Singh v. Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 28 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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

2 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.

5 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.