Shamsher Singh v. Merrick Garland ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAMSHER SINGH, No. 20-72806
Petitioner, Agency No.
A215-906-373
v.
MERRICK B. GARLAND, Attorney ORDER AND
General, AMENDED
OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 7, 2022
Seattle, Washington
Filed September 14, 2022
Amended January 12, 2023
Before: Ronald Lee Gilman, * Sandra S. Ikuta, and Eric D.
Miller, Circuit Judges.
*
The Honorable Ronald Lee Gilman, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 SINGH V. GARLAND
Order;
Opinion by Judge Gilman;
Concurrence by Judge Miller;
Dissent by Judge Ikuta
SUMMARY **
Immigration
The panel filed an order (1) amending the opinion filed
on September 14, 2022; (2) denying the Respondent’s
petition for panel rehearing, noting that the majority voted to
deny, and Judge Ikuta voted to grant, the petition for panel
rehearing; and (3) indicating that no further petitions for
rehearing or for rehearing en banc would be entertained. In
the amended opinion, the panel granted in part and denied in
part Shamsher Singh’s petition for review of a decision of
the Board of Immigration Appeals, and remanded, holding
that substantial evidence did not support the BIA’s
determination that the harm Singh suffered did not rise to the
level of past persecution, but substantial evidence did
support the BIA’s determination that the harm did not
amount to past torture and that Singh failed to show that he
would more likely than not face a clear probability of future
torture.
As an initial matter, the panel noted that the immigration
judge found Singh to be a credible witness. There were only
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SINGH V. GARLAND 3
two concerns the IJ expressed regarding Singh’s credibility:
(1) a minor omission in his declaration; and (2) his testimony
contained speculation. The panel wrote that neither concern
was sufficient for an adverse credibility determination. The
panel noted that the IJ concluded that Singh’s testimony was
“otherwise consistent with his written statement and
plausible in light of evidence of country conditions.” The
panel further noted that the BIA did not question this
credibility determination, and there was no indication that
the BIA implicitly found the presumption of credibility
rebutted. The panel wrote that the only question for judges
reviewing the BIA’s factual determinations is whether any
reasonable adjudicator could have found as the agency
did. Here, the panel deferred to the agency’s credibility
determination, which was supported by substantial evidence.
Observing that this court has applied both de novo and
substantial evidence review to the question of whether a
petitioner’s past harm rose to the level of persecution, the
panel wrote that it need not address which standard applied
because the harm Singh suffered rose to the level of
persecution under the more deferential substantial evidence
standard. The panel concluded that five factors compelled
the conclusion that Singh experienced serious harm
amounting to persecution: (1) he was forced to flee his home
after being repeatedly assaulted; (2) one of those incidents
involved a death threat; (3) he was between the ages of 16
and 18 when the attacks occurred; (4) his brother also
experienced this violence; and (5) this court has already
recognized that Mann Party members have faced persistent
threats in the region of India where Singh was twice
attacked. The panel noted that the IJ and the BIA found no
reason to doubt the truth, or persuasiveness, of these five
core factors. Explaining that the past-persecution analysis is
4 SINGH V. GARLAND
informed by comparing the facts of a petitioner’s case with
those of similar cases, the panel considered the cases the BIA
cited in its decision and concluded that they were
distinguishable. The panel wrote that the combination of
death threats and physical violence that Singh experienced
was squarely in line with what this court has held is
sufficient to compel a finding of past persecution.
The panel clarified that the BIA had not resolved other
issues relevant to past persecution, including whether the
Indian government was unwilling or unable to control
Singh’s attackers, and whether the persecution was on
account of a statutorily protected ground. And because the
BIA concluded that Singh had not demonstrated past
persecution, the BIA had improperly placed the burden on
Singh to show that he could not reasonably relocate within
India to avoid future persecution. The panel explained that
if Singh is able, on remand, to demonstrate that the serious
harm he suffered was on account of a statutorily protected
ground at the hands of individuals whom the government
was unable or unwilling to control, then that showing would
give rise to a presumption of a well-founded fear of future
persecution and shift the evidentiary burden to the
government to rebut that presumption by showing that there
has been a fundamental change in circumstances concerning
Singh’s well-founded fear of future persecution or that Singh
could avoid future persecution by reasonably relocating to
another part of India. The panel cautioned that an applicant
cannot be said to have the ability to relocate within his home
country if he would have to remain in hiding there.
