Rupinder Singh v. Merrick Garland ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUPINDER SINGH, No. 19-73107
Petitioner,
Agency No.
v. A075-302-200
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 6, 2022
Portland, Oregon
Filed August 30, 2022
Before: Paul J. Watford, Ryan D. Nelson, and
Kenneth K. Lee, Circuit Judges.
Opinion by Judge Lee
2 SINGH V. GARLAND
SUMMARY *
Immigration
Granting Rupinder Singh’s petition for review of a
decision of the Board of Immigration Appeals, and
remanding, the panel held that the BIA erred in holding that
an earlier adverse credibility finding barred Singh’s motion
to reopen, and in concluding that Singh failed to show that
the conditions for Sikhs in India had changed qualitatively
since his last hearing.
Singh initially sought asylum claiming that he was
persecuted in India on account of being a Sikh who supports
the creation of Khalistan and the Akali Dal (Mann) Party.
An immigration judge denied Singh’s claims after
concluding that Singh’s testimony was not credible because
of inconsistencies and a lack of detail. The IJ also
highlighted a State Department report showing that the
situation for Sikhs had greatly normalized and, noting that
Singh’s family had not responded to his requests for
documents, the IJ found further that Singh had failed to even
establish his identity.
Singh sought to reopen based on changed country
conditions, and the BIA concluded that Singh had not
establish materially changed conditions. In doing so, the
BIA noted that Singh’s prior adverse credibility finding was
relevant in considering the evidence of changed country
conditions.
*
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. GARLAND 3
The panel held that the BIA erred in concluding that
Singh’s motion was foreclosed by the prior adverse
credibility determination. The panel explained that although
the BIA may rely on a previous adverse credibility
determination to deny a motion to reopen if that earlier
finding still factually undermines the petitioner’s new
argument, here, Singh’s motion included newly submitted
evidence based on information independent of the prior
adverse credibility finding. Among other documents, the
motion to reopen included Singh’s birth certificate, a letter
from a Mann leader attesting to his membership in the party,
and a letter from his mother stating that the police were
looking for Singh. The panel explained that this evidence
was independent of the facts that formed the prior credibility
finding, and in fact filled some gaps on which the adverse
credibility finding was predicated. The panel noted that the
IJ had expressly relied on the lack of such corroborating
evidence to find Singh not credible. Thus, the prior adverse
credibility finding logically could not have implicated the
newly submitted evidence.
The panel concluded that the BIA erred in rejecting
Singh’s new evidence for two other reasons. First, the panel
held that the record did not support the BIA’s determination
that Singh was not similarly situated to the people harmed in
2017 political violence. The panel noted that news reports
showed that in 2017 the Punjabi police determined that the
Sikh insurgency was returning based on a string of killing of
non-Sikhs. In response, the police arrested many Sikhs who
were allegedly planning to carry out terror activities in the
state. The reports also stated the police suspected that these
alleged Sikh terrorists were recruited online and radicalized
outside India. The panel wrote that these reports of
worsening conditions link directly to Singh’s claim because
the affidavit from Singh’s mother stated that the police were
4 SINGH V. GARLAND
looking for Singh in 2018 and suspected him of receiving
military training in Pakistan.
Second, the panel held that Singh provided sufficient
evidence demonstrating that the conditions for Sikhs in India
had changed in the two decades since his asylum hearing.
The panel explained that the BIA abuses its discretion when
it concludes that the conditions portrayed in the evidence
represent a mere continuation of existing conditions by
disregarding the evidence of changed conditions. In this
case, the country conditions evidence revealed a marked
change both for Sikhs generally, and for Singh and his
family specifically, compared to the conditions at the time of
Singh’s original hearing in 1997. The panel remanded for
the agency to address Singh’s new evidence.
Singh’s motion also included a new claim for relief
based on his membership in a family social group.
