SHARMA v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-08-25No. No. 20-70334

Summary · law.co

Holding. The petition for review was denied. The court affirmed the Board of Immigration Appeals' dismissal of Sharma's appeal because substantial evidence supported the agency's conclusion that he could safely relocate within India, rebutting his presumption of persecution, and he failed to establish eligibility for asylum, withholding of removal, or Convention Against Torture relief.

Amit Sharma, an Indian citizen, sought asylum, withholding of removal, and relief under the Convention Against Torture after the immigration judge denied his applications. The Board of Immigration Appeals dismissed his appeal, and Sharma petitioned for court review. The court examined whether sufficient evidence supported the agency's factual findings under the substantial evidence standard.

The court found that even if Sharma demonstrated he had suffered past persecution by members of the Badal party in Punjab, the government successfully rebutted his presumption of future persecution risk by showing he could relocate safely to another region of India. Sharma did not challenge this relocation finding in his opening brief, which amounted to waiving that argument. Because his asylum claim failed on this basis, he could not qualify for withholding of removal, which requires the same underlying eligibility. The court also upheld the denial of torture relief because Sharma did not establish it was more probable than not that the Indian government would torture him or consent to his torture if returned.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether past persecution establishes a presumption of future persecution that can be rebutted by evidence of safe internal relocation
Whether failure to challenge relocation feasibility in opening brief constitutes waiver of that argument
Whether denial of asylum necessarily precludes eligibility for withholding of removal
Whether applicant met burden of showing likely torture by or with government acquiescence

Procedural posture

Sharma appealed the immigration judge's denial of asylum, withholding of removal, and CAT relief to the Board of Immigration Appeals, which dismissed his appeal; he then petitioned for court review.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Amit Sharma, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judges decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agencys factual findings. Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). We deny the petition for review.

Substantial evidence supports the agencys determination that, even if Sharma established past persecution by members of the Badal party in Punjab, his presumption of a well-founded fear of future persecution was rebutted by evidence that he could safely relocate to another part of India. See 8 C.F.R. § 1208.13(b)(1)(i)(B); Singh v. Whitaker, 914 F.3d 654, 659-60 (9th Cir. 2019) (discussing the analysis required to determine whether the government met its burden to rebut the presumption of a well-founded fear of persecution by demonstrating that an applicant could safely relocate). In his opening brief, Sharma does not challenge the agencys determination that relocation would be reasonable. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (concluding petitioner waived challenge to issue not specifically raised and argued in his opening brief). Thus, Sharmas asylum claim fails.

Because Sharma failed to establish eligibility for asylum, in this case, he did not establish eligibility for withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).

Substantial evidence supports the agencys denial of CAT relief because Sharma failed to show it is more likely than not that he would be tortured by or with the consent or acquiescence of the government if returned to India. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

The temporary stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED.