Jaswinder Singh v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 11, 2018
• Docket: 15-73696
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 11 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JASWINDER SINGH, No. 15-73696

Petitioner, Agency No. A089-716-977

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Argued and Submitted May 18, 2018 San Francisco, California

Before: N.R. SMITH and FRIEDLAND, Circuit Judges, and LYNN,** Chief District Judge.

Jaswinder Singh petitions for review of a decision by the Board of

Immigration Appeals (“BIA”) denying him asylum, humanitarian asylum,

withholding of removal, and protection under the Convention Against Torture

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barbara M. G. Lynn, Chief United States District Judge for the Northern District of Texas, sitting by designation. (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we GRANT in

part and DENY in part Singh’s petition for review.

1. Singh contends that (A) the BIA improperly shifted to him the burden of

showing that he can (1) relocate safely to another part of India and (2) if he can

relocate safely, it is reasonable to require him to do so, and (B) even assuming the

agency did not improperly shift the burden, substantial evidence does not support

the BIA’s conclusion that he can safely or reasonably relocate. We disagree.

First, with respect to whether Singh can safely relocate, the immigration

judge (“IJ”) repeatedly stated that the Government bore the burden of proof, and

the IJ’s reasoning confirms that it applied the correct standards. Substantial

evidence also supports both the IJ’s and the BIA’s conclusion that Singh can safely

relocate. See, e.g., Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 1000 (9th Cir.

2003) (“[W]here the BIA rationally construes an ambiguous or somewhat

contradictory country report and provides an ‘individualized analysis of how

changed conditions will affect the specific petitioner’s situation,’ substantial

evidence will support the agency determination.” (quoting Borja v. INS, 175 F.3d

732, 738 (9th Cir. 1999) (en banc))). Finally, the agency did not misapply

precedent, because it is sufficient to define an area of relocation generally. See,

e.g., Knezevic v. Ashcroft, 367 F.3d 1206, 1214 (9th Cir. 2004).

Second, with respect to whether Singh can reasonably relocate, the IJ did not

2 improperly shift the burden of proof. Once the IJ determined that it was safe for

Singh to relocate, he balanced the factors identified in 8 C.F.R. § 1208.13(b)(3) “in

light of the applicable burden of proof.” See Matter of M-Z-M-R-, 26 I. & N. Dec.

28, 36 (BIA 2012). Because the factors set forth in 8 C.F.R. §1208.13(b) “may, or

may not, be relevant” to every petitioner’s situation, the IJ did not err in requiring

Singh to introduce evidence that bears on the reasonableness of relocation. See

Afriyie v. Holder, 613 F.3d 924, 936 n.8 (9th Cir. 2010) (“[E]ven an applicant . . .

who establishes or is presumed to have suffered past persecution should introduce

evidence bearing on reasonableness with the expectation that the government will

attempt to rebut the presumption that relocation is unreasonable.”). The

requirement to present evidence bearing on reasonableness does not shift the

burden, because the government must rebut any evidence presented to show

relocation was unreasonable.

In this case, Singh testified that relocation was not safe, because the

government could track him, and relocation was not reasonable, because his family

lived in Punjab and he spoke only Punjabi and some English. He presented no

evidence that other social or cultural constraints (i.e., his Dalit class) made it

unreasonable for him to relocate. Further, the record does not establish that his

Dalit class would pose an impediment to his relocation. Singh only referenced his

Dalit class to explain the difficulties he had with his former girlfriend’s family,

3 who did not want their daughter to marry a person of a lower class. This testimony

does not suggest that his Dalit class would make it unreasonable for him to relocate

to another location.1

Substantial evidence also supports the BIA’s decision that relocation is

reasonable. The BIA considered whether Singh can participate in politics

elsewhere in India when concluding that he can safely relocate, and Singh has

provided no authority for the notion that the agency must also reference that

analysis when deciding whether Singh could reasonably relocate—especially given

that political participation was the cause for his past persecution. Substantial

evidence also supports the BIA’s conclusion that Singh’s education (job skills),

language skills, age, and health are all factors that support a reasonableness

finding.

For these reasons, we DENY Singh’s petition for review of his asylum and

withholding of removal claims.