The panel held that substantial evidence supported the
BIA’s determinations that Singh did not suffer past treatment
amounting to torture, and that he failed to establish that it is
more likely than not that he will be tortured in India by or at
SINGH V. GARLAND 5
the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity.
Concurring, Judge Miller wrote to express his view that
the en banc court should take up the issue, if the Supreme
Court does not do so sooner, of what standard of review
applies to the BIA’s determination that the harm an alien
suffered was not sufficiently severe to constitute
persecution. Judge Miller wrote that whatever the standard
of review, this court’s cases in this area permit no conclusion
other than that the harm that Singh suffered constituted
persecution.
Dissenting, Judge Ikuta wrote that a determination by the
BIA that an alien is not entitled to asylum must be upheld
unless a reasonable factfinder would be compelled to
conclude to the contrary. Judge Ikuta wrote that the majority
flipped this standard on its head. Instead of deferring to the
BIA’s determination as one of potentially many reasonable
possibilities, the majority claimed that the BIA’s decision
was contrary to court precedent. Judge Ikuta explained that
this court’s precedent encompasses wide-ranging views of
what constitutes persecution, and that a fair review of its
cases shows that the majority reached its conclusion only by
cherry-picking similar facts in cases where the court has
reversed the BIA, and distinguishing similar facts in cases
where it has upheld the BIA.
6 SINGH V. GARLAND
COUNSEL
Maleha N. Khan-Avila (argued), Riverside, California;
Erika Roman, Law Office of Erika Roman, Woodland Hills,
California; for Petitioner.
Sarah L. Martin (argued), Jaclyn G. Hagner, and Aaron D.
Nelson, Trial Attorneys; Walter M. Evans, Senior Litigation
Counsel; Sabatino F. Leo, Assistant Director; Brian
Boynton, Acting Assistant Attorney General; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
ORDER
The opinion, filed on September 14, 2022, and reported
at 48 F.4th 1059 (9th Cir. 2022), is amended as follows:
At 48 F.4th at 1067, the last sentence and its citation in
the first paragraph of Part II.B.1. are deleted and replaced
with the following paragraph:
The IJ found Singh to be a credible
witness. There were only two concerns that
the IJ expressed regarding Singh’s
credibility: (1) a minor omission in his
declaration, and (2) his testimony contained
speculation. Neither concern was sufficient
for an adverse credibility determination, and
the IJ concluded that Singh’s testimony was
“otherwise consistent with his written
statement and plausible in light of evidence
of country conditions.” The BIA did not
SINGH V. GARLAND 7
question this credibility determination, and
there is no indication that “the BIA implicitly
found the presumption of credibility
rebutted.” Garland v. Dai, 141 S. Ct. 1669,
1679 (2021). “The only question for judges
reviewing the BIA’s factual determinations is
whether any reasonable adjudicator could
have found as the agency did.” Id. at
1678. Here, we defer to the agency’s
credibility determination, which was
supported by substantial evidence.
At 48 F.4th at 1068, at the end of the first paragraph of
Part II.B.1.i., the following sentence is added:
The IJ and the BIA found “no reason to doubt
the truth, or ‘persuasiveness,’” of these five
core factors. See Plancarte Sauceda v.
Garland, 23 F.4th 824, 827 (9th Cir.
2022) (citing Dai, 141 S. Ct. at 1680-81).
At 48 F.4th at 1072, at the end of the last paragraph of
Part II.B.2., the following sentence is added:
We caution that “an applicant cannot be said
to have the ability to ‘relocate’ within [his]
home country if [he] would have to remain in
hiding there.” Akosung v. Barr, 970 F.3d
1095, 1102 (9th Cir. 2020).
