Singh v. INS ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60675
Summary Calender
JAGTAR SINGH,
Petitioner,
VERSUS
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
(A73-728-423)
October 4, 1999
Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.
PER CURIAM:*
Jagtar Singh petitions for review of an order of the Board of
Immigration Appeals (“BIA” or “Board”) dismissing his appeal of the
immigration judge’s (“IJ”) order denying his application for asylum
and withholding of deportation. He argues that he is entitled to
asylum because he was persecuted while living in India and that he
has well-founded fear that he will be persecuted if he returns
there. He avers that the BIA’s decision denying him refugee status
for past persecution is not supported by substantial evidence and
that the BIA did not give meaningful consideration to his evidence
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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that his fear of return is well-founded.
BACKGROUND
Petitioner, a native of Punjab, India, entered the United
States without inspection in 1994 and applied for political asylum.
In March 1995, Petitioner was served with an order to show cause as
to why he should not be deported. Petitioner conceded
deportability and applied for political asylum. An evidentiary
hearing was held before an IJ at which Petitioner was the sole
witness.
Petitioner contends that he is a member of the All India Sikh
Student Federation (“AISSF”), an organization that supports the
creation of an independent Sikh nation. In his testimony,
petitioner described five incidents of arrest and torture based on
his Sikh religion and membership in AISSF. During each incident of
arrest, Petitioner was detained for several days at a time, hung
upside down, beaten with bamboo sticks and provided minimal food
and water. Petitioner was told during each detention that he was
being arrested due to his Sikh faith and affiliation with AISSF.
Petitioner was released from detention during each arrest only
after payment of a bribe. Petitioner’s release after the fifth and
final arrest was made to look like an escape, at which time a
warrant was issued for Petitioner’s arrest for escape from prison.
During his testimony before the IJ, Petitioner was asked about
factual issues with respect to AISSF. Specifically, he was asked
about which faction of the AISSF he belonged to, whether the
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faction he belonged to engaged in terrorism and about certain
Punjab elections boycotted by AISSF. Petitioner could not recall
specific facts in response. In addition, Petitioner no longer
observed the Sikh requirement of wearing a beard and a turban.
However, Petitioner did testify to examples of torture and beatings
in Punjab, the outstanding warrant for his arrest and the danger of
further torture upon his return to India.
The IJ denied asylum, stating that he did not find the
Petitioner an entirely credible witness. Upon review by the Board,
the decision of the IJ was upheld. The Board noted that the IJ had
not rendered a specific adverse credibility finding, but
subsequently recited the inconsistencies and failure of memory of
the Petitioner in his testimony before the IJ. The Board also
dismissed Petitioner’s claim that he faced persecution in India due
to the arrest warrant because the arrest warrant was not due to
Petitioner’s religion or political beliefs, but rather on the fact
that he was an escaped detainee.
STANDARD OF REVIEW
It is well-settled that this court may only review the
findings of the Board and not those of the IJ, except to the extent
the findings of the IJ influenced the findings of the Board or the
Board explicitly adopted the findings of the IJ. See Abdel-Masieh
v. INS, 73 F.3d 579 (5th Cir. 1996). We review legal conclusions
of the Board de novo. Rivas-Martinez v. INS, 997 F.2d 1143 (5th
Cir. 1993). We review findings of fact to determine if they are
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based on substantial evidence in the record. INS v. Elias-
Zacarias, 502 U.S. 478 (1992).
ANALYSIS
An applicant is eligible for asylum in the United States if he
either (1) has been subject to past persecution or (2) has a well-
founded fear of future persecution on account of race, religion,
nationality, membership in a particular group or political opinion.
8 U.S.C. §§ 1158(a), 1101(a)(42)(A). An applicant for asylum
establishes a well-founded fear of persecution if a reasonable
person under the circumstances would fear persecution. See Guevara
Flores v. INS, 786 F.2d 1242, 1249 (5th Cir. 1986). However, a
reasonable person can fear persecution even if he cannot prove that
persecution will necessarily occur in the future. See INS v.
Cardoza-Fonseca, 480 U.S. 421, 430 (1987) (“one can certainly have
a well-founded fear . . . when there is less than a 50% chance of
the occurrence taking place”).
