Singh v. Whitaker
| Decision Date | 24 January 2019 |
| Docket Number | Nos. 16-70823,16-72285,s. 16-70823 |
| Citation | 914 F.3d 654 |
| Parties | Narinder P. SINGH, aka Narinder Pal Singh, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert B. Jobe (argued) and Morgan Russell, Law Office of Robert B. Jobe, San Francisco, California, for Petitioner.
Alexander J. Lutz (argued), Trial Attorney; Anthony C. Payne, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX1-984
Before: RAYMOND C. FISHER and MILAN D. SMITH, JR., Circuit Judges, and ELAINE E. BUCKLO,* District Judge.
Narinder Pal Singh, a citizen of India and a member of the political party Shiromani Akali Dal Amritsar (Mann Party), petitions our court to review the Board of Immigration Appeals’ (BIA) decision denying his claims for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). After suffering multiple physical attacks at the hands of the Punjabi police and Congress Party members due to his participation in Mann Party events, Singh fled India. He initially entered the United States in January 2013. The Immigration Judge (IJ) denied all of Singh’s claims. The BIA also denied Singh all relief sought, and then denied his motion to reconsider.
We hold that the BIA erred in failing to conduct a reasoned analysis with respect to Singh’s situation to determine whether, in light of the specific persons or entities that caused his past persecution, and the nature and extent of that persecution, there are one or more general or specific areas within his country of origin where he has no well-founded fear of persecution, and where it is reasonable for him to relocate pursuant to the factors set forth in 8 C.F.R. § 1208.13(b)(3). Because the BIA did not conduct a sufficiently individualized analysis of Singh’s ability to relocate within India outside of the state of Punjab, we grant the petition for review and remand the withholding of removal and asylum claims to the BIA. However, we deny review of Singh’s claims for humanitarian asylum and CAT protection.
Narinder Pal Singh is a native and citizen of India. He entered the United States on or about January 27, 2013 through the Nogales, Arizona port of entry, without possessing a valid entry document. An asylum officer later determined that Singh demonstrated a credible fear of persecution or torture. Singh applied for asylum, withholding of removal, and protection under CAT.
At a hearing before the IJ, Singh testified that he is a Sikh and a member of the Mann Party. The Mann Party advocates for Sikh rights and an independent Khalistan state. Singh attended and assisted at Mann Party rallies, and distributed leaflets.
Singh experienced several threats and suffered physical harm due to his membership in the Mann Party. He received telephonic threats in May and June of 2008, and again in October 2012. In June 2008, the police arrested Singh while he was distributing Mann Party leaflets, and beat him for six days with a leather strap. In August 2010, the police arrested Singh and detained him for ten days after protesting India’s Independence Day. During Singh’s detention, the police beat him with their fists and sticks, demanding that he stop supporting Khalistan and the Mann Party. Finally, in January 2012, the police arrested Singh and took him to the police station, where they beat him. In addition, Congress Party members beat Singh in April 2012, when he was returning from a Mann Party blood drive, and again in September 2012, while he was returning from a Mann Party event. After almost all of these beatings, Singh required hospital treatment, including multiple-day hospitalizations. Singh eventually fled India in November 2012.
After Singh left India, the police continued going to his house in Punjab to ask where he was. In February 2014, police and Congress Party members went to his house in Punjab and attacked his father, breaking his father’s arm in the process.
Singh testified that it was not possible for him to live outside Punjab in India because, as a Mann Party member, the police would look for him and might kill him. He also noted that the police never charged him with any crimes after his several arrests.
The IJ denied all the relief sought by Singh. The IJ accorded Singh’s testimony and declaration "full evidentiary weight," yet found the Department of Homeland Security (DHS) rebutted the presumption of his well-founded fear of future persecution. Specifically, the IJ considered the submitted country-conditions evidence and found that Singh could safely and reasonably relocate outside Punjab within India. The IJ noted that low-level Mann Party members not wanted by the Indian central authorities were unlikely to be targeted outside of Punjab, and that there was no evidence the Congress Party members who harmed Singh could find him outside Punjab. The IJ also found relocation reasonable given Singh’s "good health and job skills" and the fact that Sikhs no longer face violence or legal obstacles when moving within India.
