Narinder Singh v. Matthew Whitaker , 914 F.3d 654 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NARINDER P. SINGH, AKA Narinder Nos. 16-70823
Pal Singh 16-72285
Petitioner,
Agency No.
v. A205-421-984
MATTHEW G. WHITAKER, Acting
Attorney General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 13, 2018
San Francisco, California
Filed January 24, 2019
Before: RAYMOND C. FISHER and MILAN D. SMITH,
JR., Circuit Judges, and ELAINE E. BUCKLO, * District
Judge.
Opinion by Judge Milan D. Smith, Jr.
*
The Honorable Elaine E. Bucklo, United States District Judge for
the Northern District of Illinois, sitting by designation.
2 SINGH V. WHITAKER
SUMMARY **
Immigration
The panel granted in part and denied in part a petition for
review of the Board of Immigration Appeals’ denial of
asylum, humanitarian asylum, withholding of removal, and
protection under the Convention Against Torture.
The panel held that the Board erred in failing to conduct
a reasoned analysis with respect to petitioner’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).
In so concluding, the panel held that based upon its plain
language, § 1208.13(b)(3) does not require the government
to propose a city, state, or other type of locality as the area
of relocation, rather the Department of Homeland Security
may properly propose a specific or a more general area as
the place of safe relocation. The Board must then conduct
its safe relocation analysis with respect to that proposed area,
however specifically or generally defined.
The panel also held that in considering the
reasonableness of relocation, the Board erred in failing to
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SINGH V. WHITAKER 3
analyze whether petitioner would be substantially safer in a
new location if he were to continue expressing his political
opinion, and erred by unlawfully assuming that petitioner
could silence his political activity to avoid harm.
The panel therefore granted the petition as to petitioner’s
asylum and withholding of removal claims, and remanded
for the Board to conduct a sufficiently individualized
analysis of whether petitioner could safely and reasonably
relocate outside Punjab, and for reconsideration of whether
he qualified for withholding from removal.
The panel denied the petition as to petitioner’s
humanitarian asylum and CAT claims, holding that the
threats and physical harm petitioner suffered did not rise to
the requisite level to warrant humanitarian asylum, and that
petitioner failed to establish that it was more likely than not
he would be tortured if he returned to India.
COUNSEL
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.
4 SINGH V. WHITAKER
OPINION
M. SMITH, Circuit 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.
SINGH V. WHITAKER 5
BACKGROUND
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.
6 SINGH V. WHITAKER
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
SINGH V. WHITAKER 7
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.
JURISDICTION AND STANDARD OF REVIEW
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
8 SINGH V. WHITAKER
determination unless “compelled to conclude to the
contrary.” Id. at 1029.
ANALYSIS
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.
I. Asylum
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
SINGH V. WHITAKER 9
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.
A. Safe Relocation
Singh first contends that the BIA erred in failing to
identify a specific area within India to which Singh could
safely relocate, as required by Matter of M-Z-M-R-. There,
the BIA stated that where an applicant meets the refugee
definition based on past persecution, “DHS must
demonstrate that there is a specific area of the country where
the risk of persecution to the respondent falls below the well-
founded fear level.” 26 I. & N. Dec. at 33−34 (emphasis
added). The BIA ultimately remanded the case to the IJ for
further fact-finding on whether the risk of persecution to the
applicant in the city of Hatton, “or another proposed area,”
met the requisite standard. Id. at 34. Here, similarly, Singh
argues that the BIA was too vague when it defined his safe
relocation area as “outside Punjab.”
10 SINGH V. WHITAKER
We acknowledge the ambiguity within Matter of M-Z-
M-R-, and the lack of controlling precedent on the level of
specificity required of the government in identifying a
proposed relocation area. In Matter of M-Z-M-R-, the BIA
speaks of a “specific area” for relocation, yet cites a case in
support of this proposition that upheld the BIA’s decision in
which the safe area was defined as “outside” the applicant’s
“very small home village.” Id. at 33–34 (quoting Tendean
v. Gonzales, 503 F.3d 8, 11 (1st Cir. 2007)). Previously, we
have observed in a non-precedential decision that “it is
sufficient to define an area of relocation generally.” Singh
v. Sessions, 743 F. App’x 729, 731 (9th Cir. 2018) (denying
review where the BIA found the applicant could relocate
outside Punjab, to another part of India). In numerous
immigration cases however, DHS proposed specific cities or
regions within the applicant’s country of origin. See, e.g.,
Kaiser v. Ashcroft, 390 F.3d 653, 659–60 (9th Cir. 2004)
(analyzing whether petitioners could relocate safely to two
cities, a geographical region, or elsewhere in Pakistan).
