Manprit Singh v. Eric H. Holder Jr. ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 30 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MANPRIT SINGH, No. 08-74109
Petitioner, Agency No. A099 538 850
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued April 16, 2013 Submitted October 30, 2013
San Francisco, California
Before: GOODWIN, O’SCANNLAIN, and N.R. SMITH, Circuit Judges.
Manprit Singh petitions for review of the Board of Immigration Appeals’
(BIA) dismissal of his petition seeking asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). We have jurisdiction
pursuant to 8 U.S.C. § 1252, and we grant Singh’s petition for review.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
In concluding that Singh did not demonstrate past persecution, the BIA
found that Singh failed to corroborate his belief that Congress Party members were
responsible for the vehicular assault against Singh. This was error because, before
requiring such corroboration, Singh was not afforded notice and an opportunity to
respond with evidence or to explain why such corroborating evidence was
unavailable. See Ren v. Holder, 648 F.3d 1079, 1090 (9th Cir. 2011).1
On remand, upon providing the requisite notice and an opportunity to
corroborate the asylum claim, past persecution should be determined based on the
totality of the circumstances (e.g., the murder of Singh’s father, Singh’s arrests and
corresponding threats by police, corroboration regarding the vehicular assault,
1
The dissent asserts that Ren is not applicable here, because affording notice
and opportunity to present corroborating evidence would be “manifestly futile.”
We disagree. Singh was found credible. Despite this finding, the IJ required
corroboration in order to meet his burden of proof. See Ren, 648 F.3d at 1093.
The BIA held that Singh’s testimony that the Congress Party was involved in his
accident was speculative and that Singh failed to provide corroboration to support
this claim. However, Singh testified credibly that he could obtain the necessarily
corroboration evidence (affidavits from his friends). Singh also testified credibly
that members of the Congress party had admitted to causing the accident, again
suggesting that he could corroborate his testimony. Such affidavits would provide
the objective evidence the IJ and BIA were seeking to grant relief. Under Ren,
Singh should have been afforded an opportunity to obtain evidence to corroborate
his credible testimony. Id. Our review of this issue is limited to whether Singh
was afforded that opportunity. See id. Instead, the dissent wrongly speculates
about the contents of the corroborating evidence in order to determine whether the
opportunity should be afforded in the first instance.
2
corroboration regarding Singh’s friends’ attempted reporting of the incident to
police, Congress Party members’ implied death threat against Singh communicated
to his mother). See Guo v. Ashcroft, 361 F.3d 1194, 1203 (9th Cir. 2004);
Madrigal v. Holder, 716 F.3d 499, 504 (9th Cir. 2013) (finding error by the BIA
where BIA found no past persecution after “viewing each incident in isolation,
instead of examining the totality of the circumstances” and instructing BIA to
consider the incidents “in the context of a larger pattern of conduct”).
3
Because we remand on the issue of past persecution, we do not reach
Singh’s claims of future persecution, withholding of removal, or relief under CAT.
See INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam).2
PETITION FOR REVIEW GRANTED.
2
The dissent suggests that the IJ made an alterative finding that, assuming
persecution, Singh could relocate in India. Again, we disagree. The IJ’s holding
was not an alterative finding, assuming persecution, but rather a determination of
whether Singh was eligible for asylum based on a well-founded fear of future
persecution. See 8 C.F.R. § 1208.13(b); see also Halim v. Holder, 590 F.3d 971,
976 (9th Cir. 2009) (“In the absence of past persecution, an applicant may still be
eligible for asylum based on a well-founded fear of future persecution.”). The IJ
stated that Singh had the burden of proof, an appropriate statement in making a
determination of a well-founded fear of persecution. If the IJ were making a
relocation finding, after assuming persecution, the burden would instead belong to
the government. Because neither the IJ nor the BIA held that the relocation
analysis was an alternative basis for denying relief, we cannot affirm on a ground
on which the agency did not base its decision. See Azanor v. Ashcroft, 364 F.3d
1013, 1021 (9th Cir. 2004) (“[W]e must decide whether to grant or deny the
petition for review based on the Board’s reasoning rather than our own
independent analysis of the record.”).
Lastly, even if the IJ’s decision on relocation was an attempt to make an
alternative finding (an argument that only the dissent makes), the IJ’s decision
lacks clarity; therefore remand is necessary “to ensure that [the agency] evaluates
the relocation issue in accord with the proper burden of proof.” Afriyie v. Holder,
