienced harm at the hands of the BJP, the two beatings and subsequent
injuries he suffered do not compel a contrary conclusion that the harm
endured amounts to persecution. See Chun, 40 F.3d at 78. Indeed, we have
determined petitioners did not suffer persecution in cases similar to
Kumar’s. See, e.g., Gjetani, 698 F.3d at 395 (describing multiple death threats
and beating requiring hospitalization did not constitute persecution); Abdel-Masieh,
73 F.3d at 582, 584 (two three-hour detentions with beatings and
continual tracking was not persecution). Accordingly, because the evidence
does not compel a contrary result, the dismissal of his asylum claim is
supported by substantial evidence.
The dismissal of Kumar’s claim for withholding of removal is also
supported by substantial evidence, as a petitioner must meet a higher burden
of proof than asylum to be entitled to withholding of removal. “The standard
for obtaining withholding of removal is even higher than the standard for
asylum, requiring a showing that it is more likely than not that the alien’s life
or freedom would be threatened by persecution on one of those grounds.”
Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012).
His final claim is for protection under CAT. A successful CAT claim
requires that a petitioner prove “that it is more likely than not that he or she
would be tortured if removed to the proposed country of removal”; in
addition, the torture must be inflicted “by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official
capacity.” 8 C.F.R. § 1208.16(c)(2);
8 C.F.R. § 208.18(a)(1). Past torture is
one consideration in determining whether a petitioner is likely to be tortured
upon return to his home country.
Id. § 1208.16(c)(3)(i). To obtain relief, a
petitioner need not show all the elements of a persecution claim but must
meet “the higher bar of torture.” Roy v. Ashcroft,
389 F.3d 132, 140 (5th Cir.
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2004) (citation omitted). Torture constitutes “any act by which severe pain
or suffering, whether physical or mental, is intentionally inflicted . . . for any
reason based on discrimination of any kind” — this includes “intentional
infliction or threatened infliction of severe physical pain or suffering” and
“threat of imminent death.” 8 C.F.R. § 1208.18(a)(1), (a)(4)(i), (a)(4)(iii).
Kumar argues the BIA erroneously concluded the beatings and threats
he received did not constitute torture and the government did not acquiesce
in his torture. These claims, too, we review for substantial evidence. See
Martinez-Lopez v. Barr, 943 F.3d 766, 772 (5th Cir. 2019). The evidence does
not compel a contrary conclusion to the BIA’s decision affirming that Kumar
did not endure mistreatment that rose to the level of torture. Because the
BIA’s conclusion that Kumar did not suffer persecution was supported by
substantial evidence, “[i]t follows a fortiori [the harm] do[es] not constitute
torture,” as torture is an even higher bar. Qorane v. Barr,
919 F.3d 904, 911
(5th Cir. 2019). A petitioner must meet both elements of a CAT claim. Thus,
despite Kumar’s arguments regarding government involvement, our holding
that the BIA did not err in determining that Kumar did not suffer torture also
means the BIA did not err in denying his CAT claim.
Kumar also claims the BIA erred substantively for one other reason.
He argues that because several of the BIA’s conclusions were not supported
by substantial evidence, the decision was not substantively reasonable. The
conclusions he challenges are that (1) Kumar’s persecutors were not the
Indian government itself; (2) the national identification system did not show
INDP workers could not live safely throughout India; and (3) Kumar’s
medical evaluation did not show the extent of his BJP beatings.
As a reminder, under the substantial evidence standard, “we must
defer to the BIA’s factual findings unless the evidence is so compelling that
no reasonable fact finder could fail to find otherwise.” Mikhael v. INS, 115
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F.3d 299, 304 (5th Cir. 1997). None of the findings Kumar challenges satisfy
this standard. The evidence Kumar presented showed only the BJP, not the
Indian government itself, supported or sponsored the attacks against Kumar.
Thus, it was reasonable for the BIA to conclude that the BJP’s significant
influence did not transform it into the Indian government. Indeed, panels of
our court have already upheld identical findings. Singh v. Whitaker,
751 F.
App’x 565, 567 (5th Cir. 2019); Khadiwal v. Lynch,
667 F. App’x 460, 461
(5th Cir. 2016) (holding petitioner did not show BJP, his persecutor, was the
national government).
