Chaddha v. Gonzales , 209 F. App'x 639 ( 2006 )

MEMORANDUM ^**

Rahul Chaddha, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision, which summarily affirmed the Immigration Judge’s (“IJ”) order denying his application for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). We dismiss in part, deny in part and grant and remand in part the petition for review.

We lack jurisdiction to review the BIA’s determination that Chaddha did not file for asylum within one year of entering the United States, see Hakeem v. INS, 278 F.3d 812, 815-16 (9th Cir.2001); 8 U.S.C. § 1158(a)(3), or whether extraordinary circumstances excused the late filing, see Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir.2002). We dismiss Chaddha’s petition for review on the timeliness of his asylum claim.

We have jurisdiction pursuant to 8 U.S.C. § 1252 over the remaining claims. We review for substantial evidence the IJ’s decision to deny withholding of removal, Hakeem, 273 F.3d at 816, and relief under CAT, Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir.2003).

The IJ concluded that Chaddha failed to demonstrate a nexus between the government’s conduct and a protected ground, because Chaddha did not show that the two incidents with the police were related to Chaddha’s political opinion, religion, or his membership in a social group. The IJ determined that the police were interested in Chaddha only with regard to a criminal investigation into his relationship with Win Chadha, an arms dealer who allegedly stole millions from the government of India. The record supports some aspects of the IJ’s conclusion, but not all of it.

Substantial evidence supports the IJ’s conclusion that, with respect to the first arrest, there was no nexus to a protected ground. See Dinu v. Ashcroft, 372 F.3d 1041, 1044-45 (9th Cir.2004). Substantial evidence also supports the IJ’s conclusion that the second arrest was not related to Chaddha’s religion or membership in a social group. See Ochave v. INS, 254 F.3d 859, 865-66 (9th Cir.2001) (requiring alien to establish nexus between alleged persecution and protected ground).

The IJ, however, failed to consider Chaddha’s claim that the second arrest was based on his imputed political opinion. See Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir.1997) (citing standard for imputed political opinion). During the second arrest, the police began questioning Chaddha about the same issues for which he was first arrested, but then proceeded to link him with Sikh militant groups, asking him about a number of people with whom he had attended college. Administrative Record 82-84. The Sikh militant group about which Chaddha was questioned has been pressing for the creation of a Sikh state separate from India known as “Khalistan.” We grant the petition on this claim and remand to allow the BIA to decide whether Chaddha established eligibility for withholding of removal based on his evidence of persecution on account of an imputed political opinion.

The IJ also concluded that Chaddha was not eligible for CAT relief because Chaddha could relocate to another part of India. Substantial evidence supports the IJ’s finding. See Hasan v. Ashcroft, 380 F.3d 1114, 1123 (9th Cir.2004) (explaining that “in the CAT context, unlike asylum, the petitioners have the burden of presenting evidence to show that internal relocation is not a possibility”). We deny the petition on the CAT claim. Finally, as we remand as to the merits of the petition for withholding of removal based on an imputed political opinion, we need not — and do not — make any determination as to the BIA’s denial of petitioner’s motion to reopen.

PETITION FOR REVIEW DISMISSED in part, DENIED in part, GRANTED in part and REMANDED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.