Singh v. Garland

• Decision Date: 14 September 2022
• Docket Number: 20-72806
• Parties: SHAMSHER SINGH, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

SHAMSHER SINGH, Petitioner, v. 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

Amended January 12, 2023

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

COUNSEL

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

Sarah L. Martin (argued), Jaclyn G. Hagner, and Aaron D. Nelson Trial Attorneys; Walter M. Evans, Senior Litigation Counsel 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.

ORDER AND AMENDED OPINION

SUMMARY^[**]

Immigration

The panel filed an order (1) amending the opinion filed on September 14, 2022; (2) denying the Respondent's petition for panel rehearing, noting that the majority voted to deny, and Judge Ikuta voted to grant, the petition for panel rehearing; and (3) indicating that no further petitions for rehearing or for rehearing en banc would be entertained. In the amended opinion, the panel granted in part and denied in part Shamsher Singh's petition for review of a decision of the Board of Immigration Appeals, and remanded, holding 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.

As an initial matter, the panel noted that the immigration judge found Singh to be a credible witness. There were only two concerns the IJ expressed regarding Singh's credibility: (1) a minor omission in his declaration; and (2) his testimony contained speculation. The panel wrote that neither concern was sufficient for an adverse credibility determination. The panel noted that the IJ concluded that Singh's testimony was "otherwise consistent with his written statement and plausible in light of evidence of country conditions." The panel further noted that the BIA did not question this credibility determination, and there was no indication that the BIA implicitly found the presumption of credibility rebutted. The panel wrote that the only question for judges reviewing the BIA's factual determinations is whether any reasonable adjudicator could have found as the agency did. Here, the panel deferred to the agency's credibility determination, which was supported by substantial evidence.

Observing that this 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. The panel noted that the IJ and the BIA found no reason to doubt the truth, or persuasiveness, of these five core factors. 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 cautioned that an applicant cannot be said to have the ability to relocate within his home country if he would have to remain in hiding there.

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.

ORDER

The opinion, filed on September 14, 2022, and reported at 48 F.4th 1059 (9th Cir. 2022), is amended as follows:

At 48 F.4th at 1067, the last sentence and its citation in the first paragraph of Part II.B.1. are deleted and replaced with the following paragraph:

The IJ found Singh to be a credible witness. There were only two concerns that the IJ expressed regarding Singh's credibility: (1) a minor omission in his declaration, and (2) his testimony contained speculation. Neither concern was sufficient for an adverse credibility determination, and the IJ concluded that Singh's testimony was "otherwise consistent with his written statement and plausible in light of evidence of country conditions." The BIA did not question this credibility determination, and there is no indication that "the BIA implicitly found the presumption of credibility rebutted." Garland v. Dai, 141 S.Ct. 1669, 1679 (2021). "The only question for judges reviewing the BIA's factual determinations is whether any reasonable adjudicator could have found as the agency did." Id. at 1678. Here, we defer to the agency's credibility determination, which was supported by substantial evidence.

At 48 F.4th at 1068, at the end of the first paragraph of Part II.B.1.i., the following sentence is added:

The IJ and the BIA found "no reason to doubt the truth, or 'persuasiveness,'" of these five core factors. See Plancarte Sauceda v. Garland, 23 F.4th 824, 827 (9th Cir. 2022) (citing Dai, 141 S.Ct. at 1680-81).

At 48 F.4th at 1072, at the end of the last paragraph of Part II.B.2., the following sentence is added:

We caution that "an applicant cannot be said to have the ability to 'relocate' within [his] home country if [he] would have to remain in hiding there." Akosung v. Barr, 970 F.3d 1095, 1102 (9th Cir. 2020).

An Amended Opinion is being filed concurrently with this Order. With the Opinion as amended, the panel majority has voted to DENY Respondent's petition for panel rehearing, filed November 14, 2022. Judge Ikuta has voted to grant the petition for rehearing. No subsequent petitions for panel or en banc rehearing will be entertained.

OPINION

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...