Observing that this court has held that family is the “the
quintessential particular social group,” the panel concluded
that the agency was correct that Singh did not establish any
nexus between his family membership and the harm he fears,
where Singh failed to present any argument that his family
membership was “one central reason” or “a reason” for his
alleged persecution and the persecution he fears. The panel
explained that at most, the letter from his mother provided
evidence that she was mistreated because of her kinship to
him. But the BIA correctly concluded that Singh’s mother’s
mistreatment does not show that Singh would be persecuted
because of his relationship to her.
SINGH V. GARLAND 5
COUNSEL
Garish Sarin (argued), Law Offices of Garish Sarin, Los
Angeles, California, for Petitioner.
Jeffery R. Leist (argued), Senior Litigation Counsel;
Anthony C. Payne, Assistant Director; Ethan P. Davis,
Acting Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
LEE, Circuit Judge:
We have held that the Board of Immigration Appeals
(BIA) may rely on a prior adverse credibility determination
to deny a motion to reopen if that earlier finding factually
undercuts the petitioner’s new argument. Greenwood v.
Garland, 36 F.4th 1232, 1234 (9th Cir. 2022). But that does
not mean the BIA can deny a motion to reopen just because
that motion touches upon the same claim or subject matter
as the previous adverse credibility finding. Here, Rupinder
Singh submitted new evidence about religious persecution
independent of the prior adverse finding. The BIA thus erred
in holding that the earlier adverse credibility finding barred
Singh’s motion to reopen. The BIA also erroneously
concluded that Singh failed to show that the conditions for
Sikhs in India changed qualitatively since his last hearing.
Clear evidence shows the contrary. We thus grant the
petition and remand.
6 SINGH V. GARLAND
BACKGROUND
Singh, a native and citizen of India, entered the United
States without inspection in December 1996. Two months
later, Singh sought asylum, claiming that he was persecuted
in India on account of being a Sikh who supports the creation
of Khalistan and the Akali Dal (Mann) Party.
At a November 1997 hearing, the Immigration Judge (IJ)
denied Singh’s claims after concluding that Singh’s
testimony was not credible because of inconsistencies and
lack of detail. The IJ also highlighted a State Department
report showing that “much of the random harassment [of
Sikhs] has ended in India and that the situation has
normalized to a great extent.” The IJ further found that Singh
had failed to even establish his identity, noting that his
family had not responded to his requests for documents.
The BIA affirmed the IJ’s decision in a summary order,
and we held that substantial evidence supported the agency’s
adverse credibility determination. See Singh v. Ashcroft,
103 F. App’x 322, 322 (9th Cir. 2004).
Fourteen years later, Singh moved to reopen at the BIA,
arguing that “there have been material changes” as to “how
the majority Hindu government treats the minority Sikh
community in India.” Singh submitted the following new
evidence: his Indian birth certificate, his California marriage
license, his wife’s application for asylum, his children’s birth
certificates and the application for asylum of his eldest
daughter who is not a U.S. citizen, a letter from the Mann
Party leader attesting to Singh’s membership in the party, the
Annual Report on India for 2016 by the Commission on
International Religious Freedom, the May 2018 report from
the Immigration and Refugee Board of Canada, several news
articles reflecting new developments in India, a notarized
SINGH V. GARLAND 7
affidavit from his mother, Harbans Kaur, and a statement
from his Sikh church in California dated November 11,
2017. The motion also included a new claim for relief based
on Singh’s membership in a particular social group of his
family.
The BIA denied the motion to reopen after concluding
that Singh has not shown that country conditions in India or
Punjab changed materially or that he is prima facie eligible
for asylum. The agency first observed that Singh’s claim is
the same one he presented in 1997 and that the agency’s
“prior adverse credibility finding is relevant in considering
the evidence of changed country conditions.” The BIA also
found that Singh has not shown that (1) he is similarly
situated as the individuals harmed in the political violence in
2017, or that (2) the conditions for the Sikh minority had
significantly changed since 1997.
