Singh v. Garland ( 2023 )

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
GURPREET SINGH, No. 21-759
Agency No.
Petitioner, A216-265-780
v.
ORDER
MERRICK B. GARLAND, Attorney
General,
Respondent.
Before: FRIEDLAND and R. NELSON, Circuit Judges, and CARDONE,
District Judge.*
The Memorandum Disposition filed on March 28, 2023, from which
Judge Nelson partially dissented, is withdrawn and replaced with a new
Memorandum Disposition filed concurrently with this order. With this order,
Judge Friedland has voted to deny the petition for panel rehearing, and Judge
Cardone so recommends. Judge Nelson has voted to grant the petition for
rehearing. The petition for rehearing is DENIED. No future petitions for
rehearing will be entertained.
*
The Honorable Kathleen Cardone, United States District Judge for
the Western District of Texas, sitting by designation.
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 24 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 and remand 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). It appears that the BJP
governed Punjab as part of a coalition majority at the time Singh testified that
he was attacked by BJP members, 1 and Kaur recognized that the Congress Party
governed Punjab at the time Singh testified that he was attacked by Congress
Party members. 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).
Because Kaur was decided after the IJ proceedings in this case, however, the IJ
did not consider whether Singh’s attackers from the BJP Party or the Congress
Party must be considered to have been part of “the government itself” at the
1
See Election Results: Badals Sweep Congress off Punjab Skies, The
Times of India (Mar. 7, 2012), https://tinyurl.com/wv5x94fa. Although this fact
is 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)). To the
extent that the evidence shows otherwise on remand, the agency may make such
findings of fact as are supported by the record.
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times of the beatings.2
Any error in the agency’s persecution analysis would be harmless had the
agency applied a presumption of a nationwide threat of persecution in its
relocation analysis. 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). The agency did not do so
here.
We therefore remand for the agency to reevaluate Singh’s asylum and
withholding claims by addressing whether his attackers constituted government
persecutors under Kaur, and, if so, whether the government rebutted the
nationwide threat of persecution as required under Whitaker. See Whitaker, 914
F.3d at 661 & n.2 (remanding the petitioner’s asylum and withholding claims
The dissent argues that we should not apply Kaur and should instead
2
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
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.
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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.
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 AND REMANDED IN PART; DENIED IN
PART.
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FILED
Singh v. Garland, No. 21-759 MAY 24 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.
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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.
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