Singh v. Moschorak, 94-55400
| Decision Date | 28 April 1995 |
| Docket Number | No. 94-55400,94-55400 |
| Citation | 53 F.3d 1031 |
| Parties | Hardev SINGH, Petitioner-Appellant, v. Robert MOSCHORAK, District Director, United States Immigration and Naturalization Service; Immigration and Naturalization Service, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert B. Jobe, Jobe & Melrod, San Francisco, CA (argued), and Daniel Wolf, Hughes, Hubbard and Reed, Washington, DC, for petitioner-appellant.
Leon W. Weidman, Asst. U.S. Atty., John B. Bartos, Sp. Asst., Los Angeles, CA, for respondents-appellees.
Appeal from the United States District Court for the Central District of California.
Before: FERGUSON, BEEZER and NOONAN, Circuit Judges.
Hardev Singh appeals a decision of the district court remanding his case to the Board of Immigration Appeals (the Board). We remand to the district court.
Singh entered the United States using an alias and was therefore excludable under 8 U.S.C. Sec. 1182(a)(6)(C). He did not contest his excludability but sought asylum under 8 U.S.C. Sec. 1158(a) and withholding of deportation under 8 U.S.C. Sec. 1253(h). At proceedings initiated by the Immigration and Naturalization Service (the Service) before Immigration Judge Thomas Fong, Singh testified as follows:
He was born in 1959 and was a resident of the Amristar district, Punjab, India. A Sikh, he had been since 1977 a member of the All India Sikh Student Federation (the Student Federation). His father was the treasurer of Akali Dal, a political party of Sikhs. According to Singh, the elected representatives who were members of this party were not permitted to take up their elected positions because as Sikhs they carried small swords from which, on religious grounds, they could not separate themselves.
On June 7, 1984 the Indian army engaged in conflict with Sikhs at the Sikhs' Golden Temple in Amristar; many Sikhs were killed; and the Golden Temple was seriously damaged. By loudspeaker Singh summoned the people of his village to go with him to see the Golden Temple. He was arrested by the army, beaten, blindfolded, a tin box was put on his head, and he was put in a well for four days; he became unconscious. For the next 20 days he was blindfolded and made to stand in the sun and questioned by officials. He was released on August 2 and resumed his work for the Student Federation.
In June 1985 he was carrying posters to another town to commemorate "the black In June 1989 Singh was attending a conference in Amristar commemorating members of the Student Federation who had been killed by the police. Permission to hold the conference had been given by the district commissioner. Singh was arrested, beaten and kicked and his legs pulled apart, racking his muscles; he became unconscious. He was threatened with death unless he left the Student Federation. After a second day of treatment in this fashion he had lumps all over his body and was unable to walk. The third day he was beaten and hung upside down. The following day melted wax was poured on his feet, causing blisters. On the next day the police trampled on the blisters and kicked him in the face; his front teeth were broken. He was again hung upside down and was drenched in blood. He was unable to eat because his face was swollen. He was given no medical aid. After two and one half months in custody, he was released after his family paid 50,000 rupees to the police. On release from custody Singh entered the hospital for two weeks where he was treated for injury to his feet, kidneys, and liver. During this period both his mother and his wife were interrogated about him and beaten. His brother was also arrested and his whereabouts since his arrest are unknown.
day" of the previous year's attack on the Golden Temple; the posters instructed Sikhs to wear black in memory of the day. He was picked up by India Reserve Police and security forces, taken to Amristar, beaten on his feet for 20 minutes, and held for 10 days. His brother-in-law, who was the president of the Student Federation, died under interrogation by the reserve police.
On July 20, 1992 Singh was again caught carrying posters on behalf of a strike on July 22 to protest the disappearance of Sikhs. He was again beaten and his legs were again racked; he lost consciousness. The second day he was treated in the same way. On the third day he was subjected to electric shock and his arms were racked. He was told that he must leave the Student Federation.
After this episode, he decided to leave India. His father, a farmer, sold his tractor in order to finance his trip to Nepal and then to the United States.
After hearing this testimony the Immigration Judge denied Singh's asylum and the withholding of deportation. Singh appealed to the Board, which per curiam affirmed the decision of the Immigration Judge. The basis of the Board's decision was twofold. First, there was Second, Singh had failed to show that he faced a threat of prosecution in any other part of India except the Punjab; the Board noted the advisory opinion of the State Department that large numbers of Sikhs led peaceful lives in other parts of India. In a separate opinion setting out the situation of the Sikhs in India, Board Member Heilman concurred.
Singh then brought this action of habeas corpus in the district court. The magistrate noted that the Board had accepted Singh's testimony as true and so he would accept it as true. He followed the usual rule that the Board's factual determinations must be accepted unless there is a lack of substantial evidence to support them. INS v. Elias-Zacharias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992); Castillo v. INS, 951 F.2d 1117, 1120 (9th Cir.1991). The magistrate held that the Board's finding that Singh had not been persecuted for his political opinion was not supported by substantial evidence, observing that the Board failed to distinguish efforts to arrest and persecute individuals suspected of criminal activity from punishment without judicial process. No doubt, the magistrate must have had in mind the occasion where, without any judicial process, Singh was arrested, imprisoned, and tortured for attending a conference to be held by the permission of the district commissioner. The magistrate concluded: "Consequently, petitioner has established asylum eligibility on the basis of past persecution The magistrate also addressed the alternative ground of the Board's decision and noted that the advisory opinion from the State Department...
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