Singh v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 28 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GURPREET SINGH, No. 21-759
Petitioner, Agency No. A216-265-780
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 6, 2023
San Francisco, California
Before: FRIEDLAND and R. NELSON, Circuit Judges, and CARDONE,**
District Judge.
Partial Concurrence and Partial Dissent by Judge R. NELSON.
Gurpreet Singh, a native and citizen of India, petitions for review of a
decision of the Board of Immigration Appeals (“BIA”) upholding the
Immigration Judge’s (“IJ”) denial of his claims for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kathleen Cardone, United States District Judge for
the Western District of Texas, sitting by designation.
have jurisdiction under 8 U.S.C. § 1252. We grant the petition as to Singh’s
claims for asylum and withholding of removal, and deny the petition as to his
claim for CAT protection.
We review factual findings for substantial evidence. Nahrvani v.
Gonzales, 399 F.3d 1148, 1151 (9th Cir. 2005). We review questions of law de
novo. Benyamin v. Holder, 579 F.3d 970, 974 (9th Cir. 2009). When the BIA
adopts the IJ’s decision by citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA
1994), and offers additional reasoning, we review both decisions. Husyev v.
Mukasey, 528 F.3d 1172, 1177 (9th Cir. 2008).
1. Although the IJ deemed Singh only partially credible and noted that
his evidence that he was beaten by Bharatiya Janata Party (“BJP”) and Congress
Party members was “not strong,” it credited Singh’s testimony that his attackers
were members of those parties, thus concluding that “Respondent has met his
burden that [the harm he suffered] was on account of his political opinion.” The
IJ’s finding that “the reason . . . that [Singh] was beaten by BJP party members
and Congress Party members . . . is because he was a member of the Mann
Party” necessarily accepted Singh’s testimony that he was indeed beaten by
members of these parties. Any contrary factual finding by the BIA about who
the attackers were was invalid because “the BIA may not make its own findings
or rely ‘on its own interpretation of the facts.’” Zumel v. Lynch, 803 F.3d 463,
475 (9th Cir. 2015) (quoting Vitug v. Holder, 723 F.3d 1056, 1063 (9th Cir.
2013)); see also Yang v. Lynch, 822 F.3d 504, 508 (9th Cir. 2016) (explaining
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that the BIA cannot “make its own credibility determination”).
When a petitioner is persecuted by members “of a major political
party . . . after its rise to power from a minority voting bloc in the legislature to
the head of government, the source of the persecution is the government itself.”
Kaur v. Wilkinson, 986 F.3d 1216, 1228 (9th Cir. 2021). The BJP governed
Punjab as part of a coalition majority at the time Singh testified that he was
attacked by BJP members, and the Congress Party governed Punjab at time
Singh testified that he was attacked by Congress Party members. 1 See id. at
1220 (recognizing that “in March 2017, the Congress Party won elections in
Punjab, and assumed power in the state”); id. at 1229–30 & n.23 (explaining
that a party that forms a coalition majority should be considered “the
government” for the purposes of persecution analysis). Given Singh’s
testimony that he was attacked by BJP and Congress Party members when those
respective parties governed Punjab, the agency erred by failing to consider his
claim that he was persecuted by government actors.2 See id. at 1229.
1
See Election Results: Badals Sweep Congress off Punjab Skies, The
Times of India (Mar. 7, 2012), https://tinyurl.com/wv5x94fa; Smita Gupta,
Congress Takes Heart from Victory in Punjab, The Hindu (Mar. 11, 2017),
https://tinyurl.com/ycysffhp. Although some of these facts are not in the
administrative record, we may take judicial notice of such adjudicative facts
“capable of accurate and ready determination by resort to sources whose
accuracy cannot be reasonably questioned.” Singh v. Ashcroft, 393 F.3d 903,
905–07 (9th Cir. 2004) (quoting Fed. R. Evid. 201(b)(2)).
2
The dissent argues that we should not apply Kaur and should instead
defer to the IJ’s conclusion that there was “no evidence that these [attackers]
acted on behalf of the Congress Party or the BJP Party or the government of
3
In its alternate relocation analysis, the agency also failed to apply the
presumption of a nationwide threat of persecution that is triggered when
persecution is by the government. See Singh v. Whitaker, 914 F.3d 654, 661
(9th Cir. 2019) (holding that the agency erred by failing to afford the petitioner
a nationwide presumption of future persecution, given the petitioner’s testimony
that he suffered persecution at the hands of the government). Despite Singh’s
stated intent to continue advocating for the Mann Party, the agency did not
presume that Singh faced a nationwide threat of future persecution from
members of the Congress Party or the BJP. We therefore remand for the agency
to reconsider whether Singh qualified for asylum and withholding. See id. at
661 & n.2 (remanding the petitioner’s asylum and withholding claims where the
agency’s denial of the withholding claim was based on errors in its asylum
analysis).