Finally, the BIA held that Singh has not shown that his
family qualifies as a cognizable social group or that there is
nexus between his membership in it and the harm he fears in
India.
STANDARD OF REVIEW
We review the BIA’s denial of a motion to reopen for an
abuse of discretion. Agonafer v. Sessions, 859 F.3d 1198,
1203 (9th Cir. 2017). Under this standard of review, we must
uphold the agency’s decision unless it is “arbitrary,
irrational, or contrary to law.” Id. (quotation omitted). We
review the agency’s factual findings for substantial
evidence. Salim v. Lynch, 831 F.3d 1133, 1137 (9th Cir.
2016). The court must “uphold the agency’s determination
unless compelled to the contrary.” Singh v. Whitaker,
914 F.3d 654, 658 (9th Cir. 2019) (internal quotation marks
omitted).
8 SINGH V. GARLAND
ANALYSIS
“An alien ordered to leave the country has a statutory
right to file a motion to reopen his removal proceedings.”
Mata v. Lynch, 576 U.S. 143, 144 (2015); see 8 U.S.C.
§ 1229a(c)(7)(A). Ordinarily, a person may file only one
motion to reopen, and the motion must be filed within
90 days of the removal order. 8 U.S.C. §§ 1229a(c)(7)(A),
(C); 8 C.F.R. § 1003.2(c)(2). But “[t]here is no time limit on
the filing of a motion to reopen” when the motion “is based
on changed country conditions arising in the country of
nationality . . . if such evidence is material and was not
available and would not have been discovered or presented
at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii). 1
To prevail on such a motion, a petitioner must
(1) produce evidence that conditions have changed in the
country of removal, (2) show that the evidence is material,
(3) show that the evidence was unavailable and would not
have been discovered or presented at the previous hearings,
and (4) establish prima facie eligibility for the relief sought.
See Agonafer, 859 F.3d at 1204. The new evidence based on
changed country conditions must be “qualitatively different
from the evidence presented at [the] asylum hearing.” Malty
v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004).
1
It is not clear from the record if the government issued a final
removal order for Singh after our decision denying Singh’s petition in
2004. Nor is it apparent how he managed to remain in the United States
after our decision for 14 years before he filed his motion to reopen.
Oddly, a petitioner’s probability of prevailing on a motion to reopen
based on changed circumstances increases the longer he or she
unlawfully stays here. But the statutory provision for a motion to reopen
does not appear to impose any time limits for the changed circumstances
exception. 8 U.S.C. § 1229a(c)(7)(C)(ii).
SINGH V. GARLAND 9
I. The BIA erred in concluding that the prior adverse
credibility finding rendered the changed country
conditions immaterial.
In affirming the denial of Singh’s claim, the BIA noted
that the “prior adverse credibility finding is relevant in
considering the evidence of changed country conditions.”
The BIA cited Toufighi v. Mukasey for the proposition that
an “underlying adverse credibility determination rendered
evidence of changed circumstances immaterial.” 538 F.3d
988, 996–97 (9th Cir. 2008).
We recently held in Greenwood that the BIA “may rely
on a previous adverse credibility determination to deny a
motion to reopen if that earlier finding still factually
undermines the petitioner’s new argument.” 36 F.4th
at 1234. We endorsed the reasoning and conclusion of the
BIA’s decision in Matter of F-S-N- in which the BIA
explained that “to prevail on a motion to reopen alleging
changed country conditions where the persecution claim was
previously denied based on an adverse credibility finding in
the underlying proceedings, the respondent must either
overcome the prior determination or show that the new claim
is independent of the evidence that was found to be not
credible.” 28 I. & N. Dec. 1, 3 (B.I.A. 2020). Thus, “where
such evidence is contingent, in part or in whole, on factors
that were determined to lack credibility and have not been
rehabilitated, the respondent’s ability to successfully
establish prima facie eligibility may be undermined.” Id.
at 4. But “if newly submitted evidence is based on
information independent of the prior adverse credibility
finding, it must be addressed.” Id.