The immigration regulations require that the government
prove relocation is possible only to “another part” of the
applicant’s home country or country of last habitual
residence. 8 C.F.R. § 1208.13(b)(1)(i)(B), (b)(2)(ii). Based
upon its plain language, the regulation does not require the
government to propose a city, state, or other type of locality
as the area of relocation. Accordingly, we hold that DHS
may properly propose a specific or a more general area as
the place of safe relocation. The BIA must then conduct its
safe relocation analysis with respect to that proposed area,
however specifically or generally defined. This holding
affords DHS flexibility in determining a safe relocation area,
but maintains the appropriate burden on the government to
demonstrate that the proposed area is safe for the applicant.
Commensurate with DHS’s burden, a more generally
SINGH V. WHITAKER 11
defined area will likely require a more comprehensive
showing of proof that the entirety of the area is safe for
relocation, as compared to, for example, a specific city.
Consequently, we reject Singh’s argument that a greater
level of specificity than “outside Punjab” was required as his
proposed area of relocation. Although general, “outside
Punjab” can comply with the requirement that DHS propose
“another part” of India for Singh’s relocation, so long as
DHS meets its other obligations in the relocation analysis,
such as considering the factors set forth in 8 C.F.R.
§ 1208.13(b)(3).
B. Reasonable Relocation
Singh also argues that the BIA erred in failing to analyze
whether he would be substantially safer in a new location if
he were to continue expressing his support for the Khalistan
secession movement, and erred by unlawfully assuming that
he could silence his political activity to avoid harm. 1 We
agree, and grant the petition for review on this issue.
1
The government argues that Singh has not exhausted the argument
concerning his silenced political opinion, and therefore it is not properly
before the court. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th
Cir. 2003) (“Before a petitioner can raise an argument on appeal, the
petitioner must first raise the issue before the BIA or IJ.”). However, the
IJ addressed this issue, and Singh raised it in his motion for
reconsideration before the BIA. Although the BIA did not explicitly
consider this argument in its denial of reconsideration, we find it is
nonetheless exhausted. See Garcia v. Lynch, 786 F.3d 789, 792–94 (9th
Cir. 2015) (holding that an issue was exhausted where the petitioner
raised it before the IJ, in his pro se notice of appeal to the BIA, and in
specific terms in his motion to reconsider, and the BIA addressed it on
the merits in denying the motion to reconsider).
12 SINGH V. WHITAKER
The BIA considered whether a Mann Party member
would face harm from the Punjabi police outside of Punjab.
The BIA also noted the existence of tenant registration
systems in certain parts of India, and that there is little
information-sharing across Indian states outside of criminal
defendant information. The Law Library of Congress 2012
report (Law Library Report)—upon which the BIA relied—
stated that the police may pursue “high-profile militants”
outside of Punjab, yet acknowledged that the Punjabi police
may wrongly place individuals involved in ordinary political
activities on chronic offender lists. As the BIA decision
notes, the Law Library Report also asserted that it is unlikely
that an individual Mann Party member who “simply holds
pro-Khalistani views” would be targeted.
Although the BIA discussed the Law Library Report and
its conclusion that the police will likely pursue only “high-
profile militants” outside of Punjab, it erred by failing to
address the potential harm Congress Party members, or other
local authorities, might inflict upon Singh in a new state.
Instead, the BIA’s analysis focused on whether the Punjabi
police would follow Singh outside of Punjab, based on his
past political activity, ultimately concluding that he was not
sufficiently high-profile for them to do so. This analysis
does not account for the persecution he may face outside
Punjab from local authorities, or other actors, based on his
future political activities. “[W]here the applicant has
established a well-founded fear of future persecution at the
hands of the government, a rebuttable presumption arises
that the threat exists nationwide.” Melkonian v. Ashcroft,
320 F.3d 1061, 1070 (9th Cir. 2003). The BIA failed to
apply that nationwide presumption to Singh’s asylum claim,
even though it correctly afforded him the presumption of a
well-founded fear of persecution. Similarly, the BIA also
failed to specifically address Singh’s stated intent to
SINGH V. WHITAKER 13
continue proselytizing for his party wherever he went. Thus,
the BIA’s analysis regarding whether Singh could
reasonably relocate was inadequate. See Knezevic v.
Ashcroft, 367 F.3d 1206, 1214–15 (9th Cir. 2004)
(remanding to the BIA the issue of reasonableness of internal
relocation due to its failure to account for several factors
outlined in 8 C.F.R. § 1208.13(b)(3)).
