Singh v. Garland

• Decision Date: 14 September 2022
• Docket Number: 20-72806
• Parties: Shamsher SINGH, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

57 F.4th 643

Shamsher SINGH, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 20-72806

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 7, 2022 Seattle, Washington

Filed September 14, 2022

Amended January 12, 2023

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;

Opinion by Judge Gilman;

Concurrence by Judge Miller ;

Dissent by Judge Ikuta

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, ––– U.S. ––––, 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.

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.

I. BACKGROUND

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 when Singh was returning home from the family's farm. Singh was on his bicycle alone when a vehicle approached him and stopped in front of his bicycle. Five men emerged from the vehicle and told Singh that he would suffer the consequences of failing to join their party and of attempting to file a report with the police. The men beat Singh with hockey sticks all over his back and arms. They told Singh that they were going to kill him.

Some nearby farmers heard Singh's screams and ran toward the group. This caused the men to run back to their vehicle and leave. The farmers took Singh to the village doctor, who provided him with bandages and medication. Singh did not report this second attack to the police because they had told him after the first attempted report "that if you ever show up over here again we will frame you in a false case and lock you up."

During the hearing before the IJ, Singh testified that he could not safely relocate within India because the Congress Party would find him wherever he moved. He explained that, even in a city as large as New Delhi, he could be found because his identification and information would be processed if he sought housing or an education.

Singh explained that, after staying in Maqsudpur "in a hiding manner" for a few weeks, he lived with his uncle in Plath until September 2018. At that point Singh left India.

B. The IJ's decision

The IJ issued a decision finding Singh removable as charged and denying his applications for asylum, withholding of removal, and CAT relief. From the outset, however, the IJ found Singh credible.

Despite that finding, the IJ declined to "find the totality of the record here support[ed] a finding of past persecution" because the IJ found no evidence in the record to show that Singh suffered "any serious injuries" or any that "required serious medical attention" from his attacks. In addition, the IJ found that Singh's continued presence in Maqsudpur for nearly a year after the initial verbal confrontation "significant." The IJ also found that "[t]he fact that the police declined to investigate [Singh's] vague accusations does not amount to persecution. Nor does the officer's order to [Singh] to depart the station or face possible arrest amount to persecution."

In evaluating Singh's future-persecution claim, the IJ found that Singh had not established an individualized risk of persecution if he returned to India, nor had he established a practice or pattern of persecution against similarly situated...