Singh v. Barr ( 2019 )

16-4302
Singh v. Barr
BIA
Segal, IJ
A200 282 159
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 15th day of March, two thousand nineteen.
PRESENT: ROBERT A. KATZMANN,
Chief Judge,
CHRISTOPHER F. DRONEY,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
GUPREET SINGH,
Petitioner,
v. 16-4302
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Dalbir Singh, New York, NY.
FOR RESPONDENT: Chad A. Readler, Principal Deputy Assistant Attorney
General; John S. Hogan, Assistant Director; Lindsay
Corliss, Trial Attorney, Office of Immigration
Litigation, United States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the
petition for review is GRANTED.
Petitioner Gupreet Singh, a native and citizen of India, seeks review of a December 2,
2016, decision of the BIA affirming a January 5, 2016, decision of an Immigration Judge (“IJ”)
denying Singh’s application for asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Gupreet Singh, No. A 200 282 159 (B.I.A. Dec. 2, 2016), aff’g
No. A 200 282 159 (Immig. Ct. N.Y. City Jan. 5, 2016). We assume the parties’ familiarity with
the underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed both the BIA’s and IJ’s decisions
“for the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
Cir. 2006). The standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); Lecaj v.
Holder, 616 F.3d 111, 114 (2d Cir. 2010).
To show eligibility for asylum, an applicant must establish past persecution or a well-
founded fear of future persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion. See 8 U.S.C. § 1101(a)(42). Here, because the IJ
concluded that Singh established past persecution, he was entitled to a presumption of “a well-
founded fear of persecution on the basis of the original claim.” 8 C.F.R. § 1208.13(b)(1). It is the
government’s burden to overcome that presumption, which it can do by establishing by a
preponderance of the evidence that “the applicant could avoid persecution by relocating to
another part of the applicant’s country of nationality . . . if under all the circumstances it would
be reasonable to expect the applicant to do so.” 8 C.F.R. § 1208.13(b)(2)(ii); Kone v. Holder, 596
F.3d 141, 147 (2d Cir. 2010). In determining whether internal relocation would be reasonable, an
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IJ can “consider . . . whether the applicant would face other serious harm in the place of
suggested relocation; any ongoing civil strife within the country; administrative, economic, or
judicial infrastructure; geographical limitations; and social and cultural constraints, such as age,
gender, health, and social and familial ties.” 8 C.F.R. § 1208.13(b)(3).
Here, the government failed to produce any evidence to support a relocation finding. The
IJ’s decision was therefore based almost entirely on evidence outside of the record of which it
took administrative notice. However, the IJ did not cite any sources for these findings. See, e.g.,
CAR at 41 (taking “administrative notice of the fact that the Congress Party no longer controls
certain localities within India,” but citing no source). We cannot review the IJ’s decision if we do
not know the evidence on which it relied. See Xiao Kui Lin v. Mukasey, 553 F.3d 217, 221-22
(2d Cir. 2009) (“The BIA’s failure to cite any support for its determination of Chinese national
policy prevents this finding from serving as a valid basis for its decision.”). Cf. Shao v. Mukasey,
546 F.3d 138, 167 (2d Cir. 2008) (absent notice and opportunity to be heard, denying relief based
solely on judicially noticed facts not in the State Department’s most recent report violates due
process).
Our review is limited to the administrative record, see 8 U.S.C. § 1252(b)(4)(A), and
there is no evidence in the record to confirm the IJ’s findings. Accordingly, the petition for
review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED for
further development of the record on these points.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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