We hold that the BIA must conduct a reasoned analysis
with respect to a petitioner’s individualized situation to
determine whether, in light of the persons or entities that
caused the past persecution, and the nature and extent of the
persecution, there are one or more general or specific areas
within the petitioner’s country of origin where he has no
well-founded fear of persecution and where it is reasonable
to relocate, considering the factors set forth in 8 C.F.R.
§ 1208.13(b)(3). Here, in determining Singh could safely
and reasonably relocate “outside Punjab,” the BIA failed to
conduct such an individualized analysis, and we remand this
claim to the BIA to determine anew whether relocation is
appropriate for Singh. 2
2
To the extent that Singh also seeks withholding of removal, we
remand this issue to the BIA. To warrant withholding of removal, an
applicant must show that “it is more probable than not that they will face
persecution on account of a protected ground upon their deportation.”
Kaiser, 390 F.3d at 660. The BIA did not separate its analysis regarding
Singh’s asylum claim from whether Singh warranted withholding of
removal. Because the BIA’s denial of Singh’s claim for withholding of
removal was based on its inadequate determination that Singh could
safely and reasonably relocate, we remand to the BIA to reconsider
whether Singh warrants withholding of removal.
14 SINGH V. WHITAKER
II. Humanitarian Asylum
Regardless of whether the government has rebutted the
presumption of an asylum applicant’s well-founded fear of
persecution, the BIA may still grant humanitarian asylum.
Matter of M-Z-M-R-, 26 I. & N. Dec. at 31. An applicant
seeking humanitarian asylum must show either “compelling
reasons for being unwilling or unable to return” to his
country of nationality “arising out of the severity of the
[applicant’s] past persecution,” or “a reasonable possibility
that he or she may suffer other serious harm upon removal
to that country.” 8 C.F.R. § 1208.13(b)(1)(iii). The
applicant bears the burden of proof to show that either form
of humanitarian asylum is warranted. Matter of L-S-, 25 I.
& N. Dec. 705, 710 (B.I.A. 2012). Humanitarian asylum
based on past persecution may be granted where the
petitioner has suffered “atrocious forms of persecution.”
Kebede v. Ashcroft, 366 F.3d 808, 812 (9th Cir. 2004)
(quoting Lopez-Galarza v. INS, 99 F.3d 954, 960 (9th Cir.
1996)).
Singh asserts that the BIA’s decision was too conclusory,
and failed to consider all the relevant factors in determining
where he qualified for humanitarian asylum under the
“compelling reasons” prong. Singh did not previously raise
the brevity of the IJ’s or BIA’s analysis, either in his appeal
brief or in his motion to reconsider. Thus, the argument is
unexhausted, and we lack jurisdiction to consider it. 3 See
Rojas-Garcia, 339 F.3d at 819.
3
This argument also appears meritless. We have stated, “When
nothing in the record or the BIA’s decision indicates a failure to consider
all the evidence, a ‘general statement that the agency considered all the
evidence before it’ may be sufficient.” Cole v. Holder, 659 F.3d 762,
SINGH V. WHITAKER 15
The BIA described the physical harm Singh suffered at
the hands of the police and Congress Party members, and
noted his multiple hospitalizations. The BIA then
determined that Singh’s previous persecution did not rise to
the necessary level of atrociousness to warrant humanitarian
asylum. We find the BIA’s denial of humanitarian asylum
supported by substantial evidence.
Our case law demonstrates that extremely severe
persecution is required to warrant humanitarian relief. See,
e.g., Lal v. INS, 255 F.3d 998, 1009–10 (9th Cir. 2001)
(finding unsupported the BIA’s denial of humanitarian
asylum where applicant was detained, beaten and tortured
with knives and cigarettes, deprived of food and water,
forced to watch sexual assault of wife, and had house and
place of worship burned, among other harms). While
undoubtedly troubling, Singh’s past persecution does not
rise to the level of severity in some other cases in which we
have denied petitions for review where the BIA has declined
to extend humanitarian asylum. See, e.g., Hanna v. Keisler,
506 F.3d 933, 936–37, 939 (9th Cir. 2007) (past persecution
insufficient where applicant was arrested, detained, and
tortured for over a month, jailed and beaten for fifteen days,
and threatened if he did not join a paramilitary organization).
In cases similar to Singh’s, we have consistently denied
review. See Marcu v. INS, 147 F.3d 1078, 1080, 1083 (9th
Cir. 1998) (holding BIA did not abuse its discretion in
denying applicant humanitarian asylum where police had
771 (9th Cir. 2011) (quoting Almaghzar v. Gonzales, 457 F.3d 915, 922
(9th Cir. 2006)). The BIA’s decision records the Singh family’s past
persecution at the outset, and notes that the “several threats and physical
abuse” Singh suffered did not rise to the requisite level of harm. There
is no evidence that the BIA “misstat[ed] the record” or “fail[ed] to
mention highly probative or potentially dispositive evidence.” Id.
