Singh v. Mukasey

• Decision Date: 25 September 2008
• Docket Number: No. 07-2187.,07-2187.
• Citation: 543 F.3d 1
• Parties: Bagh SINGH, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

543 F.3d 1

Bagh SINGH, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 07-2187.

United States Court of Appeals, First Circuit.

Submitted May 8, 2008.

Decided September 25, 2008.

Ashwani K. Bhakhri for petitioner.

Jeffrey S. Bucholtz, Acting Assistant Attorney General, Terri J. Scadron, Assistant Director, Office of Immigration Litigation, and Margaret Perry, Senior Litigation Counsel, Office of Immigration Litigation, for respondent.

Before LYNCH, Chief Judge, BOUDIN and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Petitioner Bagh Singh, a native and citizen of India, seeks review of a decision of the Board of Immigration Appeals (BIA) denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Singh claims that he experienced persecution in India because of his father's political beliefs. The BIA rejected this contention and concluded that petitioner had failed to show that any of the statutory bases for obtaining relief from deportation was the "central reason" for his alleged persecution. Singh challenges that conclusion, as well as the BIA's finding that he failed to corroborate his testimony, as required by the Real ID Act of 2005, Div. B. of Pub.L. No. 109-13, 119 Stat. 302-23 (2005).

We do not reach the corroboration issue. Discerning no error in the BIA's analysis of the alleged basis for persecution, we deny the petition.

I.

On March 25, 2005, petitioner Singh attempted to enter the United States as a stowaway on a boat arriving in San Juan, Puerto Rico. He was immediately apprehended and charged with multiple offenses that subjected him to removal from the country. See 8 U.S.C. § 1182(a)(6)(D) (stowaway); § 1182(a)(9)(A)(ii)(I) (alien ordered removed who seeks admission within 10 years of date of departure or removal); 8 U.S.C. § 1182(a)(9)(C)(i)(II) (alien who has attempted to enter or reenter without being admitted). Singh conceded deportability, but filed applications for relief based on alleged persecution against his family in India.

In a hearing before an Immigration Judge (IJ), Singh testified that his family, who lived in the Punjab region of India, had been repeatedly targeted for harassment and violence because of his father's political activity. His father, Rachhpal Singh (Rachhpal), was an active member of the Akali Dal, a political separatist group that clashed with the rival organization Babbar Khalsa, a militant group of Sikh separatists. Petitioner testified that his father's opposition to these rivals was vocal and open, triggering the harassment his family endured. Their difficulties began in the early 1990s, when members of the Babbar Khalsa showed up at petitioner's home on several occasions and demanded food from his mother. Singh testified that Rachhpal reported these visits to the police but nothing was ever done. In January of 1995, two members of the Babbar Khalsa entered Singh's home and shot his father. Singh and his cousin, who were standing near his father at the time of the attack, also suffered gunshot wounds. All three men were hospitalized for their injuries.

Singh, who worked on his family's farm, testified that he believed his father had been targeted by the Babbar Khalsa because he had reported their previous harassment to the police. His father recognized the two shooters, who later called Singh's house and explicitly identified themselves as members of the Babbar Khalsa. There is some confusion about whether Singh himself knew the identity of the men; he first testified that he had never seen them before, but later stated that they were the ones who had come to his house and harassed his family in previous years.

Singh testified that he left India soon after the shooting at the urging of his parents, who were concerned for his safety. He then made his first attempt to enter the United States. In July 1995, he crossed into Texas from Mexico, but was quickly stopped by immigration authorities. He was detained for one night and released on bail.

Singh was placed in deportation proceedings, but they were never completed because he voluntarily left the United States a month later. His father had died as a result of complications from his bullet wounds, and Singh returned to India to console his distraught mother. After his departure from the United States, an in absentia deportation order was entered against him.

Shortly after his return to India, Singh's mother also died, and he remained in India to farm the land he had inherited. He claims that during the next six years, members of the Babbar Khalsa repeatedly made threatening calls to him, claiming to be the true heirs of his 120 acres of land. Singh complained to the police, but there was no response. Singh testified that he did not change his phone number because he believed that the harassers would be undeterred and that the calls would continue after they inevitably obtained his new number.

