The withholding of removal is similar to asylum. The applicant has to prove that it is more likely than not that he will be persecuted.
The United States Court of Appeals for the Second Cirucit decided this case. It is an appeal from a Board of Immigration Appeals decision.
Mr. Singh was an Indian citizen, and came to the U.S. without a valid entry visa or entry document in November, 2014. In December, he expressed a fear of returning to India and was placed in removal(deportation) proceedings. He testified that he left India because he feared being harmed by members of a rival political party. He joined the Shiromani Akali Dal Amritsar (“Akali Dal Mann” ) political party in India in 2013. He worked in the state of Punjab, he served food and set up tents at events.
The rival political group was the Shiromani Akali Dal Badal (“Akali Dal Badal”) political party. In July 2014, someone from that group called Mr. Singh. This person informed him that he would have to work for them by selling drugs, if he wanted to avoid being killed. Mr. Singh tried to report this incident to the police, but they refused to get involved. In August 2014, five members of this group approached Mr. Singh. They also wanted him to sell drugs, and work for them. Mr. Singh refused; they beat him unconscious. He ended up in the hospital, and feared for his life.
The applicant has to meet certain requirements to be granted asylum. The court can grant it by discretion (optional), it isn’t mandatory. An applicant must show that he is unable or unwilling to return to his country of nationality. This must be based upon persecution or a well-founded fear of persecution because of race, religion, nationality, membership in a particular social group, or political opinion. An applicant who has established past persecution is presumed to have a valid fear of future persecution. Asylum won’t be granted if there are changed circumstances, or if relocation to another part of the applicant’s native country would prevent the persecution.
The withholding of removal is similar to asylum. The applicant has to prove that it is more likely than not that he will be persecuted based upon race, religion, nationality, membership in a particular social group, or political opinion. One of these factors must be “at least one central reason” for the claimed persecution. However, the burden of proof is greater for withholding of removal than for asylum. Withholding of removal is a backup to asylum for those who failed to apply for asylum within the first year after arrival in the United States.
To be eligible for protection under the Convention Against Torture (“CAT”), the applicant has to establish that it is more likely than not that he would be tortured in his/her native country. The factors of race, religion, nationality, membership in a particular social group or political opinion aren’t relevant. The source of the persecution has to be the government, or government officials who acquiesce (allow the torture to happen).
Mr. Singh didn’t feel safe in any part of India. He felt that even if he moved to a different part of the country, the rival gang would find him. He was especially concerned about providing identification for things like applying for a job, or renting a home. He thought that this would alert the political party to his location, and endanger his life.
The Court did not find this argument persuasive. It denied his applications for asylum, withholding of removal, and CAT. The Court explained that the persecution by the political party was not by the government nor on the government’s behalf, and he could safely relocate to another area of India. He did not prove the likelihood of torture, because he failed to prove that he would be unsafe in other areas of India. He merely provided information concerning general country conditions.
This case is quite important. It demonstrates how difficult it can be to remain in this country, when faced with removal proceedings. Mr. Singh did not provide evidence of why he would be unsafe in another part of India. This resulted in his applications not being successful, and being forced to leave the U.S. Immigration law is quite complicated, an experienced immigration attorney’s advice is vital to gathering the necessary evidence, presenting it to the court in the best way and finding the necessary information about country conditions to support the application.
Join the conversation!