Singh vs Gonzales [Summ. Ord.], (2nd Cir. 2006)

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UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER

AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY

OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY

OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR

IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, Foley Square, in the City of New York, on the 17th

day of February, two thousand and six.

PRESENT:

HON. JON O. NEWMAN,

HON . GUIDO CALABRESI,

HON. ROBERT A. KATZMANN,

Circuit Judges.

Sukhwinder Singh,

Petitioner,

-v.- No. 04-0894-ag

NAC

Alberto Gonzales,1 Attorney General of the United States,

Respondent.

FOR PETITIONER: Parker Waggaman, Gell & Gell, New York, New York.

FOR RESPONDENT: Joseph S. Van Bokkelen, United States Attorney for the Northern

District of Indiana, Toi Denise Houston, Assistant United States

Attorney, Hammond, Indiana.

1

2 UPON DUE CONSIDERATION of this petition for review of the Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the peti ti on for review is hereby DENIED.

Sukhwinder Singh, a native and citizen of India, petitions for review of a BIA decision affirming an immigration judge's ("IJ's") denial of his asylum and withholding of removal claims. We assume the parties' familiarity with the underlying facts and procedural history of the case.

Where, as here, the BIA issues a short opinion affirming the IJ's decision in part and modifying it in part, we review the IJ's opinion as modified by the BIA. Ming Xia Chen v. Board of Immigration Appeals,--- F.3d , 2006 WL 62023, at *2 (2d. Cir. Jan. 12, 2006). Since the BIA did not adopt the IJ's adverse credibility determination, we do not review that factual finding, and instead examine only the BIA's determination that Singh "failed to establish the required nexus between his circumstances in India and one of the enumerated grounds in the [INA] for the establishment of refugee status." See Yan Chen v. Gonzalez, 417 F.3d 268, 271-72 (2d Cir. 2005) (citing with approval the statement that "only if the BIA expressly adopts or defers to a finding of the IJ, will we review the decision of the IJ" in Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir. 2003)).

An asylum applicant bears the burden of establishing that "race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant." 8 U.S.C. § 1158(b)(1)(B(i). We review de novo the BIA's application of legal principles, including whether the persecution allegedly faced by the applicant is connected to one of these protected grounds. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003).

Upon a full review of the record, we find that the BIA did not err in concluding that Singh has failed to establish the requisite nexus between the prosecution that he fears and any of these protected grounds. This failure necessarily defeats Singh's asylum claim. Chun Gao v. Gonzales, 424 F.3d 122, 127 (2d Cir. 2005). Moreover, since "an applicant unable to demonstrate eligibility for asylum cannot demonstrate eligibility for withholding of removal," Singh's inability to demonstrate that his persecution claim is related to a protected ground defeats his withholding of removal claim as well. Id. at 128.

For the foregoing reasons, we hereby DENY Singh's petition for review. Having completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DENIED as moot.

Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).

FOR THE COURT: Roseann B. MacKechnie, Clerk By:

1 Pursuant to Federal Rule of A p p e l l a t e Procedure 43(c)(2), Attorney G e n e r a l Alberto R. Gonzales is a u t o m a t ic a l ly substituted for former Attorney General John Ashcroft as the respondent in this case.

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