Singh v. Garland

• Decision Date: 12 July 2021
• Docket Number: No. 19-60937,19-60937
• Citation: 4 F.4th 322
• Parties: Daljinder SINGH, Petitioner, v. Merrick GARLAND, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

4 F.4th 322

Daljinder SINGH, Petitioner,

v.Merrick GARLAND, U.S. Attorney General, Respondent.

No. 19-60937

United States Court of Appeals, Fifth Circuit.

FILED July 12, 2021

Peter M. Rogers, Rogers & Rogers, P.C., Pittsburgh, PA, for Petitioner.

Stephen Finn, Nicole Thomas-Dorris, U.S. Department of Justice, Civil Division/OIL, Washington, DC, Office of Immigration Litigation, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before Higginbotham, Southwick, and Willett, Circuit Judges.

Patrick E. Higginbotham, Circuit Judge:^*

Daljinder Singh applied for asylum and protection under the Convention Against Torture, claiming that he feared persecution in India based on his membership in the Akali Dal Amritsar ("Mann Party"), a Sikh-dominated political party. The presiding immigration judge ("IJ") denied his application, finding Singh not credible. The Board of Immigration Appeals ("BIA") dismissed Singh's appeal. Singh filed a petition for review and moved for a stay of removal. We granted Singh an emergency stay of removal pending further order. We now grant Singh a stay pending review of his petition.

I

Singh was a political dissident in Punjab, India, where he was twice assaulted by the party in power, the Bharatiya Janata Party ("BJP"), because of his membership in the Mann Party. He alleges that he was first attacked on June 1, 2018, while hanging posters for the Mann Party. Four people in BJP t-shirts came over and told him to join their party. When he refused, they started beating him. People nearby heard his screams and came to his aid, causing the attackers to flee. Singh spent two days in the hospital receiving treatment for a muscle tear in his thigh and other injuries. When Singh and his father tried to report the attack to the police, the police refused to accept his report because the BJP was the party in power. The police also threatened to prosecute Singh for filing false charges if he returned to the police station.

Two months later, Singh was walking home when four BJP party members forced him into their car and took him to a rural area where they beat him with field hockey sticks and hit him in the face with a metal bangle. Farmers in the area heard Singh screaming and came to his rescue. His assailants fled, telling Singh they would kill him next time. After the attack, Singh had a five-day hospital stay for injuries to his head

, leg, and chin. After being discharged, Singh did not report the attack to the police because of their earlier threat. Instead, he stayed with his sister who lived about 45 miles from his home. Singh's father hired a smuggler, who brought Singh to Mexico. Since leaving India, Singh claims that BJP members have attacked his father twice and his mother once in their search for him.

At his asylum hearing, the IJ, Agnelis Reese, noted that "since October [2019] when a wave of respondents from India have arrived, there has been an emerging pattern and an eerie similarity between the statements presented by the respondents in either credible fear proceedings or in their asylum applications." Singh's claim, she asserted, presented the same fact pattern:

The respondents all appear to be from small farms in, or small towns or villages in India. They all say that they are farmers. All of them appear to be in their early to mid-twenties. They all leave with passports or arrangements made by family members. Some of them know the amount of money paid, some don't. But before they leave their country, in general they say that they had become members of the Mann party. And usually within six to eight months of them joining the Mann party, they are attacked by members of the BJP party. Almost without fail, it is four people who come out of a vehicle, ask them to leave their party and join theirs to sell drugs. If the person refuses, they are beaten. Usually someone comes along and the beating is stopped. But as they leave, they tell them that next time they will kill them. Usually within a few months there is a second encounter, usually with four people. And almost without fail, during the second beating, farmers hear the screams or cries of the respondents and then they appear and rescue the workers and then, or rescue the respondent, and within a few months of that, the respondents leave the country of India, usually with the assistance of agents or someone to assist them in smuggling.

The IJ also noted that the respondents allege their attackers beat them with "sticks, wooden sticks and [field] hockey sticks." The IJ then asked Singh's counsel if he wanted to address the similarities.