16 SINGH V. WHITAKER
detained and beaten applicant on several occasions,
threatened to kill him, and gone to his house looking for him
after he left the country). Accordingly, we deny the petition
for review of this claim.
III. Convention Against Torture
To obtain CAT relief, “a petitioner must show that
torture would be ‘inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other
person acting in an official capacity.’” Afriyie, 613 F.3d at
937 (quoting 8 C.F.R. § 208.18(a)(1)). The petitioner must
show that he “more likely than not” will be tortured if he
returns home. Id. Torture is defined as
any act by which severe pain or suffering,
whether physical or mental, is intentionally
inflicted on a person for such purposes as
obtaining from him or her or a third person
information or a confession, punishing him or
her for an act he or she or a third person has
committed or is suspected of having
committed, or intimidating or coercing him
or her or a third person, or for any reason
based on discrimination of any kind.
8 C.F.R. § 1208.18(a)(1). Relevant considerations for a
CAT claim include evidence of past torture inflicted upon
the applicant, evidence of safe internal relocation, evidence
of mass violations of human rights within the country of
removal, and other pertinent country conditions. Nuru v.
Gonzales, 404 F.3d 1207, 1217 (9th Cir. 2005) (quoting
8 C.F.R. § 1208.16(c)(3)). Evidence that the applicant
“could relocate to a part of the country of removal where he
or she is not likely to be tortured” is also a relevant
SINGH V. WHITAKER 17
consideration. Kamalthas v. INS, 251 F.3d 1279, 1282 (9th
Cir. 2001).
Although the BIA’s denial of Singh’s CAT claim relied
in part on its determination that he could relocate, and we
remand to the BIA for reconsideration of the latter
determination in connection with his asylum and
withholding of removal claims, we see no reason to do the
same for his CAT claim. Singh points to the BIA’s “flawed”
relocation analysis, but the BIA’s insufficient analysis of
that issue does not establish that Singh carried his burden for
his CAT claim. See Ahmed v. Keisler, 504 F.3d 1183, 1199,
1201 (9th Cir. 2007) (reversing IJ’s denial of asylum claim
but finding substantial evidence supported denial of CAT
relief). The ability to relocate is but one factor in the CAT
analysis. To prevail on his CAT claim, Singh would need to
prove that he “more likely than not” would be tortured if he
returned home; the BIA did not need to disprove this
contention.
Singh argues that his political activity would result in his
being tortured, noting that it has led to his torture in the past,
and that there is widespread torture of activists by the Indian
police. 4 We conclude, however, that there is substantial
evidence supporting the denial of CAT protection. While
Singh highlights general evidence that police across India
are engaged in human rights violations, the evidence specific
to Mann Party members is sparse. Notwithstanding Singh’s
4
Singh hinges much of his argument on the fact that it would not
make sense for a pro-secession activist such as himself to relocate
outside of Punjab. However, Singh did not previously raise the issue of
whether it was illogical for him to live elsewhere, and therefore it is not
exhausted. Accordingly, we consider only whether there is substantial
evidence that Singh would more likely than not be tortured, or if instead
we are “compelled to conclude to the contrary.” Ali, 637 F.3d at 1029.
18 SINGH V. WHITAKER
personal experiences, the evidence in the record suggests
Mann Party members are targeted primarily when they are
high-profile militants. Despite Singh’s documentary
evidence regarding human rights concerns in India, we are
not compelled to conclude that Singh more likely than not
would be the subject of torture should he return to India.
That Singh suffered persecution in the past does not
necessarily mean he will be tortured in the future. See
Ahmed, 504 F.3d at 1201 (finding substantial evidence
supported denial of CAT relief where petitioner had been
beaten four times by the police but otherwise did not
demonstrate he would be tortured upon return to
Bangladesh, because it was not clear that past persecution
rose to the level of torture). Therefore, we deny the petition
for review on Singh’s CAT claim.
CONCLUSION
We grant the petition for review of Singh’s asylum and
withholding of removal claims, and remand for the BIA to
conduct a sufficiently individualized analysis of whether
Singh could safely and reasonably relocate outside Punjab,
and for reconsideration of whether he qualified for
withholding from removal. We deny the petition for Singh’s
humanitarian asylum and CAT claims.
Each party shall bear its own costs on appeal.
PETITION GRANTED AND REMANDED IN
PART, DENIED IN PART.