8 SINGH V. GARLAND
An Amended Opinion is being filed concurrently with
this Order. With the Opinion as amended, the panel majority
has voted to DENY Respondent’s petition for panel
rehearing, filed November 14, 2022. Judge Ikuta has voted
to grant the petition for rehearing. No subsequent petitions
for panel or en banc rehearing will be entertained.
OPINION
GILMAN, Circuit Judge:
Shamsher 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 familial association with his brother,
who is a member of the Shiromani Akali Dal Party (Mann
Party), and his own affiliation with that Party. The Mann
Party advocates for the creation of a sovereign state for Sikh
people and is opposed by the Congress Party, one of India’s
major political parties.
The immigration judge (IJ) and the BIA concluded that
Singh did not qualify for asylum or withholding of removal
because the injuries and threats that Singh had suffered at the
hands of Congress Party members were not sufficiently
serious. After reaching this conclusion, neither the IJ nor the
BIA proceeded to analyze whether Singh had established the
other elements of an asylum claim based on past persecution.
SINGH V. GARLAND 9
Because the IJ and the BIA determined that Singh did
not establish past persecution, Singh bore the burden of
proving that he had a well-founded fear of future
persecution. The IJ and the BIA concluded that Singh had
not borne his burden of proof. They also concluded that
Singh did not qualify for CAT protection because he had not
established that it is more likely than not that he would be
tortured by or at the acquiescence of public officials if he
returned to India.
For the reasons set forth below, we GRANT Singh’s
petition in part, DENY Singh’s petition in part, and
REMAND to the BIA for further proceedings consistent
with this opinion.
I. BACKGROUND
Singh entered the United States without documentation
in October 2018. He applied for admission to the United
States later that same month, just a few days before he turned
18. The Department of Homeland Security commenced
removal proceedings against him, charging Singh with
inadmissibility because he lacked a valid visa or other entry
document when he applied for admission.
Singh attended removal proceedings before an IJ in
December 2018. Through counsel, Singh conceded the
charges against him, and the court found removability
established. Singh then filed the relevant application for
asylum, withholding of removal, and protection under CAT.
A. Singh’s testimony
In January 2019, Singh testified before the IJ about the
circumstances that he faced prior to coming to the United
States. Singh stated that members of the Congress Party had
verbally and physically attacked him on multiple occasions
10 SINGH V. GARLAND
in 2017 and 2018 because of his affiliation with the Mann
Party.
Singh’s brother, Harpreet, joined the Mann Party in
December 2016. Soon thereafter, Singh started assisting his
brother in providing services to the Mann Party. Harpreet
was attacked by members of the Congress Party in April and
August 2017, suffering serious internal injuries. He
subsequently fled to the United States in November 2017.
That same month, Singh was verbally confronted by four
members of the Congress Party. They demanded to know
where his older brother was. And they threatened the
brothers, warning them to stop providing services to the
Mann Party and join the Congress Party. These individuals
also told Singh to sell drugs on their behalf.
The threats soon escalated. The first physical attack
occurred in February 2018 when Singh was returning from
offering his prayers at a Sikh temple. Four men approached
Singh and told him, again, that he needed to quit the Mann
Party and join the Congress Party. The men then slapped
Singh on his face, hit his stomach, threw him to the ground,
and started kicking his stomach. Singh knew that they were
from the Congress Party because they said that Singh needed
to join “our party, the Congress Party” and because there was
a symbol of a palm on their motorcycles, which symbolizes
the Congress Party.
After the February 2018 attack, Singh’s grandmother
gave him herbal remedies at home. He then reported the
incident to the police near his hometown of Maqsudpur.
Singh’s father accompanied him to make the report. The
police told Singh and his father that something was wrong
with Singh for trying to file a false report against the
SINGH V. GARLAND 11
government that was currently in power and that Singh had
better leave the police station immediately.