The BIA erred because the motion to reopen included
“newly submitted evidence . . . based on information
independent of the prior adverse credibility finding.” Id.
10 SINGH V. GARLAND
Among other documents, the motion to reopen included
Singh’s birth certificate, a letter from the Mann leader
attesting to his membership in the party, and a letter from his
mother stating that the police were looking for Singh. This
evidence was independent of the facts that formed the prior
credibility finding. Indeed, the IJ had expressly relied on the
lack of such corroborating evidence to find Singh not
credible. The prior adverse credibility finding thus logically
could not have implicated the newly submitted evidence.
This new evidence “must be addressed” by the agency. F-S-
N, 28 I. & N. Dec. at 4. 2
This case differs from Greenwood in crucial respects. In
Greenwood, the petitioner claimed that he feared returning
to Jamaica because of his membership in the People’s
National Party. The IJ found that the petitioner “lacked the
credibility to establish his true identity” based on his “use of
multiple fake names, his fraudulent passport, and an inability
to establish his true identity.” Greenwood, 36 F.4th at 1234.
In Greenwood’s motion to reopen based on changed country
conditions, the only new piece of information was that his
nephew was allegedly murdered in 2017. Id. at 1234–35. We
concluded that “the basis of Greenwood’s motion to reopen
. . . thus remain[ed] intertwined with his credibility
problem.” Id. at 1236. And because Greenwood lacked “the
credibility to assert that he is a member of the People’s
National Party, it [did] not matter whether political violence
against that party has worsened in Jamaica.” Id. at 1235.
2
The government’s attempt to undermine the significance of this
evidence misses the mark. Although the BIA may well have determined
that the new evidence fails to establish prima facie eligibility for relief,
the BIA did not say so, and we can only affirm a “BIA decision . . . only
on the basis articulated in the decision.” Chae Kim Ro v. Immigration &
Naturalization Serv., 670 F.2d 114, 116 (9th Cir. 1982).
SINGH V. GARLAND 11
In this case, by contrast, the new evidence submitted by
Singh is independent of the evidence that the IJ relied on in
making the adverse credibility finding. And in fact, the new
evidence fills some gaps on which the adverse credibility
finding was predicated. We thus hold that the BIA erred in
finding Singh’s motion to reopen foreclosed by the prior
adverse credibility determination.
II. The BIA erred in its evaluation of the changed
country conditions evidence.
Besides relying on the prior adverse credibility finding,
the BIA rejected Singh’s evidence of changed country
conditions on two grounds. First, the BIA concluded that
Singh “has not shown that he is similarly situated as the
individuals harmed in the political violence in 2017.”
Second, the BIA held that Singh “has not shown that the
conditions or circumstances represent qualitatively changed
country conditions, rather than the continuation of
essentially the same or similar conditions at the time of his
previous hearing in 1997.” The BIA erred on both counts.
First, the record does not support the BIA’s finding that
Singh was not similarly situated to the people harmed in the
2017 political violence. The news reports show that in 2017
the Punjabi police determined that the Sikh insurgency was
returning based on a string of killing of non-Sikhs. In
response, the police arrested many Sikhs who were allegedly
planning to carry out terror activities in the state. The reports
also stated the police suspected that these alleged Sikh
terrorists were recruited online and radicalized outside India.
These reports of worsening conditions link directly to
Singh’s claim because the affidavit from Singh’s mother
states that the police were looking for Singh in 2018 and
suspected him of receiving military training in Pakistan.