Singh's counsel provided explanations during the hearing for many of these similarities. As field hockey is India's national sport, counsel argued that field hockey sticks, like baseball bats in the United States, are prevalent and "the instrument of choice to inflict pain." Counsel also contended that Punjabis, like Singh's family, are predominantly farmers, so the frequent references to farmers merely reflected Punjab's agricultural economy. He also pointed to reports of rampant corruption in India's police forces. The IJ found "Respondent's counsel[’s] explanation [for the similarities] insufficient to rebut the repetitive narrative of applicants from India," but she did not further elaborate. Based on Singh's similar asylum claim and two inconsistencies between Singh's testimony and the evidence in the record, the IJ made an adverse credibility finding, which the BIA affirmed based on the IJ's stated reasons. Singh filed a petition for review and a motion for a stay of removal, which we granted pending further order.

II

We consider four factors in determining whether to grant a stay: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies."¹ The first two factors are the "most critical."²

A

Singh raises two principal arguments in his petition for review. First, he contends that the IJ's near total denial rate for asylum applications reflected a bias and violated Singh's due process rights. Second, he challenges the BIA's conclusion that the IJ adhered to the procedural safeguards the BIA adopted in Matter of R-K-K- , applicable when an IJ relies on inter-proceeding similarities for an adverse credibility determination. We conclude that Singh has made the requisite showing that he is likely to succeed on the merits of both claims.

"It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings."³ "[T]he IJ must conduct deportation hearings in accord with due process standards of fundamental fairness."⁴ Due process requires that an individual "be provided notice of the charges against him, a hearing before an executive or administrative tribunal, and a fair opportunity to be heard."⁵ To succeed on a due process claim, a petitioner "must make an initial showing of substantial prejudice," which requires demonstrating "that the alleged violation affected the outcome of the proceedings."⁶

The IJ here denied relief to asylum seekers in 203 of the 204 cases she presided over from 2014 to 2019, a denial rate of 99.5%. There can be no "right" denial rate. Denial rates vary: from 2014 to 2019, the nationwide denial rate ranged from 25% to 50%.⁷ Still, a consistent and near total denial rate can engender the appearance of bias. We find it likely that a "reasonable man, were he to know all the circumstances, would harbor doubts about the judge's impartiality."⁸

Singh argues that several instances of the IJ's conduct and her failure to apply the procedural safeguards adopted by the BIA in Matter of R-K-K- are evidence of substantial prejudice. Though we disagree that some of the IJ's conduct is sufficient to show prejudice, we find that Singh has made the requisite showing that the IJ's bias affected the outcome of his asylum proceedings based on her noncompliance with Matter of R-K-K- .

Singh first points to the IJ smirking and rolling her eyes, referencing Singh's testimony of attacks against his father as "self-serving," and seemingly disregarding some of the evidence Singh put forward. "[J]udicial remarks ... that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases ordinarily do not support a bias or partiality challenge."⁹ They only do so "if they reveal an opinion that derives from an extrajudicial source" or "if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible."¹⁰ None of the IJ's statements or conduct referenced by Singh reveal either an opinion from an extrajudicial source or a high degree of antagonism.

Singh next points to the IJ's failure to comply with the procedural safeguards required when an IJ relies on inter-proceeding similarities as another way in which the IJ's bias affected the outcome of his claim. "Inter-proceeding similarities" can inform an adverse credibility determination but must be reviewed "with an especially cautious eye."¹¹ In Matter of R-K-K- , the BIA adopted a three-part framework for IJs to use when relying on inter-proceeding similarities:

First, the Immigration Judge should give the applicant meaningful notice of the similarities that are considered to be significant. Second, the Immigration Judge should give the applicant a reasonable opportunity to explain the similarities. Finally, the Immigration Judge should consider the totality of the circumstances in making a credibility determination. Each of these steps must be done on the record in a manner that will allow the Board and any reviewing court to ensure that the procedures have been followed.¹²

The BIA explained that "[t]his framework will permit Immigration Judges to draw reasonable inferences...