A second physical attack occurred in July 2018 when
Singh was returning home from the family’s farm. Singh
was on his bicycle alone when a vehicle approached him and
stopped in front of his bicycle. Five men emerged from the
vehicle and told Singh that he would suffer the consequences
of failing to join their party and of attempting to file a report
with the police. The men beat Singh with hockey sticks all
over his back and arms. They told Singh that they were
going to kill him.
Some nearby farmers heard Singh’s screams and ran
toward the group. This caused the men to run back to their
vehicle and leave. The farmers took Singh to the village
doctor, who provided him with bandages and medication.
Singh did not report this second attack to the police because
they had told him after the first attempted report “that if you
ever show up over here again we will frame you in a false
case and lock you up.”
During the hearing before the IJ, Singh testified that he
could not safely relocate within India because the Congress
Party would find him wherever he moved. He explained
that, even in a city as large as New Delhi, he could be found
because his identification and information would be
processed if he sought housing or an education.
Singh explained that, after staying in Maqsudpur “in a
hiding manner” for a few weeks, he lived with his uncle in
Plath until September 2018. At that point Singh left India.
B. The IJ’s decision
The IJ issued a decision finding Singh removable as
charged and denying his applications for asylum,
12 SINGH V. GARLAND
withholding of removal, and CAT relief. From the outset,
however, the IJ found Singh credible.
Despite that finding, the IJ declined to “find the totality
of the record here support[ed] a finding of past persecution”
because the IJ found no evidence in the record to show that
Singh suffered “any serious injuries” or any that “required
serious medical attention” from his attacks. In addition, the
IJ found that Singh’s continued presence in Maqsudpur for
nearly a year after the initial verbal confrontation
“significant.” The IJ also found that “[t]he fact that the
police declined to investigate [Singh’s] vague accusations
does not amount to persecution. Nor does the officer’s order
to [Singh] to depart the station or face possible arrest amount
to persecution.”
In evaluating Singh’s future-persecution claim, the IJ
found that Singh had not established an individualized risk
of persecution if he returned to India, nor had he established
a practice or pattern of persecution against similarly situated
individuals. The IJ found, in his analysis of individualized
risk, that Singh had failed to demonstrate that the attackers
had “any interest in persecuting him if he were to return” to
India.
The IJ also determined that Singh could internally
relocate within India to avoid persecution. According to the
IJ, Singh did not establish that his persecutors were members
of the Indian government or a government-sponsored entity,
and that Singh’s time with his uncle showed that he could
safely move to a different place in India. Based on this
analysis, the IJ denied Singh’s application for asylum and for
withholding of removal.
The IJ also denied Singh’s application for CAT
protection. He found “no credible evidence in this record to
SINGH V. GARLAND 13
demonstrate that [Singh] suffered mistreatment amounting
to torture while in India by public officials or by individuals
acting at the instigation of or with the consent or
acquiescence of public officials.” The IJ noted that “Indian
law prohibits the use of torture and other forms of cruel,
inhuman, or degrading treatment or punishment.” He also
found that Singh “only present[ed] a speculative fear of
being harmed in [India], as opposed to a particularized fear
of torture,” and that “[a]ny fear of future harm in India
possessed by [Singh] would be at the hands of private
individuals.”
C. The BIA’s decision
Singh appealed the IJ’s decision to the BIA. In
dismissing the appeal, the BIA reviewed Singh’s past-
persecution claim, concluding that “the cumulative effect of
[Singh’s] alleged harm does not rise to the level of
persecution.” Although the BIA found that Singh had been
verbally accosted once and physically beaten twice (once
with hockey sticks) and that one of these physical beatings
was accompanied with a death threat, the BIA concluded that
Singh failed to establish past persecution because “the record
lacks evidence to show that [Singh] suffered any serious
injuries.” It based this conclusion on the evaluation from the
doctor who treated Singh after his second physical assault by
members of the Congress Party that had “indicated that the
extent of his injuries were ‘small bruises, scratches, blue
marks and some part of swollen body.’”
