Singh v. Ilchert

• Decision Date: 16 October 1995
• Docket Number: No. 94-17162,94-17162
• Citation: 69 F.3d 375
• Parties: 95 Cal. Daily Op. Serv. 8480, 95 Daily Journal D.A.R. 14,627 Surinder SINGH, Petitioner-Appellant, v. David N. ILCHERT, District Director of the U.S. Immigration and Naturalization Service, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 375

69 F.3d 375

95 Cal. Daily Op. Serv. 8480, 95 Daily Journal

D.A.R. 14,627

Surinder SINGH, Petitioner-Appellant, v. David N. ILCHERT, District Director of the U.S. Immigration and Naturalization Service, Respondent-Appellee.

No. 94-17162.

United States Court of Appeals Ninth Circuit.

Submitted Oct. 16, 1995. ^*

Decided Nov. 1, 1995.

Robert B. Jobe, Jobe & Melrod, San Francisco, California, for petitioner-appellant.

Ellen Sue Shapiro, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for respondent-appellee.

Appeal from the United States District Court for the Northern District of California.

Before PREGERSON, FERNANDEZ, Circuit Judges, and McLAUGHLIN, District Judge. ^**

PER CURIAM:

Surinder Pal Singh, a native of Punjab, India, appeals the district court's denial of his petition for habeas corpus brought pursuant to 28 U.S.C. Sec. 2254 and section 106(b) of the Immigration and Nationality Act ("INA"), 8 U.S.C. Sec. 1105a(b). Singh contends that the Board of Immigration Appeals ("BIA") erred in denying his application for asylum and withholding of deportation. We have jurisdiction under 28 U.S.C. Secs. 1291 and 2253. We affirm in part, reverse in part and remand to the District Court for further proceedings.

FACTS

Surinder Pal Singh is a 27-year-old native of Punjab, India. Singh is a devout Sikh. Since the early 1980s, a part of the Sikh community in Punjab has been fighting to establish a Sikh state independent of India. Beginning in February 1988, Sikh separatists repeatedly demanded assistance in their campaign from the unwilling Singh family. They forced themselves into the Singh home, ate their food, and slept under their roof.

The Indian police learned of the apparent support of the Singh family for the separatists and arrested Singh on June 15, 1989. Despite Singh's assurances that he did not support the separatists, the police interrogated and beat Singh for two-and-a-half hours, until he lost consciousness. The police then revived him with water and resumed the beatings. They kept Singh detained for two days.

The Sikh separatists continued to visit Singh's home at least once every six weeks. In January 1990, the police arrested Singh again and imprisoned him for six days. On each of the six days, the Indian police tightened a wide leather belt around Singh's torso until he lost consciousness. The police finally released Singh when the leaders of his village intervened on his behalf.

After Singh's release, the separatists continued to visit his house. Fearing that the police would arrest and torture him again, Singh fled from his home to stay with relatives in another part of India. While staying with his relatives, Singh received letters from his family which stated that the police had returned to his house.

Singh decided to flee India when he learned that the police had interrogated and beaten his brothers. Singh was afraid that either the central police or the Punjab police would find him wherever he went in India. His father paid 80,000 rupees to an "agent" who arranged Singh's travel from India to the United States.

Singh arrived in San Francisco on March 15, 1991. Because Singh did not have a valid visa, he was arrested by Immigration and Naturalization ("INS") officers at the airport. Singh was charged with being excludable under 8 U.S.C. Sec. 1182(a)(7)(A)(i)(I).

On February 26, 1992, Singh attended a hearing before an Immigration Judge ("IJ"). Singh did not contest that he was excludable, but petitioned for asylum and withholding of deportation. The IJ denied both forms of relief. Singh appealed to the BIA, which affirmed the IJ. The BIA found that Singh did not meet the requirements for asylum under 8 U.S.C. Sec. 1101(a)(42)(A), or withholding of deportation under 8 U.S.C. Sec. 1253(h).

On June 25, 1993, Singh filed a petition for habeas corpus in the United States District Court for the Northern District of California. The district court found that Singh had suffered past persecution on account of his political opinion but denied the writ. Singh now appeals.

ANALYSIS

A. Standard of Review.

A district court's dismissal of a habeas petition is reviewed de novo. Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir.1988). "The issues before this court are thus in the same posture as those before the district court and require us to consider the rulings of the BIA." Singh v. Ilchert ("Ilchert"), 63 F.3d 1501, 1506 (9th Cir.1995). We review the BIA's factual findings under the "substantial evidence" standard. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992). We review questions of law regarding the INA under the de novo standard. Ilchert, 63 F.3d at 1506.