2. Singh additionally argues that the agency abused its discretion when it

1 Although the government submitted evidence regarding discrimination against the Dalit class, Singh did not suggest he suffered from “impediments to the means of social advancement, such as education, jobs, access to justice, freedom of movement, and access to institutions and services.” To the contrary, Singh never testified that his class precluded him from engaging in any of these activities. Instead, the evidence shows Singh was employed as a potter. He did not have any difficulty obtaining medical care after his incidents. He attended primary and secondary school, college, and computer education. The IJ found this evidence supported a conclusion that relocation was reasonable.

4 denied him humanitarian asylum under both 8 C.F.R. § 1208.13(b)(1)(iii)(A) and 8

C.F.R. § 1208.13(b)(1)(iii)(B). We agree that the agency abused its discretion

when applying Section 1208.13(b)(1)(iii)(A). By relying on the country condition

reports, the agency replicated its relocation analysis instead of focusing on whether

Singh had “demonstrated compelling reasons for being unwilling or unable to

return to the country arising out of the severity of [his] past persecution.” Id. at

§ 1208.13(b)(1)(iii)(A) (emphasis added). But we disagree that the agency abused

its discretion when it denied him humanitarian asylum under section

1208.13(b)(1)(iii)(B), because Singh failed to exhaust the argument that he would

face “other serious harm” based on his association with the Dalit caste that would

potentially warrant relief under that section.

For the foregoing reasons, we GRANT the petition for review of Singh’s

application for humanitarian asylum under section 1208.13(b)(1)(iii)(A), and

REMAND for further proceedings on that claim, but DENY his petition for review

of his application under section 1208.13(b)(1)(iii)(B).

3. Finally, Singh maintains that the agency’s decision denying him

protection under CAT is not supported by substantial evidence. We disagree.

Singh’s arguments that the agency’s relocation analysis was flawed fails for the

reasons previously discussed. And his argument that the agency failed to consider

the relevant information is also not convincing. See Cole v. Holder, 659 F.3d 762,

5 771 (9th Cir. 2011) (“When nothing in the record or the BIA’s decision indicates a

failure to consider all the evidence, a ‘general statement that the agency considered

all the evidence before it’ may be sufficient.” (quoting Almaghzar v. Gonzales, 457

F.3d 915, 922 (9th Cir. 2006))).

We therefore DENY Singh’s petition for review of his CAT application.

GRANTED and REMANDED in part and DENIED in part.

6 FILED Singh v. Sessions, No. 15-73696 JUL 11 2018 FRIEDLAND, J., DISSENTING: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

The majority concludes that the BIA did not improperly shift the burden of

proving that Singh could reasonably relocate onto Singh. I disagree.

Singh presented the Government with evidence that he belonged to the Dalit

caste, and the Government submitted documents describing the plight of that caste,

which suggested that Singh was likely to face economic and social discrimination

that could impact his ability to reasonably relocate. At that point, I believe the

Government had the burden to show that Singh’s caste membership would not

make it unreasonable for him to relocate within India. See 8 C.F.R.

§ 1208.13(b)(3) (noting that “social and cultural constraints, such as age, gender,

health, and social and familial ties” might be relevant to the reasonable relocation

analysis); see also 8 C.F.R. § 1208.16(b)(3). I also believe that the Government’s

singular line of questioning about Singh’s previous employment, and its blanket

assertion in closing that Singh “appears to come from maybe a middle to low

income family,” are insufficient to show by a preponderance of the evidence that

Singh can reasonably relocate despite his caste membership.

Further, although Singh did not mention his caste status when asked by the

IJ whether there were reasons other than his political beliefs that might prevent him

from relocating, the IJ’s question was misplaced, because the Government—and

not Singh—bore the burden of proving an ability to relocate. Instead, the IJ should have asked the Government why Singh could reasonably relocate despite his caste

membership. Indeed, it makes sense that the immigration laws would impose this

burden on the government, because the government has expertise in country

conditions, and it is entirely possible that an oppressed individual from one region

of a large country would not know what life for him would be like in another part

of that country. Accordingly, I do not think that Singh’s response to the IJ’s

question could have waived an argument that he did not bear the burden of making

originally. Cf. Afriyie v. Holder, 613 F.3d 924, 935-36 (9th Cir. 2010) (“[T]he

presence of evidence favorable to [the petitioner] is not what is determinative here;

rather, [what matters for an] asylum claim is [whether there is an] absence of

evidence refuting the regulatory presumption.” (quoting Navas v. INS, 217 F.3d

646, 662-63 (9th Cir. 2000))).

For the foregoing reasons, I respectfully dissent.