Further, the IJ found that the threats and physical harm inflicted upon Singh did not rise to the requisite level to warrant humanitarian asylum, and that he had not shown it was more likely than not he would be tortured if he returned to India, as required for protection under CAT.
Singh appealed the IJ’s decision, which the BIA affirmed. The BIA found that the evidence supported the IJ’s determination that DHS carried its burden to show Singh could safely and reasonably relocate outside Punjab within India. The BIA also agreed with the IJ’s determination that Singh was not entitled to humanitarian asylum, and his conclusion that Singh did not qualify for CAT relief.
In his motion to reconsider filed with the BIA, Singh argued that the evidence did not establish by a preponderance that he could engage in his political activities outside Punjab more safely than inside the state, and asserted that the IJ failed to identify a specific area of the country to which he could relocate as required by BIA precedent. Singh also argued that the BIA’s determination that he could reasonably relocate was based on unsubstantiated assertions regarding his employment prospects. Finally, Singh contended that CAT relief was warranted based on his past torture and the current country conditions. The BIA denied the motion to reconsider, finding no legal or factual errors in its analysis and stating it need not identify a specific area of India suitable for relocation. Singh’s appeals from both the denial of the motion to reconsider and the BIA’s decision are now consolidated before us.
We have jurisdiction over Singh’s petition pursuant to 8 U.S.C. § 1252(a)(1). Where, as here, the BIA reviewed the IJ’s factual findings for clear error, and reviewed de novo all other issues, our review is "limited to the BIA’s decision, except to the extent the IJ’s opinion is expressly adopted." Hosseini v. Gonzales , 471 F.3d 953, 957 (9th Cir. 2006). We review the BIA’s determinations of purely legal questions de novo, and factual findings for substantial evidence. Ali v. Holder , 637 F.3d 1025, 1028–29 (9th Cir. 2011). Under the substantial evidence standard, we uphold the agency’s determination unless "compelled to conclude to the contrary." Id. at 1029.
On appeal, Singh challenges the BIA’s denial of his claims for asylum, withholding of removal, humanitarian asylum, and protection under CAT, as well as its denial of his motion to reconsider. We grant the petition for review as to Singh’s withholding of removal and asylum claims because while the BIA afforded Singh the presumption of a well-founded fear of persecution, it failed to conduct a sufficiently individualized analysis of his ability to relocate within India. However, we find that substantial evidence supports the BIA’s conclusions regarding Singh’s humanitarian asylum and CAT claims, and we deny review of those claims.
Past persecution "triggers a rebuttable presumption of a well-founded fear of future persecution." Garcia-Martinez v. Ashcroft , 371 F.3d 1066, 1073 (9th Cir. 2004). When an asylum applicant has established that he suffered past persecution, the burden is on the government to show by a preponderance of the evidence that the applicant either no longer has a well-founded fear of persecution in the country of his nationality, or that he can reasonably relocate internally to an area of safety. Afriyie v. Holder , 613 F.3d 924, 934 (9th Cir. 2010) ; 8 C.F.R. § 1208.13(b)(1)(i).
Relocation analysis consists of two steps: (1) "whether an applicant could relocate safely," and (2) "whether it would be reasonable to require the applicant to do so." Afriyie , 613 F.3d at 934. For an applicant to be able to safely relocate internally, "there must be an area of the country where he or she has no well-founded fear of persecution." Matter of M-Z-M-R- , 26 I. & N. Dec. 28, 33 (B.I.A. 2012). To determine the reasonableness of relocation, factors to consider include potential harm in the suggested relocation area, ongoing civil strife in the country, and social and cultural constraints, among others. 8 C.F.R. § 1208.13(b)(3). The factors may not all be relevant in a specific case, and they "are not necessarily determinative of whether it would be reasonable for the applicant to relocate." Id.
Here, the BIA afforded Singh the presumption of past persecution due to his previous beatings at the hands of the police and Congress Party members, and therefore, the burden shifted to the government to show by a preponderance of the evidence that Singh could safely and reasonably relocate internally.
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