Jagjit Singh v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 25, 2022
• Docket: 17-70396
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION AUG 25 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAGJIT SINGH, No. 17-70396

Petitioner, Agency No. A202-052-997

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted August 10, 2022 Seattle, Washington

Before: BERZON, CHRISTEN, and FORREST, Circuit Judges.

Petitioner Jagjit Singh, a native and citizen of India, seeks review of the

Board of Immigration Appeals’ (BIA) final order dismissing Singh’s claims for

asylum, withholding of removal, and relief pursuant to the Convention Against

Torture (CAT). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant in

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. part and deny in part Singh’s petition for review. Because the parties are familiar

with the facts, we do not recite them here.

We confine our review to the BIA’s decision except where the BIA adopts

the Immigration Judge’s (IJ) decision. Guerra v. Barr, 974 F.3d 909, 911 (9th Cir.

2020). “We review for substantial evidence the BIA’s determination that a

petitioner has failed to establish eligibility for asylum or withholding of removal.”

Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021). We review de novo

questions of law. Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir. 2005).

1. The BIA did not address the IJ’s adverse credibility finding and instead

denied Singh’s asylum claim because it concluded that Singh did not establish past

persecution. As a result, the BIA also denied Singh’s claim for withholding of

removal because “[t]he standard for receiving withholding of removal is higher

than that for receiving asylum.” Singh contends the BIA erred in finding that he

failed to offer “specific information” regarding the impact of the harm he suffered.

We review de novo “[w]hether particular acts constitute persecution for asylum

purposes.” Boer-Sedano v. Gonzales, 418 F.3d 1082, 1088 (9th Cir. 2005)

(emphases omitted). But we review for substantial evidence the BIA’s

determination that a petitioner’s past harm does not rise to the level of past

persecution. See Sharma, 9 F.4th at 1060. The parties disagree which of these

2 standards of review apply here. We need not address that question, however,

because the record establishes that the BIA erred under either standard.

Critically, in addition to testifying that police detained him for one day and

beat him with wooden batons for nearly an hour, Singh testified that police came to

his family’s home in search of him and threatened to kill him when they found

him. He also testified that members of the Badal Party beat him on several

occasions and repeatedly threatened him with death, and that when he sought to

report one of the beatings to the police, the police refused to take his complaint.

Further, since he fled India, police and Badal Party members have returned to his

family’s home several times searching for him.

It is unclear whether the BIA decided that every instance of physical harm

was committed by the government or actors that the government was unable or

unwilling to control. See Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir.

2010) (explaining that one element of past persecution is “the persecution was

committed by the government, or by forces that the government was unable or

unwilling to control”). But as noted, Singh testified that the police beat him for

nearly an hour, jailed him overnight, and threatened to kill him, so at least some of

the instances of physical harm and threats were by government actors directly.

3 Further, “[r]epeated death threats, especially when those threats occurred in

conjunction with other forms of abuse, require a finding of past persecution.”

Smolniakova v. Gonzales, 422 F.3d 1037, 1049 (9th Cir. 2005); accord Aden v.

Wilkinson, 989 F.3d 1073, 1082–83 (9th Cir. 2021) (explaining that where the

petitioner has suffered “physical harm plus something more, such as credible death

threats, we have not hesitated to conclude that the petitioner suffered persecution”)

(emphasis omitted). Also, “‘[a]n applicant may suffer persecution because of the

cumulative effect of several incidents,’ even if no single incident rises to the level

of persecution.” Flores Molina v. Garland, 37 F.4th 626, 636 (9th Cir. 2022)

(alteration in original) (quoting Chand v. INS, 222 F.3d 1066, 1074 (9th Cir.

2000)).

Because the BIA, in its persecution analysis, did not grapple with the death

threats that Singh received, appeared to rely only on the extent to which he testified

regarding the physical harm he suffered, and failed to consider the death threats

and beatings cumulatively, we grant Singh’s petition for review as to his asylum

and withholding of removal claims and remand to the agency for further

consideration.

2. However, Singh forfeited any challenge to the BIA’s ruling on his CAT

claim. Generally, “‘[w]e review only issues [that] are argued specifically and

4 distinctly in a party’s opening brief.’” Brownfield v. City of Yakima, 612 F.3d

1140, 1149 n.4 (9th Cir. 2010) (quoting Greenwood v. FAA, 28 F.3d 971, 977 (9th

Cir. 1994)). Singh’s opening brief included only one conclusory assertion about

his CAT claim. We deny his petition for review as to that claim.

PETITION FOR REVIEW GRANTED IN PART AND DENIED IN PART.