Singh v. Eric H. Holder Jr.

• Decision Date: 08 September 2011
• Docket Number: No. 07–70056.,07–70056.
• Citation: 656 F.3d 1047,11 Cal. Daily Op. Serv. 11559,2011 Daily Journal D.A.R. 13717
• Parties: Bhupinder SINGH, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

656 F.3d 1047

11 Cal. Daily Op. Serv. 11,559

2011 Daily Journal D.A.R. 13,717

Bhupinder SINGH, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 07–70056.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 13, 2011.Filed Sept. 8, 2011.

Inna Lipkin, Law Office of Kuldip S. Dhariwal, Fremont, CA, for petitioner Bhupinder Singh.Tony West, Assistant Attorney General, Civil Division, Carol Federighi, Senior Litigation Counsel, Office of Immigration Litigation, Song E. Park, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for respondent United States of America.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A078–668–982.Before: SIDNEY R. THOMAS and JOHNNIE B. RAWLINSON, Circuit Judges, and CORMAC J. CARNEY, District Judge.^*Opinion by Judge THOMAS; Concurrence by Judge RAWLINSON.

OPINION

THOMAS, Circuit Judge:

In this petition for review, we consider whether the petitioner established changed or extraordinary circumstances that would excuse his untimely application for asylum. When the agency addressed this question, it applied incorrect legal standards. Accordingly, we grant Singh's petition for review and remand this matter to the BIA so that it may apply the correct standards.

I

Bhupinder Singh, a citizen and national of India, entered the United States on August 26, 1999, as a nonimmigrant visitor with initial authorization to remain until September 24, 1999. He fled India on account of abuse he suffered at the hands of police in India, who mistakenly believed that he sympathized with terrorists. The police arrested Singh, without a warrant, three times. Each time, they detained him for a lengthy period of time, up to four days, and questioned him about his activities and knowledge of suspected terrorists. When they detained him, the police severely beat Singh with sticks and leather straps until he lost consciousness. He required medical treatment after each of the three arrests. Singh was released from his first arrest after his parents guaranteed the police that they would watch over him. Singh was released from his third arrest only after his father paid a 60,000 rupee bribe to the police.

After being in the United States for about a month, Singh applied for an extension of his nonimmigrant visa on September 30, 1999. Singh claimed he wanted to stay in the United States because it was not safe to return to India. He hoped that, while he was in the United States, his family could arrange a “settlement” or “compromise” with the Indian police that would allow him to return without being harassed or abused.

The former Immigration and Naturalization Service (now part of the Department of Homeland Security) ¹ approved Singh's visa-extension request nearly a year later on August 17, 2000, retroactively effective. While his first request was pending, Singh submitted a second request to extend his visa to August 24, 2000.

Not long after Singh filed his second request, Indian police arrested Singh's wife at her home. According to Singh's wife's written statement,² the police came to her house late at night on September 6, 2000, asking questions about him and accusing him of being a militant. They then took Singh's wife into custody and “started slapping and dragging[her] and told [her] that now your husband will come to the police station.” Singh's wife told the police she would file a complaint against them. The police then beat her with “wooden rods and told [her] that in the police station they were going to teach [her] how to file a complaint.” Once at the police station, Singh's wife claims the officers locked her in a room, beat her again, and raped her.

Singh filed his application for asylum on November 20, 2000, two-and-a-half months after his wife's arrest. At the time, Singh's second request for a visa extension was still pending.³

Because Singh's application for asylum was filed more than a year after he had first entered the United States, his application was untimely. 8 U.S.C. § 1158(a)(2)(B). The Department of Homeland Security referred his application to the immigration court and placed him in removal proceedings. The Department charged Singh as removable under 8 U.S.C. § 1227(a)(1)(B) for remaining in the United States longer than his visa permitted.

II

Singh conceded removability and sought asylum, withholding of removal, and protection under the Convention against Torture. The immigration judge (“IJ”) found Singh's testimony credible, and he granted Singh's request for withholding of removal to India and protection under the Convention Against Torture.

As to Singh's asylum claim, the IJ concluded that Singh “has in fact been the victim of past persecution by inferences of a government who believes that he is an enemy, who believes he is politically affiliated with a community that seeks an independence.” And:

[B]ased upon past events it is more likely than not, assuming the truth of Mr. Singh's representations, that if he returns to his homeland he will be subject to the same form of maltreatment. Acts of persecution[,] because of political opinion[,] has [sic] been imputed to him, and there clearly exists a pattern and practice as represented in his application.