It was also reasonable for the BIA to conclude that the existence of a
national identification system was insufficient to show Kumar could not live
safely throughout India. Aside from referring to the system, Kumar did not
present evidence that workers of his party were unable to live safely because
of this system. The evidence thus does not compel a contrary conclusion that
the identification system in itself shows Kumar could not reasonably relocate
within India.
Similarly, the BIA’s evaluation of Kumar’s January 31, 2020, medical
evaluation included as part of his motion to remand was not unreasonable.
The BIA concluded the evaluation did not relate to his claims because it
documented injuries related to his hunger strike rather than BJP attacks. The
medical evaluation largely describes Kumar’s medical status as it relates to
his hunger strike. The evaluation mentions Kumar’s experience with the BJP
in one paragraph but does not relate his medical symptoms to their attacks,
only to his hunger strike. The evaluation therefore does not compel the
conclusion that it corroborates the extent of his persecution from the BJP.
This finding is also supported by substantial evidence.
Next, we consider Kumar’s preserved procedural arguments. Kumar
argues that the BIA denied him due process for various reasons. “When
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considering a petition for review, we review constitutional issues — such as
due process claims — de novo.” Santos-Alvarado v. Barr, 967 F.3d 428, 439
(5th Cir. 2020). To show that the BIA denied a petitioner due process, the
petitioner must “make an initial showing of substantial prejudice.” Okpala
v. Whitaker,
908 F.3d 965, 971 (5th Cir. 2018). This requires the petitioner
to “make a prima facie showing that the alleged violation affected the
outcome of the proceedings.”
Id.
Kumar makes three arguments concerning due process: (1) the BIA
erred in upholding the IJ’s failure to correct a discrepancy in the record that
the IJ relied on to make her adverse credibility finding; (2) the IJ failed to
advise Kumar he could obtain a medical evaluation because, had he known,
he would have submitted a more detailed declaration than he did at the time
as a pro se party; and (3) the IJ denied Kumar’s motion for continuance
despite the existence of good cause.
As to the discrepancy in the record arising from the similarity of his
father’s and uncle’s names, Kumar cannot show any prejudice because the
BIA stated that it assumed on appeal that Kumar was credible and addressed
his claims accordingly. Likewise, he was not prejudiced by the IJ’s alleged
failure to inform him that he could obtain a medical evaluation. The record
shows he was aware of his right to provide documentary evidence and that he
could submit a written statement and medical records. There is no support,
then, for finding that the IJ’s failure to inform him of this right created
prejudice. Moreover, although the IJ has a duty to facilitate the testimony of
pro se applicants, the IJ may not “take on the role of advocate” and instruct
which documents would be most persuasive to submit. See In re J.E.F., 23 I.
& N. Dec. 912, 922 (BIA 2006). The advice Kumar argues was necessary
goes beyond merely facilitating a pro se petitioner’s testimony. The BIA
therefore did not deny him due process in affirming the IJ’s alleged failure to
instruct him that he could obtain a medical evaluation.
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Case: 20-60712 Document: 00516480039 Page: 18 Date Filed: 09/21/2022
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Finally, Kumar argues the BIA denied him due process when it
affirmed the IJ’s denial of his motion to continue because the denial
prevented him from presenting evidence that would allow a full and fair
hearing before the IJ. We see no substantial prejudice to Kumar from his
inability to present this evidence. See Okpala, 908 F.3d at 971. Again, the
medical evaluation he sought to submit was not relevant to his claims, as it
mostly discussed his hunger strike injuries, not BJP attacks. It therefore
could not supplement or aid his testimony, and no prejudice resulted from
the absence of that evidence.
