Singh v. Gonzales

• Decision Date: 05 August 2005
• Docket Number: No. 04-3125.,04-3125.
• Citation: 417 F.3d 736
• Parties: Harpal SINGH, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 736

417 F.3d 736

Harpal SINGH, Petitioner, v. Alberto R. GONZALES, Respondent.

No. 04-3125.

United States Court of Appeals, Seventh Circuit.

Submitted May 11, 2005^*.

Decided August 5, 2005.

Shawn Kim, Kim & Wolfe, Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Lyle D. Jentzer, Department of Justice, Washington, DC, for Respondent.

Before COFFEY, MANION, and WILLIAMS, Circuit Judges.

MANION, Circuit Judge.

Harpal Singh seeks asylum and withholding of removal. An immigration judge, however, found that Singh assisted or otherwise participated in the wrongful persecution of others while a member of a local police force in India. The immigration judge therefore denied asylum and withholding of removal. The Board of Immigration Appeals ("BIA") affirmed, as do we.

In 1979, Singh went to work for a local police department in Punjab, India. In 1982, he became a "head constable." In that position, he managed other constables and performed customary police duties, e.g., patrolling, interrogating, investigating, preparing reports, and taking people into custody.

Sikhism is a minority religion in India, which is dominated by the Hindu religion. There is, however, a substantial Sikh population in India's Punjab region. A Sikh separatist movement grew in Punjab during the course of the twentieth century, with considerable violence erupting in the early to mid-1980s between Sikh militants and the authorities. The intense upheaval persisted until the militants were quelled in the mid-1990s.

Singh, himself a non-militant Sikh, served as head constable during those hostilities. Stopping true militants—who were, for example, perpetrating indiscriminate bombings on railway stations and other public places—is certainly a legitimate police activity. Nevertheless, consistent with our own State Department reports, Singh concedes that the Punjabi police force crossed the line. They systematically arrested without cause innocent Sikhs accused of being militants. The police further tortured and sometimes killed the detainees, then falsely claimed that they violently resisted arrest. Singh denies direct involvement in this acknowledged wrongdoing. Yet, Singh does admit that he brought—supposedly unwittingly but certainly repeatedly—innocent Sikhs into the police station where they were wrongfully beaten by others. Singh similarly concedes that he went on nighttime raids that led to false charges against and beatings of innocent Sikh families. He asserts that his role in these raids was limited to standing guard outside homes to prevent occupants from escaping while other officers were unjustifiably arresting and beating the family members inside. Additionally, Singh states that while he was personally opposed to his police force's oppression of his fellow Sikhs, he elected to continue working for the police for financial reasons.

Finally, however, when a member of his family was affected, Singh had enough. In November 1993, the police raided a local college, arresting several individuals accused of being Sikh militants, including Singh's cousin. Singh did not participate in this particular raid because he was late for work. Nonetheless, Singh was on duty when his cousin arrived at the police station. The police chief had Singh accompany him into the cousin's interrogation room. There is no indication that the chief or any other officer knew that Singh was related to their subject at that juncture. In the room, Singh's cousin was lying handcuffed and unclothed on the floor. The chief interrogated the cousin for information about militants and their activities and did so while kicking the cousin in the stomach. When the chief became dissatisfied with the cousin's denials, he had the cousin hung upside down and beaten by other officers with wooden rods, causing the cousin to vomit.

To all of this, Singh was an observer, but, at some point during the session, the police chief told Singh to retrieve a belt studded with nails to be used against the cousin. Singh did not comply with the chief's order due to his self-described state of shock at witnessing a relative being tortured. The chief berated Singh, yelling that Singh was "crazy" for not following orders. The chief then dismissed Singh from the room. Later, in the chief's office, the chief told Singh that Singh should consider himself "lucky" because the chief was not going to suspend Singh since it was the first time that Singh had disobeyed the chief's orders. Prior to his cousin's ordeal, Singh served under the direct command of this particular police chief for approximately nine months. Even before he began working for this chief, Singh says that he knew that this chief was "corrupt and notorious," describing the chief as the most "vicious person in the whole Punjab Police Force" and as having the "worst record of torturing Sikhs and killing them."