2. Substantial evidence supports the agency’s conclusion that Singh did
not establish that he would more likely than not be tortured upon return to India.
India.” Yet the IJ made this statement in the context of discussing whether the
government was unwilling or unable to control Singh’s attackers, and Kaur
indicates that such a showing is unnecessary if a petitioner credibly asserts that
his persecutor “is the government itself.” 986 F.3d at 1229. Although the IJ
elsewhere credited Singh’s testimony that he was attacked by members of the
BJP and the Congress Party, it did not address whether the attackers’ affiliations
with those parties rendered the assaults persecution by the government as
required by Kaur, making its conclusion erroneous for the reasons discussed
herein. Although Kaur had not yet been decided at the time of the IJ’s decision,
it was decided by the time the BIA issued its decision upholding the IJ’s
analysis―which, by that point, was no longer consistent with our circuit’s
precedent.
4
Singh testified that he was able to stay in a neighboring village with his
grandparents for a month without being attacked, and country conditions
evidence indicated that Mann Party members usually do not face physical
violence. The IJ did not credit Singh’s testimony that Congress Party members
continued to inquire about him at his family’s home after he left India. The
agency therefore permissibly concluded that Singh was not eligible for CAT
protection. See id. at 663.
PETITION GRANTED IN PART; DENIED IN PART;
REMANDED.
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FILED
Singh v. Garland, No. 21-759 MAR 28 2023
MOLLY C. DWYER, CLERK
R. NELSON, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS
I agree that substantial evidence supports the agency’s conclusion that Singh
did not establish that he would more likely than not be tortured upon return to India
and is therefore ineligible for CAT relief. But unlike the majority, I would also deny
the petition as to Singh’s asylum and withholding of removal claims because
substantial evidence supports the agency’s conclusion that Singh was not attacked
by members of the BJP or Congress parties.
The BIA adopted and affirmed the IJ’s decision. The BIA specifically
concluded that the IJ “did not clearly err in finding that the respondent’s prior
problems related to unknown private individuals and that the respondent did not
establish that the attackers were members of the Congress and BJP parties.”
The IJ identified several discrepancies in Singh’s testimony related to the
harm he experienced. Singh testified inconsistently about whether the alleged
BJP-affiliated attackers used baseball bats and hockey sticks to attack him; testified
inconsistently about whether the police officer with whom Singh spoke after the
attack made derogatory remarks about the Sikh religion; was unable to properly
identify the BJP party logo; was unable to explain how the alleged Congress Party
attackers in the second attack knew who he was or that he was a member of the Mann
party; and provided no plausible basis for his claim that his attackers would know
1
where he lived and continue to seek him out and harass his family after he left. Based
on these inconsistencies, the IJ found that portions of Singh’s testimony were not
plausible and afforded his testimony only partial weight.
The majority concludes that the IJ “credited Singh’s testimony that his
attackers were members of those parties, thus concluding that ‘Respondent has met
his burden that [the harm he suffered] was on account of his political opinion.’” But
finding that an individual was attacked because of his political opinions is not the
same as finding that his attackers were members of a certain political party.
Indeed, the IJ found that the evidence “was not strong” that Singh was beaten
by BJP party members and Congress Party members because he was a member of
the Mann Party. The IJ said that “although this is a close issue, the Respondent has
met his burden that this was on account of his political opinion.” But the “this” does
not automatically determine who did the attacking. From there, the IJ reasoned “that
there’s no evidence in this case showing that either the Congress Party or the BJP
Party was a willing participant in these alleged attacks. There’s no evidence that
these individuals acted on behalf of the Congress Party or the BJP Party or the
government of India. . . .” I understand the IJ here to state that there is no evidence
that the Congress and BJP parties were involved because there was insufficient
evidence that Singh’s attackers were members of these parties in the first place. The
record, even if unclear, does not compel another conclusion.
2
I thus disagree with the majority that the IJ “necessarily accepted” that Singh
was beaten by party members. I similarly disagree that the BIA relied “on its own
interpretation of the facts” when it determined that the IJ found Singh’s attackers
were unknown private individuals and not members of the Congress or BJP parties.
“We review agency factual findings for substantial evidence” and will reverse only
if the record compels the contrary conclusion. Villegas Sanchez v. Garland, 990 F.3d
1173, 1178 (9th Cir. 2021). “Evidence in the record compelling a contrary
conclusion must be demonstrated ‘with the degree of clarity necessary to permit
reversal.’” Id. at 1179 (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992));
see also Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003) (noting that review
of agency findings under substantial evidence is “extremely deferential.”).
Because I would find that substantial evidence supports the BIA’s conclusion
that Singh did not credibly assert that he was attacked by Congress or BJP party
members, I would not apply Kaur v. Wilkinson, 986 F.3d 1216, 1228 (9th Cir. 2021)
to this case. Substantial evidence supports the agency’s conclusion that Singh was
attacked by private individuals; I would deny the petition in its entirety.
3