Singh v. Bondi: Re-affirming the “Unable-or-Unwilling” Threshold and Issue-Exhaustion in Asylum & CAT Litigation

Introduction

Bhupinder Singh, an Indian national and follower of a Sikh splinter movement, applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) in the United States. He alleged persecution by devotees of the controversial religious figure Ram Rahim in India and claimed the Indian government was incapable or unwilling to safeguard him. After the Immigration Judge (IJ) denied all relief, and the Board of Immigration Appeals (BIA) summarily affirmed, Singh petitioned the U.S. Court of Appeals for the Second Circuit. The present Second Circuit Summary Order— though non-precedential by rule—clarifies two critical doctrines:

1. The degree of proof required to satisfy the “government unable or unwilling to protect” element in asylum / withholding claims based on private-actor violence; and
2. The strictness of issue exhaustion when the Government invokes it on federal court review.

Summary of the Judgment

The Second Circuit (Judges Carney, Menashi, and Kahn) denied Singh’s petition in its entirety:

• Asylum & Withholding of Removal: Substantial evidence supported the IJ/BIA finding that the Indian government was not “unable or unwilling” to control Ram Rahim’s followers. Sporadic local police inaction, without more, could not overcome documentary proof that Indian authorities had criminally prosecuted Ram Rahim, arrested hundreds of followers, and even disciplined government officials who failed to restrain the group.
• CAT: Because the record showed active law-enforcement against the persecutors, Singh failed to establish that any future torture would occur with official acquiescence.
• Due-Process Claim: Singh’s procedural argument—asserting the IJ violated due process by treating removability as conceded—was dismissed as unexhausted because it was never raised before the BIA.

Analysis

A. Precedents Cited and Their Influence

• Scarlett v. Barr, 957 F.3d 316 (2d Cir. 2020) – Reiterated that applicants must show more than a single failure of law-enforcement to establish government inability or unwillingness.
• Singh v. Garland, 11 F.4th 106 (2d Cir. 2021) – Defined persecution by private actors and the government-protection requirement.
• Quintanilla-Mejia v. Garland, 3 F.4th 569 (2d Cir. 2021) – Clarified that conflicting evidence does not defeat an agency finding supported by substantial evidence.
• Punin v. Garland, 108 F.4th 114 (2d Cir. 2024) & Ud Din v. Garland, 72 F.4th 411 (2d Cir. 2023) – Emphasized mandatory issue-exhaustion when raised by the Government.
• Garcia-Aranda v. Garland, 53 F.4th 752 (2d Cir. 2022); Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004) – Framework for CAT: likelihood of torture and government acquiescence.
• Ming Xia Chen v. BIA, 435 F.3d 141 (2d Cir. 2006); Yanqin Weng v. Holder, 562 F.3d 510 (2d Cir. 2009) – Standards of review: substantial-evidence for facts; de novo for law.

By weaving these authorities together, the panel insulated its conclusion from reversal: each cited precedent targeted a discrete doctrinal strand (standard of review, persecution by private actors, evidentiary burdens, or procedural default).

B. Court’s Legal Reasoning

1. Standard of Proof – “Unable or Unwilling” Test. The Court emphasized that a petitioner must usually show:
   • Government condones the violence, or
   • Government is “completely helpless” to prevent it.
   Mere failure to record a single police complaint is insufficient where national-level evidence shows robust enforcement. The Court contrasted the isolated station-house experience with: (a) Ram Rahim’s 2019 murder conviction; (b) mass arrests of 552 supporters; and (c) disciplinary action against derelict officials. Such evidence destroyed Singh’s narrative.
2. Substantial-Evidence Deference. Applying 8 U.S.C. § 1252(b)(4)(B) and Quintanilla-Mejia, the Court reiterated that it may not reverse an agency unless “any reasonable adjudicator would be compelled” to reach the opposite view. The record here supported—though did not compel—the agency’s conclusion; that ends appellate review.
3. Issue Exhaustion Doctrine. Singh’s late-stage due-process objection was barred because it did not appear in briefs to the BIA. Citing Punin and Ud Din, the panel underlined that exhaustion is non-optional once the solicitor general raises the point.
4. CAT – Government Acquiescence. The Court transplanted its asylum analysis. If national authorities are actively prosecuting the aggressor group, they cannot be deemed to “acquiesce” in torture.

C. Potential Impact

• Higher Evidentiary Bar for Private-Actor Claims. By equating isolated local police paralysis with insufficient proof, the decision discourages asylum applicants from relying on single-incident or de minimis inaction. Documentary evidence of nationwide enforcement will likely thwart similar claims.
• Practitioner Vigilance on Exhaustion. Failure to raise constitutional or procedural irregularities before the BIA can be fatal. The ruling serves as a cautionary tale for counsel to preserve every colorable claim at the administrative level.
• Strategic Use of Country-Condition Evidence. Agencies and government attorneys may rely on headline-level prosecutions to rebut “unable/unwilling” allegations. Conversely, applicants will need richer, localized, or more recent evidence (e.g., targeted impunity or under-enforcement) to distinguish their situations.
• Guidance for CAT Litigation. Because the acquiescence prong is often the hardest to meet, courts will likely reference Singh v. Bondi when petitioners argue that sporadic police failures equal state acquiescence.

Complex Concepts Simplified

• Substantial Evidence Standard: An appellate court must uphold agency findings unless the evidence is so overwhelming that every reasonable fact-finder would decide differently.
• Issue Exhaustion: Like raising an objection at trial before appeal, a petitioner must raise all legal arguments before the BIA or they are waived in federal court (unless the Government itself fails to invoke waiver).
• Unable or Unwilling to Protect: For asylum claims premised on persecution by non-government actors, the applicant has to show that the native government either approves the violence or is powerless to stop it.
• Convention Against Torture (CAT): U.S. law implementing CAT grants deferral of removal if an individual is “more likely than not” to be tortured and the torture is instigated or tolerated by public officials.
• Summary Order: A Second Circuit disposition without precedential force (under LR 32.1.1) but still citable with the label “SUMMARY ORDER.”

Conclusion

Although Singh v. Bondi is a non-precedential summary order, its meticulous application of the “unable-or-unwilling” standard and its uncompromising enforcement of issue-exhaustion add practical clarity for immigration litigants. The decision underscores that:

1. High-profile national enforcement against persecutor groups can defeat claims of government impotence, even if local policing is imperfect.
2. Appellate courts will not rescue unpreserved procedural or constitutional arguments.
3. For CAT relief, evidence proving governmental acquiescence remains indispensable.

In the broader legal landscape, Singh v. Bondi fortifies precedent demanding rigorous, multi-faceted proof where persecution stems from private actors and signals to practitioners that the administrative record must be fully developed—both factually and legally—long before the case reaches the federal courthouse steps.