Fearing that the chief would continue to live up to this brutal billing, Singh went to speak with his cousin after the interrogation and after another detainee arrested with the cousin had died in the jail. The cousin told Singh that he was innocent, denying all involvement in the militant movement. Shortly thereafter, Singh snuck his cousin out of the police station. Later discovering that Singh had facilitated the escape, the police chief raided Singh's home and arrested Singh. At the police station, the chief interrogated and beat Singh much as he had done with Singh's cousin. The next day, the police released Singh on the condition that, within two weeks, he had to bring his cousin back to the station or otherwise assist the police in capturing the cousin. If he did so, Singh would be forgiven. If he failed, he would be subject to rearrest and further punishment.

In the face of such odious alternatives, Singh fled. From December 1993 to August 1994, he hid at a relative's home in another Indian village. Then, using a false identity, Singh traveled to Thailand. From there, he made his way to Belize, Guatemala, and Mexico and ultimately crossed into the United States in December 1994. According to Singh's conversations with his relatives in India, he is still wanted by the police.

The United States government initiated removal proceedings against Singh in 1999. Singh conceded his removability but sought relief in the form of asylum, 8 U.S.C. § 1158, and withholding of removal, 8 U.S.C. § 1231. The immigration judge denied each application on the basis of her finding that Singh had assisted or otherwise participated in the wrongful persecution of Sikhs. Singh appealed. The BIA summarily affirmed. Singh now petitions this court for review.¹

Congress has unequivocally prohibited asylum and withholding of removal for any alien who "ordered, incited, assisted, or otherwise participated in the persecution" of any individual on account of the individual's "race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i), 1231(b)(3)(B)(i); see also 8 U.S.C. § 1158(b)(1) (applying § 1101(a)(42)). The question here is whether Singh "assisted" or "otherwise participated" in the persecution of Sikhs in India.

This case presents our first opportunity to squarely address the terms "assisted" or "otherwise participated" in persecution for purposes of asylum under §§ 1101(a)(42) and 1158(b)(2)(A)(i) and of withholding of removal under § 1231(b)(3)(B)(i) in a published opinion. See Mousa v. INS, 223 F.3d 425, 428-29 (7th Cir.2000) (raising issue but resolving case on another ground); see also Ofosu v. McElroy, 98 F.3d 694, 701 (2d Cir.1996) (different procedural posture but observing absence of published authority). We have applied these terms in a different statutory context concerning the deportation of former Nazi concentration camp guards and similar officers. See 8 U.S.C. §§ 1182(a)(3)(E)(i) & 1227(a)(4)(D); see, e.g., Naujalis v. INS, 240 F.3d 642, 646-47 (7th Cir.2001); Tittjung v. Reno, 199 F.3d 393, 397-99 (7th Cir.1999). In that statutory setting, which exclusively pertains to Nazis from the period of 1933 to 1945, our case law is quite clear: membership in the ranks of Nazi guards is sufficient to constitute assistance in prohibited persecution. See Naujalis, 240 F.3d at 646-47; Tittjung, 199 F.3d at 397-99 (citing Kalejs v. INS, 10 F.3d 441, 444 (7th Cir.1993); Kairys v. INS, 981 F.2d 937, 942-43 (7th Cir.1992); Kulle v. INS, 825 F.2d 1188, 1192-93 (7th Cir.1987); Schellong v. INS, 805 F.2d 655, 661 (7th Cir.1986)). This line of cases, however, is not fully compatible with the present statutory and factual situation for an important reason. Unlike Nazi concentration camps, whose complete existence was premised upon the persecution of innocent civilians, see Schellong, 805 F.2d at 661, local Punjabi police departments served traditional, legitimate law enforcement purposes and did not exclusively engage in the persecution of innocent Sikhs, see id. (observing difference between Nazi concentration camp guards and local police officers).

Singh's case therefore requires a certain amount of "line-drawing"; a distinction must be made between genuine assistance in persecution and inconsequential association with persecutors. Fedorenko v. United States, 449 U.S. 490, 512-13 n. 34, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981) (different statutory setting but seminal case on persecution assistance matters; indicating that persecution cases beyond the Nazi-guard context "may present more difficult line-drawing problems."). In other words, simply being a member of a local Punjabi police department during the pertinent period of persecution is not enough to trigger the statutory prohibitions on asylum and withholding of removal. See Hernandez v. Reno, 258 F.3d 806, 813-14 (8th Cir.2001) (citing Fedorenko, 449 U.S. at 512-13 n. 34, 101 S.Ct. 737); see also Vukmirovic v. Ashcroft, 362 F.3d 1247,...