Singh v. Garland

97 F.4th 597

Ajay Pal SINGH, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 22-211

United States Court of Appeals, Ninth Circuit

Argued and Submitted April 17, 2023 San Francisco, California

Filed March 22, 2024

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX9-362

Inna Lipkin (argued), Law Offices of Inna Lipkin, Redwood City, California, for Petitioner.

Jesi J. Carlson (argued) and Nancy K. Canter, Senior Litigation Counsel; Sarah S. Wilson; Micah Engler, Trial Attorney; Brian Boynton, Principal Deputy Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondents.

Before: Lawrence VanDyke and Gabriel P. Sanchez, Circuit Judges, and Kathryn

H. Vratil,^* District Judge.

Opinion by Judge Vratil;

Dissent by Judge VanDyke

OPINION

VRATIL, District Judge:

Ajay Pal Singh, a native and citizen of India, petitions for review of an order of the Board of Immigration Appeals ("BIA") dismissing his applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). Singh asserts that he suffered past persecution and has a well-founded fear of future persecution due to his membership in the Shiromani Akali Dal Amritsar ("Mann party"), which advocates for the creation of a sovereign state for Sikh people. Two of India's major political parties, the Bharatiya Janata Party ("BJP") and the Shiromani Akali Dal Badal ("Badal") party, oppose the Mann party.

The BIA affirmed the Immigration Judge's ("IJ") determination that Singh did not qualify for asylum or withholding of removal because the injuries and threats that he suffered at the hands of BJP and Badal party members were not sufficiently severe to constitute past persecution. The IJ and the BIA further found that even if Singh had established past persecution, he was not entitled to relief because he could reasonably relocate within India to avoid persecution in the future. The BIA also affirmed the IJ's finding that Singh was not eligible for CAT relief because he had not established that he would suffer torture by or with the acquiescence of public officials.

For the reasons set forth below, we grant the petition in part, deny the petition in part, and remand to the BIA for further proceedings consistent with this opinion.

I. BACKGROUND

On or about August 24, 2015, Singh entered the United States without inspection or admission. On September 9, 2015, the Department of Homeland Security ("DHS") issued a Notice to Appear which charged Singh with removability. On March 21, 2019, Singh appeared at a hearing before an IJ, conceded removability, and filed applications for asylum, withholding of removal, and protection under CAT.

A. Singh's Testimony

At his removal hearing on February 16, 2018, Singh testified about the circumstances that he faced prior to coming to the United States. Singh stated that because of his affiliation with the Mann party, members of the BJP and the Badal party verbally and physically attacked him on multiple occasions in 2014 and 2015. Singh worked for the Mann party while living in India. He attended rallies, participated in social work activities, hung political party posters, and encouraged others to join the party. In November of 2014, he received two threatening telephone calls from callers who identified themselves as BJP and Badal party members and told him to quit the Mann party or be killed.

On December 30, 2014, BJP and Badal party members attacked Singh and beat him with hockey sticks and baseball bats. His attackers stated that they would kill him if he resumed work for the Mann party. Singh spent one day in the hospital and remained on bed rest for 15 days. He went to a police station to report the attack and told them that he was a Mann party member. The police told him that they would not file a complaint against the BJP and threatened to jail him if he returned to the station to complain again.

On June 10, 2015, BJP and Badal party members again attacked Singh as he returned home after prayer at a Sikh temple. The attackers beat him for about six minutes with wooden sticks and metal knuckle dusters. During the beating, his attackers said "you have not quit [the] Mann Party yet, you will be killed." He spent one day in the hospital, then lived in hiding with his grandparents for several weeks before fleeing India. After Singh left India, his family told him that BJP and Badal party members harassed Singh's family members and inquired about his whereabouts. Members of the BJP and the Badal party had previously harassed Singh's father, a Mann party member, before he died.

Singh testified that he could not safely relocate within India because he works for the Mann party and intends to keep doing so wherever he lives. He fears that BJP and Badal party members will kill him if he returns to India because BJP members live all over India and he will have to provide identification to rent lodgings, which would trigger a police check and reveal his whereabouts. Singh does not have any relatives who live outside of Punjab, and he does not speak Hindi, the predominant language outside of Punjab in India.

