Gurpreet Singh v. Eric Holder, Jr. ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 26 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
GURPREET SINGH; RAVINDERJIT Nos. 09-73562
KAUR GOTHRA, 10-72225
Petitioners, Agency Nos. A096-139-540
A096-139-541
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 13, 2012 **
Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
In these consolidated cases, Gurpreet Singh and Ravinderjit Kaur Gothra,
natives and citizens of India, petition for review of the Board of Immigration
Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
decision denying their application for asylum and withholding of removal (No. 09-
73562) and the BIA’s denial of their motion to reopen (No. 10-72225). Our
jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence
factual findings, Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006), and
we review for abuse of discretion the BIA’s denial of a motion to reopen,
Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). In No. 09-73562, we
deny in part and grant in part the petition for review, and we remand. In No. 10-
72225, we dismiss the petition for review as moot.
With regard to petitioners’ direct appeal, the IJ found Singh credible, and the
BIA assumed Singh established past persecution because he was perceived as a
Sikh militant. Substantial evidence supports the BIA’s determination that the harm
Singh suffered was not so severe that it warrants a humanitarian grant of asylum.
See Kumar v. INS, 204 F.3d 931, 932-35 (9th Cir. 2000) (upholding denial of
humanitarian asylum where soldiers stripped and fondled petitioner; punched,
kicked, and beat her unconscious; forced her to renounce her religion; and tied up,
beat, and otherwise harmed her parents).
However, substantial evidence does not support the BIA’s finding of
changed country conditions because the BIA did not conduct the requisite
individualized analysis of Singh’s situation. See Lopez v. Ashcroft, 366 F.3d 799,
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804-05 (9th Cir. 2004) (BIA’s changed country conditions finding was not
sufficiently individualized where BIA relied only on demobilization of civil patrols
and guerrillas and lack of evidence current government would be unable or
unwilling to protect petitioner from future harm). In evaluating this issue, the BIA
focused on conditions in the Punjab and the lack of evidence of ongoing harm
against Sikhs. Singh, however, was accused of involvement with militants and
mistreated by police from the Punjab, Uttar Pradesh, and Bombay. In addition, his
testimony indicates he is the subject of ongoing police interest. As the BIA did not
take these circumstances into account in assessing country conditions, we remand
Singh’s asylum and withholding of removal claims for further proceedings
consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002)
(per curiam); Lopez, 366 F.3d at 806-07.
We do not reach petitioners’ contentions regarding the IJ’s decision because
the BIA did not rely on the IJ’s decision to deny relief. Further, we decline
petitioners’ requests for judicial notice and do not consider the new evidence they
reference in their opening and reply briefs. See Fisher v. INS, 79 F.3d 955, 963
(9th Cir. 1996) (en banc) (stating court’s review is limited to administrative record
and declining to take judicial notice of country report). Finally, in light of our
preceding conclusions, we dismiss petitioners’ challenge to the BIA’s denial of
3 09-73562
their motion to reopen as moot. We note that if the parties wish to submit further
evidence of current country conditions, they can pursue that before the agency on
remand. See Lopez, 366 F.3d at 806-07.
Each party shall bear its own costs for these petitions for review.
No. 09-73562: PETITION FOR REVIEW DENIED in part; GRANTED
in part; REMANDED.
No. 10-72225: PETITION FOR REVIEW DISMISSED.
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