Shinda Singh v. Matthew Whitaker

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 11 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHINDA SINGH, No. 16-71345
16-73291
Petitioner,
Agency No. A099-062-012
v.
MATTHEW G. WHITAKER, Acting MEMORANDUM*
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 20, 2018**
San Francisco, California
Before: M. SMITH, NGUYEN, and BENNETT, Circuit Judges.
Petitioner Shinda Singh (“Singh”) seeks review of decisions of the Board of
Immigration Appeals (“BIA”) upholding the denial of his claims for asylum,
withholding of removal, and protection under the Convention Against Torture
(“CAT”), and denying his motion to reopen removal proceedings. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 8 U.S.C. § 1252(a)(1) & (b)(6). We deny Singh’s petition for
review of the judgment of the BIA denying his claims for humanitarian asylum,
protection under CAT, and to reopen his removal proceedings. However, we grant
his petition for review and remand his withholding of removal and asylum claims
to the BIA for an individualized analysis of Singh’s ability to relocate in light of
Singh v. Whitaker, Nos. 16-70823/16-72285, 2019 WL 310400 (9th Cir. Jan. 24,
2019).
I. Asylum and Withholding of Removal
Singh asserted a claim for asylum and withholding of removal on the basis
of an imputed political opinion. Singh maintains that he will face persecution
anywhere in India because authorities believe (incorrectly) that he is a member of a
Khalistan separatist group advocating for an independent Sikh state. The BIA
assumed that Singh established past persecution but dismissed his asylum appeal
and his petition for withholding of removal on the ground that the immigration
judge (“IJ”) did not clearly err in finding that he could reasonably relocate within
India.
On January 24, 2019, we decided a substantially similar case. Singh, 2019
WL 310400. In Singh v. Whitaker, the petitioner, Narinder Pal Singh, was Sikh and
a member of the Mann Party, which “advocates for Sikh rights and an independent
Khalistan state.” Id. at *2. We found that the BIA did not conduct a sufficiently
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individualized analysis of Singh’s ability to relocate within India for two reasons.
First, while the BIA examined whether Punjabi police from Narinder Pal
Singh’s original town were likely to follow him outside of Punjab, the BIA did not
examine whether he would face persecution outside of Punjab based on his
political opinion. Id. at *5. We noted that Punjabi police may “wrongly place
individuals involved in ordinary political activity on chronic offender lists.” Id. We
also noted the existence of a tenant registration system in India. Id. The BIA “erred
by failing to address the potential harm Congress Party members, or other local
authorities, might inflict upon Singh in a new state.” Id.Second, we found that the BIA did not specifically address Narinder Pal
Singh’s intent to continue political advocacy for the Mann Party when it found he
could safely relocate in India outside Punjab. Id. “Thus, the BIA’s analysis
regarding whether Singh could reasonably relocate was inadequate.” Id. (citing
Knezevic v. Ashcroft, 367 F.3d 1206, 1214–15 (9th Cir. 2004)). We remanded the
asylum and withholding of removal claims for a reasoned analysis with respect to
the petitioner’s individualized situation. Id.Here, Singh’s imputed political opinion is as a separatist. Here, also, the BIA
upheld the IJ’s findings that “Respondent is unlikely to be pursued by police
outside of Punjab.” While the BIA considered religious freedoms for Sikhs
throughout India, it did not specifically address the possibility of Singh’s future
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persecution outside Punjab because of his imputed political opinion as a separatist.
See Popova v. INS, 273 F.3d 1251, 1259-60 (9th Cir. 2001) (holding “general”
information insufficient to rebut presumption of future persecution on a specific,
individualized ground).
For these reasons, we grant Singh’s petition to review his claims for asylum
and withholding of removal and remand this case to the BIA for consideration in
light of Singh v. Whitaker, 2019 WL 310400.1
II. Humanitarian Asylum
We reject Singh’s claim of humanitarian asylum under 8 C.F.R.
§ 1208.13(b)(1)(iii). Singh’s allegation of threats and incidents of physical abuse,
while sufficient to establish past persecution, does not fall within the “rare
situations of ‘atrocious’ persecution’” necessary for a petitioner to be eligible for
humanitarian asylum. Vongsakdy v. INS, 171 F.3d 1203, 1205 (9th Cir. 1999).
III. Convention Against Torture
Finally, we reject Singh’s claim for protection under CAT. Substantial
evidence supports the agency’s determination that Singh did not establish that he
would more likely than not be tortured if removed to India.
1
The IJ found that “the respondent did not testify in a credible manner.” The BIA
stated that the IJ’s findings of fact were not “clearly erroneous.” However, it
presumed Singh’s credibility. The BIA is not required to again presume Singh’s
credibility on remand and is permitted to consider any facts that it finds are not
clearly erroneous. 8 C.F.R. § 1003.1(d)(3)(i).
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IV. Motion to Reopen Proceedings
The BIA did not err by denying Singh’s motion to reopen. Singh’s motion
was based on his marriage to a United States citizen while his removal proceedings
were pending and his subsequent claim for adjustment of status. Singh failed to
present “clear and convincing evidence indicating a strong likelihood” that the
marriage was bona fide. Malhi v. INS, 336 F.3d 989, 993–94 (9th Cir. 2003)
(quoting In re Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002)). Contrary
to Singh’s argument, the BIA’s application of the fraudulent marriage presumption
recognized in Velarde and 8 C.F.R. § 204.2(a)(1)(iii) did not violate his right to
due process.
Each party shall bear its own costs on appeal.
PETITION GRANTED AND REMANDED IN PART; DENIED IN
PART.
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