B. The IJ's Decision

The IJ found Singh removable as charged and denied his applications for asylum, withholding of removal, and CAT relief. Although the IJ deemed Singh credible, the IJ concluded that the two beatings and threatening phone calls that Singh experienced did not rise to the level of persecution. The IJ noted that the beatings did not result in "any lasting injuries requiring extensive medical treatment," the two phone calls were "vague," and Singh "failed to demonstrate that the callers have the will or ability to carry out such threats."

Because Singh had not demonstrated past persecution, the IJ stated that he was not entitled to a presumption of a well-founded fear of future persecution, citing 8 C.F.R. § 1208.13(b)(3). Accordingly, the IJ did not shift the burden to the DHS to show that Singh could safely and reasonably relocate to another part of the country to avoid persecution and instead placed the burden on Singh to demonstrate that he could not reasonably relocate. The IJ observed that Singh was only a low-level Mann party worker and "there was no persuasive evidence in the record that a member of the Mann party similarly situated" to Singh had been harmed or targeted by BJP or Badal party members or police outside of Punjab. The IJ noted that when Singh went to the police after his first attack, he never filed a police report and the police did not take his picture or fingerprints. The IJ concluded that Singh had "not offered more than speculative assertions that members of an opposing party would seek him out for persecution."

Regarding Singh's claim that persecutors could track him through the landlord-tenant identification system, the IJ found that "the evidence [Singh] has submitted shows that the identification system is not uniformly enforced and does not always involve the police," and that the record provided no evidence that the identification system is used to target Mann party members. Given Singh's young age and good health, the IJ concluded that internal relocation would be reasonable and "the record does not demonstrate that there would be unreasonable social or cultural constraints, or other practical barriers."

The IJ also denied Singh's application for withholding of removal, stating that because Singh was not eligible for asylum, it necessarily followed that he was not eligible for withholding of removal, which requires a heightened showing that he more likely than not would be persecuted if removed.

Finally, the IJ denied Singh's application for CAT protection. The IJ found that Singh's two beatings did not amount to torture and that he did not establish that any public official consented or acquiesced to the attacks or would consent or acquiesce to future torture. The IJ noted evidence that "only those considered by police to be high-profile militants are at risk of persecution" and "the Indian government has made concrete efforts towards holding government officials responsible for wrongdoings."

C. The BIA's Decision

Singh appealed the IJ's decision to the BIA. In dismissing the appeal, the BIA affirmed the findings of the IJ, first agreeing that Singh had not shown harm sufficiently severe to constitute persecution. The BIA cited Gu v. Gonzales, 454 F.3d 1014, 1019 (9th Cir. 2006), for the proposition that persecution is an "extreme concept" that "does not include every sort of treatment our society regards as offensive." It further cited Prasad v. INS, 47 F.3d 336, 339-40 (9th Cir. 1995), for the conclusion that "the cumulative physical, psychological and emotional harm the respondent suffered, while abhorrent, does not rise to the level of persecution."

The BIA also affirmed the IJ's relocation analysis, stating that "even assuming [Singh] established past persecution, which he did not, the Immigration Judge properly determined that the DHS met its burden of rebutting the presumption of future persecution based on [Singh's] ability to relocate within India." The BIA emphasized the IJ's findings that it was unlikely that police or anyone else would harm Singh or track him down due to his low-profile status as a low-level worker of the Mann party. As we discuss below, the BIA misinterpreted the IJ's opinion, which did not analyze relocation under a presumption that Singh had established past persecution and therefore did not shift to the DHS the burden of showing that Singh could safely and reasonably relocate outside of Punjab. The BIA nevertheless affirmed the IJ's holding that Singh could safely and reasonably relocate outside Punjab and that he was therefore ineligible for asylum and withholding of removal.

The BIA also affirmed the IJ's denial of protection under CAT. It determined that Singh had not suffered...