In 2002, Singh was returning to his home when he was attacked by Babbar Khalsa members, including his neighbor, Jasbeet Singh (Jasbeet). Petitioner testified that Jasbeet encouraged the attackers to kill him, so that "everything would be ours, his home, his property." Singh suffered a head injury during the assault, was briefly unconscious, and was taken to the hospital by another neighbor. He explained that he had no documentary evidence of his medical treatment because the doctor was "afraid of sending anything to America."

Two years after this attack, Singh again decided to leave India. He had no remaining family in the country and was afraid of further physical harassment by the Babbar Khalsa. He sold a portion of his property to pay the smuggler's fees, and traveled to the United States by way of Moscow, Cuba, and Venezuela. From this last stop, he took a boat to Puerto Rico, where he was immediately detained.

On January 5, 2006, Singh appeared with counsel at the hearing before the IJ, where he recounted the history described above. Four days later, the IJ denied Singh's applications for asylum, withholding of removal, and protection under the CAT. The IJ found that Singh's credibility was questionable, that his testimony was weak and uncorroborated, and that he had not properly demonstrated that the persecution he claimed was on account of any of the statutory grounds for seeking asylum or other relief from deportation. On May 9, 2006, the BIA affirmed. In response to a motion from the government, we vacated the Board's order of removal and remanded the case to the BIA to address the effects on petitioner's application of the REAL ID Act of 2005, which amended various provisions of the Immigration and Nationality Act (INA) applicable to asylum seekers. See Div. B. of Pub.L. No. 109-13, 119 Stat. 302-23 (2005).¹

On remand, the BIA again affirmed the IJ's denial of petitioner's application. The BIA held that Singh had failed to establish past persecution or a well-founded fear of future persecution on account of one of the five grounds enumerated in the statute. See 8 U.S.C. § 1101(a)(42)(A) (identifying the five grounds as race, religion, nationality, membership in a particular social group, and political opinion). Specifically, the Board found that Singh's injuries in the 1995 shooting were "only coincidental" to the shooting of his father and that the 2002 attack on Singh was only for economic reasons. It therefore concluded that Singh was ineligible for asylum, withholding of removal, or CAT protection. This petition for review followed.

II.

A. Standard of Review

When the BIA both adopts the decision of an immigration judge and adds a new ground for upholding the result, "this court reviews the IJ's decision as though it were the BIA's to the extent of the adoption, and the BIA's decision as to the additional ground." Berrio-Barrera v. Gonzales, 460 F.3d 163, 167 (1st Cir.2006). Whether the harm suffered by an asylum applicant was inflicted "on account of" a protected ground is "generally [a] question[] of fact." Sompotan v. Mukasey, 533 F.3d 63, 68 (1st Cir.2008). We review factual findings underlying the denial of asylum using the deferential substantial evidence standard, Sunoto v. Gonzales, 504 F.3d 56, 60 (1st Cir.2007), and we must "uphold the BIA's decision `unless any reasonable adjudicator would be compelled to conclude to the contrary.'" Silva v. Gonzales, 463 F.3d 68, 72 (1st Cir.2006)(quoting 8 U.S.C. § 1252(b)(4)(B)).

B. Eligibility for Asylum

To establish eligibility for asylum, an alien must show that he is unwilling or unable to return to his country of origin "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A).² The REAL ID Act added two important elements to the alien's burden of proof.

First, under the REAL ID amendments, the alien must show 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." REAL ID Act § 101(a)(3), 8 U.S.C. § 1158(b)(1)(B)(i) (emphasis added). Even before the passage of the REAL ID Act, petitioners were required to prove a nexus between the alleged persecution and one of the statutory grounds. INS v. Elias-Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Courts required a showing that the persecution the alien suffered was, or would be, based "at least in part" on an impermissible motivation. Sanchez Jimenez v. U.S. Atty. Gen., 492 F.3d 1223, 1232-33 (11th Cir.2007).

While the Act did not "radically alter[ ]" this standard, In re J-B-N & S-M-, 24 I. & N. Dec. 208, 214 (BIA 2007), the REAL ID Act clarified the petitioner's burden to show that at least one of the statutory grounds was "one central reason" for the persecution. In many cases, of course, persecutors may have more than one motivation....