Singh v. Garland, 20-72806

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtGILMAN, Circuit Judge:
PartiesShamsher Singh, Petitioner, v. Merrick B. Garland, Attorney General, Respondent.
Docket Number20-72806
Decision Date14 September 2022

Shamsher Singh, Petitioner,

Merrick B. Garland, Attorney General, Respondent.

No. 20-72806

United States Court of Appeals, Ninth Circuit

September 14, 2022

Argued and Submitted June 7, 2022 Seattle, Washington

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A215-906-373

Maleha Nasar Khan-Avila (argued), Riverside, California; Erika Roman, Law Office of Erika Roman, Woodland Hills, California, for Petitioner.

Sarah L. Martin (argued), Trial Attorney; Sabatino F. Leo, Assistant Director; Brian Boynton, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Ronald Lee Gilman, [*] Sandra S. Ikuta, and Eric D. Miller, Circuit Judges.




Granting in part and denying in part Shamsher Singh's petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel held that substantial evidence did not support the BIA's determination that the harm Singh suffered did not rise to the level of past persecution, but substantial evidence did support the BIA's determination that the harm did not amount to past torture and that Singh failed to show that he would more likely than not face a clear probability of future torture.

Observing that the court has applied both de novo and substantial evidence review to the question of whether a petitioner's past harm rose to the level of persecution, the panel wrote that it need not address which standard applied because the harm Singh suffered rose to the level of persecution under the more deferential substantial evidence standard. The panel concluded that five factors compelled the conclusion that Singh experienced serious harm amounting to persecution: (1) he was forced to flee his home after being repeatedly assaulted; (2) one of those incidents involved a death threat; (3) he was between the ages of 16 and 18 when the attacks occurred; (4) his brother also experienced this violence; and (5) this court has already recognized that Mann Party members have faced persistent threats in the region of India where Singh was twice attacked. Explaining that the past-persecution analysis is informed by comparing the facts of a petitioner's case with


those of similar cases, the panel considered the cases the BIA cited in its decision and concluded that they were distinguishable. The panel wrote that the combination of death threats and physical violence that Singh experienced was squarely in line with what this court has held is sufficient to compel a finding of past persecution.

The panel clarified that the BIA had not resolved other issues relevant to past persecution, including whether the Indian government was unwilling or unable to control Singh's attackers, and whether the persecution was on account of a statutorily protected ground. And because the BIA concluded that Singh had not demonstrated past persecution, the BIA had improperly placed the burden on Singh to show that he could not reasonably relocate within India to avoid future persecution. The panel explained that if Singh is able, on remand, to demonstrate that the serious harm he suffered was on account of a statutorily protected ground at the hands of individuals whom the government was unable or unwilling to control, then that showing would give rise to a presumption of a well-founded fear of future persecution and shift the evidentiary burden to the government to rebut that presumption by showing that there has been a fundamental change in circumstances concerning Singh's well-founded fear of future persecution or that Singh could avoid future persecution by reasonably relocating to another part of India.

The panel held that substantial evidence supported the BIA's determinations that Singh did not suffer past treatment amounting to torture, and that he failed to establish that it is more likely than not that he will be tortured in India by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.


Concurring, Judge Miller wrote to express his view that the en banc court should take up the issue, if the Supreme Court does not do so sooner, of what standard of review applies to the BIA's determination that the harm an alien suffered was not sufficiently severe to constitute persecution. Judge Miller wrote that whatever the standard of review, this court's cases in this area permit no conclusion other than that the harm that Singh suffered constituted persecution.

Dissenting, Judge Ikuta wrote that a determination by the BIA that an alien is not entitled to asylum must be upheld unless a reasonable factfinder would be compelled to conclude to the contrary. Judge Ikuta wrote that the majority flipped this standard on its head. Instead of deferring to the BIA's determination as one of potentially many reasonable possibilities, the majority claimed that the BIA's decision was contrary to court precedent. Judge Ikuta explained that this court's precedent encompasses wide-ranging views of what constitutes persecution, and that a fair review of its cases shows that the majority reached its conclusion only by cherry-picking similar facts in cases where the court has reversed the BIA, and distinguishing similar facts in cases where it has upheld the BIA.



GILMAN, Circuit Judge:

Shamsher Singh, a native and citizen of India, petitions for review of an order of the Board of Immigration Appeals (BIA) dismissing his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Singh asserts that he suffered past persecution and has a well-founded fear of future persecution due to his familial association with his brother, who is a member of the Shiromani Akali Dal Party (Mann Party), and his own affiliation with that Party. The Mann Party advocates for the creation of a sovereign state for Sikh people and is opposed by the Congress Party, one of India's major political parties.

The immigration judge (IJ) and the BIA concluded that Singh did not qualify for asylum or withholding of removal because the injuries and threats that Singh had suffered at the hands of Congress Party members were not sufficiently serious. After reaching this conclusion, neither the IJ nor the


BIA proceeded to analyze whether Singh had established the other elements of an asylum claim based on past persecution.

Because the IJ and the BIA determined that Singh did not establish past persecution, Singh bore the burden of proving that he had a well-founded fear of future persecution. The IJ and the BIA concluded that Singh had not borne his burden of proof. They also concluded that Singh did not qualify for CAT protection because he had not established that it is more likely than not that he would be tortured by or at the acquiescence of public officials if he returned to India.

For the reasons set forth below, we GRANT Singh's petition in part, DENY Singh's petition in part, and REMAND to the BIA for further proceedings consistent with this opinion.


Singh entered the United States without documentation in October 2018. He applied for admission to the United States later that same month, just a few days before he turned 18. The Department of Homeland Security commenced removal proceedings against him, charging Singh with inadmissibility because he lacked a valid visa or other entry document when he applied for admission.

Singh attended removal proceedings before an IJ in December 2018. Through counsel, Singh conceded the charges against him, and the court found removability established. Singh then filed the relevant application for asylum, withholding of removal, and protection under CAT.


A. Singh's testimony

In January 2019, Singh testified before the IJ about the circumstances that he faced prior to coming to the United States. Singh stated that members of the Congress Party had verbally and physically attacked him on multiple occasions in 2017 and 2018 because of his affiliation with the Mann Party.

Singh's brother, Harpreet, joined the Mann Party in December 2016. Soon thereafter, Singh started assisting his brother in providing services to the Mann Party. Harpreet was attacked by members of the Congress Party in April and August 2017, suffering serious internal injuries. He subsequently fled to the United States in November 2017.

That same month, Singh was verbally confronted by four members of the Congress Party. They demanded to know where his older brother was. And they threatened the brothers, warning them to stop providing services to the Mann Party and join the Congress Party. These individuals also told Singh to sell drugs on their behalf.

The threats soon escalated. The first physical attack occurred in February 2018 when Singh was returning from offering his prayers at a Sikh temple. Four men approached Singh and told him, again, that he needed to quit the Mann Party and join the Congress Party. The men then slapped Singh on his face, hit his stomach, threw him to the ground, and started kicking his stomach. Singh knew that they were from the Congress Party because they said that Singh needed to join "our party, the Congress Party" and because there was a symbol of a palm on their motorcycles, which symbolizes the Congress Party.


After the February 2018 attack, Singh's grandmother gave him herbal remedies at home. He then reported the incident to the police near his hometown of Maqsudpur. Singh's father accompanied him to make the report. The police told Singh and his father that something was wrong with Singh for trying to file a false report against the government that was currently in power and that Singh had better leave the police station immediately.

A second physical attack occurred in July 2018...

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