The BIA next rejected Singh’s future-persecution claim.
Because the BIA had determined that Singh had not suffered
any past persecution, it held that Singh bore the burden of
demonstrating that he had a well-founded fear of future
persecution as well. The BIA agreed with the IJ that Singh
14 SINGH V. GARLAND
did not establish “an objectively reasonable fear that he
would be singled out for persecution if he returns to India”
because “he ‘has not shown that the unnamed individuals he
claims were members of the Congress Party, who allegedly
offered him the opportunity to sell drugs, have any interest
in persecuting him if he were to return to his home country.’”
Like the IJ, the BIA found significant the fact that
Singh’s father continues to live in India without any
interactions with the unknown assailants, and that Singh was
able to freely depart the country using his passport. The BIA
also rejected Singh’s reliance on country reports that
mention mass corruption and bribes in India with regard to
police officers. It determined that these reports were
indicative only of a generalized fear rather than an individual
fear of persecution.
In relation to the persecution claims, the BIA affirmed
the IJ’s determination that Singh had failed to demonstrate
that he is unable to relocate within India or that relocation is
unreasonable. The BIA relied on the IJ’s finding that Singh
“did not provide evidence that the source of [the] alleged
persecution is the Indian government or a government-
sponsored entity,” and that “the record lacks evidence to
show that the ‘unknown, masked individuals’ who
confronted [Singh] were public officials or were doing so on
behalf of the Indian government.” In addition, the BIA noted
that the IJ “determined that record evidence establishes
[Singh’s] ability to safely relocate within India.”
The BIA finally reached Singh’s CAT claim. It
determined that “there is no clear error in the Immigration
Judge’s determination that [Singh] has not established that it
is more likely than not that he will be tortured in India by or
at the instigation of or with the consent or acquiescence of a
SINGH V. GARLAND 15
public official or other person acting in an official capacity.”
The BIA offered no additional reasoning for this finding.
II. ANALYSIS
A. Standards of review
“Our review is limited to the BIA’s decision, except to
the extent that the IJ’s opinion is expressly adopted.”
Khudaverdyan v. Holder, 778 F.3d 1101, 1105 (9th Cir.
2015) (citation and internal quotation marks omitted).
Questions of law are reviewed de novo. Rodriguez v.
Holder, 683 F.3d 1164, 1169 (9th Cir. 2012). Factual
findings are reviewed under the substantial-evidence
standard. Navas v. INS, 217 F.3d 646, 657 (9th Cir. 2000)
(citing INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).
Under this standard, “[a] factual finding is ‘not supported by
substantial evidence when any reasonable adjudicator would
be compelled to conclude to the contrary based on the
evidence in the record.’” Aden v. Wilkinson, 989 F.3d 1073,
1079 (9th Cir. 2021) (quoting Bringas-Rodriguez v.
Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc)).
The following analysis focuses primarily on whether
Singh’s experiences in India constituted past persecution.
We have held that “[w]hether particular acts constitute
persecution for asylum purposes is a legal question reviewed
de novo.” Kaur v. Wilkinson, 986 F.3d 1216, 1221 (9th Cir.
2021) (alterations omitted) (quoting Boer-Sedano v.
Gonzales, 418 F.3d 1082, 1088 (9th Cir. 2005)); see also
Flores Molina v. Garland, 37 F.4th 626, 640 (9th Cir. 2022)
(Korman, J., concurring) (identifying cases in which we
have used the substantial-evidence standard to review the
past-persecution question and explaining why “the
substantial evidence standard is not a good fit for questions,
16 SINGH V. GARLAND
like the one presented in this case, regarding the application
of a legal standard to settled facts”).
But we have also held that we “review for substantial
evidence the BIA’s particular determination that a
petitioner’s past harm ‘does not amount to past
persecution.’” Sharma v. Garland, 9 F.4th 1052, 1060 (9th
Cir. 2021) (alteration omitted) (quoting Villegas Sanchez v.