Some of his other evidence would be better considered as relevant to
a claim of a threat of future persecution. After Kumar left India, there were
said to be threats to his family and that the BJP desired to find him. Whatever
future threats there may have been, Kumar testified to the IJ at his merits
hearing that, in the past, he only sustained “minor injuries” that did not
require much treatment. The IJ relied on his testimony regarding his injuries
in making her past persecution finding. The cases finding persecution based
on a pattern of assaults are accompanied by much more severe attacks and
threats than those to which Kumar testified without the additional evidence.
See, e.g., Tamara-Gomez v. Gonzales, 447 F.3d 343, 348 (5th Cir. 2006)
(describing numerous threats to the petitioner and his family, bombing of the
petitioner’s neighborhood with five casualties, and murders of other people
involved with petitioner).
Petitioner’s effort to demonstrate substantial prejudice fails because,
based on the record, we cannot conclude that even with the evidence, “the
outcome of [the petitioner’s] proceeding would have been any different.” See
Ogunfuye v. Holder, 610 F.3d 303, 306 (5th Cir. 2010).
His final procedural argument is that the BIA failed to provide his case
with meaningful consideration because it did not consider his arguments
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No. 20-60712
concerning the IJ’s alleged mischaracterizations of evidence. The three
errors alleged concern the specificity of Kumar’s affidavits, his testimony
about the brutality of the attacks against him, and his testimony about
government acquiescence. Kumar’s arguments are based on the requirement
that the BIA’s decision reflect meaningful consideration of “the relevant
substantial evidence supporting the alien’s claims.” See Abdel-Masieh, 73
F.3d at 585. Although the BIA’s decision does not need to “address
evidentiary minutiae or write any lengthy exegesis,” its decision must reflect
such consideration.
Id. Failure to do so is error. Cabrera,
890 F.3d at 163.
The BIA did not specifically discuss the IJ’s interpretation of the
evidence, but it did reference the particular testimony on the severity of his
attacks, the police involvement, and the affidavits that Kumar alleged the IJ
misconstrued. “We do not require the BIA to specifically address every
piece of evidence put before it.” Abdel-Masieh, 73 F.3d 585. Even if the BIA
did not agree with Kumar’s contention about mischaracterizations, the BIA
did mention the evidence that Kumar alleges it failed to consider
meaningfully. This is sufficient.
IV. Motion to remand
Finally, Kumar challenges the BIA’s denial of his motion to remand.
The BIA has authority “to remand an open case to the immigration judge for
further proceedings.” Wang v. Ashcroft, 260 F.3d 448, 451 (5th Cir. 2001).
A motion to remand is “reserved for new evidence that is both material and
was not available at the time of the underlying proceedings.” Cardona-Franco
v. Garland,
35 F.4th 359, 365 n.4 (5th Cir. 2022) (quotation marks and
citation omitted); Ramchandani v. Gonzales,
434 F.3d 337, 340 n.6 (5th Cir.
2005) (explaining the requirements for motion to reopen and motion to
remand are the same). Our review of the denial of a motion to remand is for
an abuse of discretion, a standard which gives significant discretion to the
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No. 20-60712
BIA. See Suate-Orellana v. Barr, 979 F.3d 1056, 1062 (5th Cir. 2020). We
will overturn the BIA’s decision only if it is “capricious, racially invidious,
utterly without foundation in the evidence, or otherwise so irrational that it
is arbitrary rather than the result of any perceptible rational approach.”
Id.
(citation omitted).
Kumar argues the BIA abused its discretion in denying his motion to
remand because the evidence he presented would have changed the outcome
of his case. We conclude, though, that it was reasonable for the BIA to
conclude that the new evidence Kumar presented would not change the
outcome of his case. The medical evaluation Kumar sought to submit would
not have altered his case because the evaluation did not discuss symptoms
and injuries related to the BJP attacks. Further, it was reasonable for the BIA
to conclude Kumar’s new declaration or affidavits would not have influenced
his case, considering he already supplied a declaration and his testimony
describing his injuries as minor could not be remedied with his additional
evidence.
The BIA’s decision to deny his motion to remand does not reach the
level of an abuse of discretion.
The petition for review is DISMISSED in part for lack of
jurisdiction and DENIED in part in accordance with this opinion.
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