Singh's application was untimely, but he argued that his wife's arrest was a “changed circumstance” that excused the filing delay under 8 U.S.C. § 1158(a)(2)(D).⁴ The IJ disagreed because Singh did not provide “clear and convincing” evidence that the settlement negotiations amounted to a changed circumstance (the IJ did not consider whether the arrest of Singh's wife was a changed circumstance). As a result, the IJ rejected Singh's asylum application as time-barred.

Singh timely appealed the IJ's decision to the BIA, which adopted the IJ's decision without opinion, citing In re Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994) (noting that adoption or affirmance of a decision of an IJ, in whole or in part, is “simply a statement that the Board's conclusions upon review of the record coincide with those which the Immigration Judge articulated in his or her decision.”).

Singh timely petitioned us to review the BIA's order, but, while that petition was pending, the Government filed an unopposed motion to remand the matter to the BIA so that it could determine whether Singh had established “extraordinary circumstances” under 8 U.S.C. § 1158(a)(2)(D) that would excuse his untimely application.

8 C.F.R. § 1208.4(a)(5)(iv) enumerates “[maintenance] of ... lawful immigrant or nonimmigrant status” as a possible “extraordinary circumstance.” Singh had maintained his lawful nonimmigrant status until August 24, 2000, but the BIA concluded the extraordinary-circumstances exception did not apply for two reasons. First, according to the BIA, Singh's lawful nonimmigrant status “was not directly related to the filing of his application for asylum” because “it was the arrest of his wife that triggered his application and not because he was in lawful nonimmigrant status.” Second, the BIA concluded that Singh unreasonably delayed his asylum application by filing it seven months after his first visa extension expired and three months after his second expired.

Singh timely petitioned us to review both of the BIA's decisions.

III

We have jurisdiction to review Singh's petition under 8 U.S.C. § 1252. We may review the agency's application of the changed or extraordinary circumstances exception to undisputed facts. Vahora v. Holder, 641 F.3d 1038, 1042 (9th Cir.2011); Viridiana v. Holder, 630 F.3d 942, 946 (9th Cir.2011); Taslimi v. Holder, 590 F.3d 981, 984 (9th Cir.2010); Husyev v. Mukasey, 528 F.3d 1172, 1181 (9th Cir.2008); Ramadan v. Gonzales, 479 F.3d 646 (9th Cir.2007) (per curiam). As evident below, the relevant facts are undisputed, so we have jurisdiction.

We review the agency's legal determinations de novo and its factual findings for substantial evidence. Lopez–Birrueta v. Holder, 633 F.3d 1211, 1214 (9th Cir.2011). Under the substantial evidence standard, we will uphold the agency's decision “if the decision is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Tampubolon v. Holder, 610 F.3d 1056, 1059 (9th Cir.2010) (citations and internal quotation marks omitted). We will reverse the agency when “the evidence in the record compels a reasonable factfinder to conclude that the [agency's] decision is incorrect.” Id. (citations and internal quotation marks omitted).

IV

An applicant must ordinarily file an asylum application within one year after arriving in the United States. 8 U.S.C. § 1158(a)(2)(B). However, the Government may still consider a late application if the applicant establishes (1) changed circumstances that materially affect the applicant's eligibility for asylum or (2) extraordinary circumstances directly related to the delay in filing an application. Id. at § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4)(i), (5). Here, the agency applied incorrect legal standards to both of these inquiries. And it erroneously concluded that Singh failed to file his asylum application within a reasonable period of time after his lawful nonimmigrant status expired. We remand this matter to the BIA so that it may apply the correct legal standards in the first instance. Ornelas–Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir.2006) (“But where the BIA applies the wrong legal standard to an applicant's claim, the appropriate relief from this court is remand for reconsideration under the correct standard, not independent review of the evidence.”)

A

“ ‘[C]hanged circumstances' in [8 U.S.C. § 1158(a)(2)(D) ] shall refer to circumstances materially affecting the applicant's eligibility for asylum.” 8 C.F.R. § 1208.4(a)(4)(i); see also Ramadan, 479 F.3d at 657–58. Once an applicant has demonstrated changed circumstances, he must show that the application was filed “within a reasonable...