613 F.3d 924, 935 (9th Cir. 2010).
4
FILED
Singh v. Holder, No. 08-74109 OCT 30 2013
O’SCANNLAIN, Circuit Judge, dissenting. MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
The court’s decision in Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011), does
not control this case. Ren states clearly that, “[i]f a credible applicant has not yet
met his burden of proof, then the IJ may require corroborative evidence,” and, if he
so requires, “must give the applicant notice of the corroboration that is required
and an opportunity either to produce the requisite corroborative evidence or to
explain why that evidence is not reasonably available.” Id. at 1093 (emphasis
added). This rule does not mandate that every credible applicant who has yet
failed to carry his burden of proof be afforded with notice and opportunity to
present corroborating evidence.1 Such a conclusion, furthermore, would be
manifestly futile in this case. The IJ found that Singh credibly testified to the
following facts: (1) he was hit intentionally by the jeep; (2) other people in the
village told him they believed the Congress Party was behind the attack; and (3)
there were no witnesses to the attack. Singh never in his testimony claimed that
1
There will certainly be cases where the applicant can present credible
testimony that does not satisfy the burden of proof, and corroboration is
unnecessary or futile. This is consistent with the statute, which states: “Where the
trier of fact determines that the applicant should provide evidence that corroborates
otherwise credible testimony, such evidence must be provided unless the applicant
does not have the evidence and cannot reasonably obtain the evidence.” 8 U.S.C. §
1158(b)(1)(B)(ii). This language, specifically the phrase “where a trier of fact
determines,” implies that the trier of fact may determine that no corroborative
evidence is required.
anyone had direct knowledge of the perpetrators’ identity or political affiliation.
As the IJ noted, “[Singh] even acknowledged that all the people who told him were
merely relying on rumors and none of them had witnessed that these individuals
[who attacked him] were members of the Congress Party.” Thus, the IJ did not
find that corroboration was necessary—indeed, the IJ seemed to believe
corroboration would be impossible. Even if Singh obtained declarations from his
friends as to the perpetrators of the attack, these declarations would still be
speculative and would fail to satisfy Singh’s burden of proof. The IJ did note that
Singh provided “no objective evidence” to support his claims. But this is a far cry
from a determination that the applicant “should provide evidence.”
Furthermore, the IJ clearly stated, as an alternative ground for the
disposition, that Singh had failed to demonstrate that he could have safely
relocated within his native country.2 Singh argues that this finding should be
2
The relevant regulation states:
[A]n immigration judge, in the exercise of his or her discretion, shall
deny the asylum application of an alien found to be a refugee on the
basis of past persecution if . . . [t]he applicant could avoid future
persecution by relocating to another part of the applicant’s country of
nationality . . . and under all the circumstances, it would be reasonable
to expect the applicant to do so.
8 C.F.R. § 1208.13(b)(1)(i)(B) (emphasis added).
2
displaced because the IJ improperly placed the burden of proof on him and not on
the government where it belongs.3 Such a claim misreads the IJ’s opinion and
misconceives the administrative record. Before concluding that Singh “has not
established that it would be unreasonable for him to relocate,” the IJ had analyzed
and cited the extensive evidence submitted by the United States that tended to
show relocation could be both safe and practicable. During direct as well as cross-
examination, Singh had the opportunity to dispute this evidence and to provide his
own. He did not do so. Indeed, the only evidence that Singh presented on this
issue was his own asseverations that he would have difficulty finding a job and that
the individuals who allegedly persecuted him in the Punjab state would have the
means and the motivation to pursue him hither and yon. Against the weight of the
3
See 8 C.F.R. § 1208.13(b)(1)(ii).
3
government’s evidence, the IJ did not find Singh’s testimony availing. This
conclusion is not unreasonable.4
Because I do not believe that Ren compels remand in this circumstance, and
furthermore because the IJ’s alternative holding concerning relocation provides an
independent basis for his decision, I would deny the petition for review.5
I respectfully dissent.
4
Singh disputed the IJ’s determination concerning the reasonableness of
relocation on appeal before the Board of Immigration Appeals. The BIA’s
decision did not address the issue but, by explicitly invoking Matter of Burbano,
20 I. & N. Dec. 872, 874 (BIA 1994), incorporated the conclusions and reasoning
of the IJ as articulated in her decision. In such circumstances, we may examine the
IJ’s determination concerning relocation as if it had been that of the BIA, see
Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010); and we review for
substantial evidence, see INS v. Eliaz-Zacarias, 502 U.S. 478, 481 & n.1 (1992).
This court, therefore, must uphold the agency’s findings unless “we . . . find that
the evidence not only supports [the opposite] conclusion, but compels it.” Id.
5
The same logic that disposes of Singh’s application for asylum similarly
decides his prayers for withholding of removal and protection under the
Convention against Torture (CAT). The procedure for denying withholding of
removal on the grounds that relocation within the native country is reasonable is
substantially the same as for asylum. Compare 8 C.F.R. § 1208.16(b)(1)(i)(B),
with 8 C.F.R. § 1208.13(b)(1)(i)(B). Because Singh cannot overcome the
government’s evidence concerning the reasonableness of relocation in the asylum
context, he similarly cannot prevail in withholding of removal.
On the other hand, Singh’s burden for securing relief under CAT is even
greater. See Hasan v. Ashcroft, 380 F.3d 1114, 1122 (9th Cir. 2004) (describing
that “the legal standard for considering the possibility of relocation is different in
the context of a CAT claim than in an asylum claim” and that, in the former, “the
burden is on the applicant”).
Singh could not prevail on the relocation question for his asylum
application; he likewise cannot in these other claims.
4