In the present case, the Board ruled that Petitioner had
neither suffered past persecution or had a well-founded fear of
future persecution, and accordingly denied asylum. Petitioner
contends that the Board’s decision is not supported by substantial
evidence and that the Board failed to consider portions of the
evidence before it. In making such a claim, the Petitioner has the
burden to “show that the evidence he presented is so compelling
that no reasonable factfinder could fail to find the requisite fear
of persecution.” Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994)
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(citing Elias-Zacarias, 502 U.S. at 483).
Respondent contends that this court should review the decision
of the Board in the same manner as a judgment as a matter of law
under Fed. R. Civ. P. 50(a), i.e., that the Board should be
affirmed if, in light of the entire record, Petitioner is not
eligible for asylum. Respondent misstates the law. This court may
only review the decision of the Board and may not review the
decision of the IJ unless it is adopted by the Board or it clearly
influenced the Board. Abdel-Masieh, 73 F.3d at 583; Mikhael v.
INS, 115 F.3d 299, 306 (5th Cir. 1997). In such review, it is clear
that we must limit ourselves to the stated findings of the Board
solely to determine if they are supported by substantial evidence.
Elias-Zacarias, 502 U.S. at 481. Accordingly, we reject the
Respondent’s contention that we may review the entire record to
determine if it supports a denial of asylum, and review solely the
findings of the Board to determine if they are supported by
substantial evidence in the record.
In reviewing decisions of the Board, this court does not
substitute its judgment for that of the Board or the IJ and will
not under any circumstances review decisions turning solely on
determinations of credibility. Zhu Yu Chun v. INS, 40 F.3d 76, 78
(5th Cir. 1994). However, where the Board has failed to meet its
responsibility in reviewing the entire record and basing its
findings on substantial evidence contained in the record, then this
court must insist on such compliance. Abdel-Masieh, 73 F.3d at 585
(citing Sanon v. INS, 52 F.3d 648, 652 (7th Cir. 1995)). We do not
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require that the Board address every minute issue of fact, but the
decision of the Board must “reflect a meaningful consideration of
the relevant substantial evidence supporting the alien’s claims.”
Abdel-Masieh, 73 F.3d at 585; Opie v. INS, 66 F.3d 737, 740 (5th
Cir. 1995) (“the BIA’s opinion must reflect that it has heard and
thought and not merely reacted”).
In the present case, the Board’s decision does not provide an
adequate basis for review and does not reflect that the Board gave
meaningful consideration to all relevant evidence presented by the
Petitioner. It is unclear whether or not the Board relied on the
IJ’s adverse credibility finding in concluding that the Petitioner
had not met his burden of proving a well-founded fear of
persecution -- noting that the IJ did not make such a determination
but further dedicating the majority of its decision to the
Petitioner’s credibility. Because it is unclear if the Board is
adopting the IJ’s credibility finding, it is impossible for this
court to properly review the Board’s holding. In addition, the
Board makes no reference to key portions of the Petitioner’s
testimony with respect to his presence on a police “black list”,
the murder of several of his colleagues on the “black list” and a
letter from the Petitioner’s father claiming he was beaten by the
police, raising a question as to whether the findings were based on
substantial evidence in the record above and beyond a finding of
credibility. Accordingly, we hold that the decision of the Board
is not based solely on a determination of credibility and that the
decision of the Board does not reflect meaningful consideration of
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the relevant evidence.
In such a situation, this court must insist on compliance by
the Board, but may not supplement its efforts. Mikhael, 115 F.3d
at 306; Abdel-Masieh, 73 F.3d at 585. A holding of the Board may
only be reversed if “the evidence not only supports [reversal], but
compels it.” Elias-Zacarias, 502 U.S. at 481, fn1. Where, as in
the present case, the Board has failed to address much of the
Petitioner’s key evidence, including his own testimony, and has
failed to sufficiently state its reasoning for its findings, we
must remand to the Board so that it may properly do so. See
Mikhael, 115 F.3d at 306 (holding that where the BIA has erred,
remand is the proper remedy). Although upon review of the record,
it appears that the evidence is strong enough to grant asylum based
on a well-founded fear of future persecution, the record does not
necessarily compel such conclusion sufficiently to justify reversal
at this time. Thus, remand is the proper recourse so that the
Board may meet its obligations to perform a meaningful review of
the relevant evidence.
CONCLUSION
For the reasons assigned, the petition for review is GRANTED
and the order of the Board is VACATED and REMANDED for further
proceedings consistent with this opinion.