Where, as here, the facts are not in dispute, we must accept as true those facts that petitioner testified to at the IJ hearing. Ilchert, 63 F.3d at 1506. Therefore, "[b]ecause the issues presented in this appeal involve the application of established legal principles to undisputed facts, our review of the BIA's asylum and withholding of deportation determinations is de novo." Id. The legal issue in this case is whether the BIA was correct in placing on Singh the burden of proving country-wide persecution to be eligible for asylum and for withholding of deportation.

B. Asylum.

Under 8 U.S.C. Sec. 1158(a), the Attorney General may grant asylum to an alien who is a refugee. To qualify as a refugee, under 8 U.S.C. Sec. 1101(a)(42)(A), an applicant for asylum must show either past persecution or a "well-founded fear of persecution" on account of the applicant's race, religion, nationality, membership in a particular social group, or political opinion. An applicant can make this showing, and thus be eligible for asylum, in two ways. See Ilchert, 63 F.3d at 1505-1506.

First, the applicant can show past persecution. See 8 C.F.R. Sec. 208.13(b)(1). Once past persecution is demonstrated, then fear of future persecution is presumed, and the burden shifts to the INS to show, by a preponderance of the evidence, that "since the time the persecution occurred conditions in the applicant's country ... have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if ... [the applicant] were to return." 8 C.F.R. Sec. 208.13(b)(1)(i).

An applicant may also qualify for asylum by showing a "well-founded" fear of future persecution. This test includes both subjective and objective components. Shirazi-Parsa v. INS, 14 F.3d 1424, 1427 (9th Cir.1994). The subjective element may be satisfied by an applicant's credible testimony that he fears persecution. Id. The objective element requires the applicant to show " 'by credible, direct, and specific evidence in the record,' ... that persecution is a reasonable possibility." Ilchert, 63 F.3d at 1506 (quoting Diaz-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir.1986)). The applicant may satisfy the objective requirement by producing specific documentary evidence or by testifying credibly and persuasively. Ilchert, 63 F.3d at 1506.

In this case, the BIA found that Singh did not qualify as a refugee because his past persecution was not "on account of" his political opinion. The BIA also held that Singh did not show a "well-founded" fear of future persecution because he did not establish the threat of country-wide persecution.

The district court found that Singh had suffered past persecution on account of his political opinion. The district court explained that the BIA had applied the law incorrectly. The court, however, concluded that Singh was not entitled to asylum because Singh did not show that he had a country-wide fear of persecution were he to return to India.

1. Past Persecution.

We agree with the district court that Singh suffered persecution on account of his political opinion. We have previously held that an applicant can establish past persecution based on political opinion that the government mistakenly imputes to her. Canas-Segovia v. INS, 970 F.2d 599, 601-02 (9th Cir.1992).

Here, Singh clearly was persecuted on account of imputed political opinion. Singh was tortured by the police because they thought he was a supporter of the Sikh separatists. The police accused Singh of being a Sikh separatist and did not believe his assertions to the contrary. There is no evidence in the record to suggest that the harm inflicted on Singh by the police resulted from a legitimate government investigation or criminal prosecution. Because the police imputed to Singh the beliefs of the Sikh separatists and harmed him on that basis, the punishment was inflicted with a political motive. See Ilchert, 63 F.3d at 1508-1510 (alien, accused of being Sikh separatist and tortured, persecuted on account of political opinion). ¹

2. Country-Wide Persecution.

The BIA held and the district court agreed that, even if Singh could show persecution on account of his political opinion, he still was not entitled to asylum because Singh had failed to show a threat of country-wide persecution were he to return to India. Both the district court and the BIA, however, erred in requiring Singh to show a threat of country-wide persecution.

As we recently held, "[t]here is no burden on the applicant to show that his past experience reflected conditions nationwide." Ilchert, 63 F.3d at 1510. Once an applicant demonstrates past persecution, we presume a "well-founded" fear of persecution unless the INS can show by "a preponderance of the evidence" that conditions in the country have changed "to such an extent" that the applicant can no longer have a "well-founded" fear of persecution. 8 C.F.R. Sec. 208.13. If the INS cannot rebut the presumption of a "well-founded" fear of persecution, then the applicant will be found eligible for asylum.

Here, the BIA failed to place the burden of proof on the INS to show, by a preponderance of the evidence, that conditions in India have changed to such an extent that Singh no...