12 SINGH V. GARLAND
Second, Singh provided sufficient evidence that the
conditions for Sikhs in India have changed in the two
decades since his asylum hearing. Admittedly, the BIA can
draw its own conclusions from contradictory and ambiguous
country conditions reports. See Singh v. Holder, 753 F.3d
826, 833 (9th Cir. 2014). But “[t]his does not mean . . . that
an applicant lacks judicial review of the BIA’s
determination.” Gonzalez-Hernandez v. Ashcroft, 336 F.3d
995, 1000 (9th Cir. 2003). For example, we have held that
the BIA abuses its discretion when it concludes that the
conditions portrayed in the evidence represent a mere
continuation of existing conditions by disregarding the
evidence of changed conditions. See Salim, 831 F.3d
at 1138; Malty, 381 F.3d at 946.
In this case, the country conditions evidence reveals a
marked change from the conditions at the time of Singh’s
original hearing in 1997. The 2016 Annual Report on India
by the Commission on International Religious Freedom
states that “[i]n 2015, religious tolerance deteriorated and
religious freedom violations increased in India.” For
example, “in October 2015, Sikhs protested in Chandigarh,
Punjab state after pages from the Sikh Holy Scripture (Guru
Granth Sahib) were found desecrated. Police officers opened
fire at the unarmed protestors, killing two and injuring
70 others, and several Sikh protesters were arrested under
the sedition law.” Singh also submitted news articles
detailing an increased focus on religious Sikhs based on the
purported return of the Sikh militancy. Finally, the affidavit
from Singh’s mother states that the police were looking for
Singh based on suspicions of his involvement in the
militancy.
This new evidence stands in sharp contrast to the 1996
country conditions report that Singh submitted with his
SINGH V. GARLAND 13
initial applications for relief. That report showed that the
situation for Sikhs in India had improved in the mid-1990s
after a long period a tumult.
The clear evidence of changed conditions resembles our
decisions in Salim and Malty. In Salim, we found that
petitioner met his burden of proof when he submitted both
“documentary evidence of increased persecution of
Christians generally” and a “letter from his sister . . .
describ[ing] the rising fear experienced by his immediate
family in Indonesia, and warn[ing] [the petitioner] that he
and his wife and children ‘should not return home.’”
831 F.3d at 1138. And in Malty, we remanded the BIA’s
denial of an untimely motion to reopen when the petitioner,
a Coptic Christian, could show a qualitative change in the
level of persecution in Egypt “both with respect to Coptic
Christians generally and with respect to [his] family
specifically.” 381 F.3d at 946. Here, too, the new evidence
from 2015 to 2018 shows a marked deterioration in
conditions both for Sikhs generally and for Singh and his
family compared to 1997.
III. The BIA properly rejected Singh’s new claim of
persecution on account of membership in a
particular social group of his family.
The BIA rejected Singh’s new claim based on his
membership in a particular social group of his family
because (1) he has not shown that the group is a cognizable
particular social group, and (2) he has not shown that his
membership in his family would be one central reason or a
reason for the harm he fears in India. While this court has
held that family is the “the quintessential particular social
group,” Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015),
the agency was correct that Singh did not establish any nexus
between his family membership and the harm he fears.
14 SINGH V. GARLAND
To show eligibility for relief based on membership in a
particular social group, an asylum applicant must show that
the membership in the group was “one central reason” for
his or her persecution, while an applicant for withholding of
removal must show that the membership was “a reason” for
the persecution. Garcia v. Wilkinson, 988 F.3d 1136, 1143,
1146 (9th Cir. 2021). “The phrase ‘a reason’ includes weaker
motives than ‘one central reason.’” Barajas-Romero v.
Lynch, 846 F.3d 351, 354 (9th Cir. 2017).
Singh has not presented any argument that his family
membership is “one central reason” or “a reason” for his
alleged persecution and the persecution he fears. At most,
the letter from his mother provides evidence that she was
mistreated because of her kinship to him. But the BIA
correctly concluded that Singh’s mother’s mistreatment does
not show that Singh would be persecuted because of his
relationship to her.
The BIA thus correctly dismissed this claim. See Ayala
v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (even if
membership in a particular social group is established, an
applicant must still show that “persecution was or will be on
account of his membership in such group” (emphasis in
original)).
PETITION GRANTED; REMANDED.