Garland, 990 F.3d 1173, 1179 (9th Cir. 2021)). Like this
court in Flores Molina, “[w]e need not address whether de
novo review should apply, or discuss the nuances of the two
standards, because the harm [Singh] suffered rose to the
level of persecution under the more deferential ‘substantial
evidence’ standard of review” as we have applied that
standard in evaluating claims of past persecution. Flores
Molina, 37 F. 4th at 633 n.2 (citing Fon v. Garland, 34 F.4th
810, 813 n.1 (9th Cir. 2022)).
B. Asylum
Asylum is available at the discretion of the Attorney
General to an applicant who demonstrates that he is a
“refugee.” 8 U.S.C. § 1158(b)(1). A “refugee” is defined as
someone “who is unable or unwilling to return to the country
of origin ‘because of persecution or a well-founded fear of
persecution on account of race, religion, nationality,
membership in a particular social group, or political
opinion.’” Melkonian v. Ashcroft, 320 F.3d 1061, 1064 (9th
Cir. 2003) (quoting 8 U.S.C. § 1101(a)(42)(A)). “The
source of the persecution must be the government or forces
that the government is unwilling or unable to control.”
Canales-Vargas v. Gonzales, 441 F.3d 739, 743 (9th Cir.
2006).
SINGH V. GARLAND 17
1. Singh’s past persecution
Singh may demonstrate past persecution with evidence
that (1) he has endured serious harm such that his “treatment
rises to the level of persecution”; (2) “the persecution was
committed by the government, or by forces that the
government was unable or unwilling to control”; and (3)
“‘the persecution was on account of one or more protected
grounds,’ such as a political opinion.” See Kaur, 986 F.3d
at 1221–22 (quoting Bringas-Rodriguez v. Sessions, 850
F.3d 1051, 1062 (9th Cir. 2017) (en banc)). If Singh makes
such a showing, then the government bears the burden of
demonstrating that Singh can safely relocate within India
and that doing so is not unreasonable. See id. at 1230–31.
The IJ found Singh to be a credible witness. There were
only two concerns that the IJ expressed regarding Singh’s
credibility: (1) a minor omission in his declaration, and
(2) his testimony contained speculation. Neither concern
was sufficient for an adverse credibility determination, and
the IJ concluded that Singh’s testimony was “otherwise
consistent with his written statement and plausible in light of
evidence of country conditions.” The BIA did not question
this credibility determination, and there is no indication that
“the BIA implicitly found the presumption of credibility
rebutted.” Garland v. Dai, 141 S. Ct. 1669, 1679
(2021). “The only question for judges reviewing the BIA’s
factual determinations is whether any reasonable adjudicator
could have found as the agency did.” Id. at 1678. Here, we
defer to the agency’s credibility determination, which was
supported by substantial evidence.
The BIA “affirm[ed] the Immigration Judge’s
determination that the lack of serious harm does not support
a finding of persecution.” Its analysis of Singh’s past-
18 SINGH V. GARLAND
persecution claim stopped at the serious-harm prong based
on this conclusion. As the analysis below explains, we
conclude that the BIA’s determination that Singh did not
suffer serious harm is not supported by substantial evidence.
The BIA’s analysis therefore should have proceeded to the
remaining components of the past-persecution analysis. For
this reason, we remand Singh’s petition to the BIA so that it
can complete the past-persecution analysis.
i. Serious harm
We begin with an analysis of whether the record
demonstrates that Singh was a victim of serious harm while
in India. Five factors compel the conclusion that Singh
indeed experienced serious harm: (1) he was forced to flee
his home after being repeatedly assaulted; (2) one of those
incidents involved a death threat; (3) he was between the
ages of 16 and 18 when the attacks occurred; (4) his brother
also experienced this violence; and (5) we have already
recognized that Mann Party members have faced persistent
threats in the region of India where Singh was twice
attacked. The IJ and the BIA found “no reason to doubt the
truth, or ‘persuasiveness,’” of these five core factors. See
Plancarte Sauceda v. Garland, 23 F.4th 824, 827 (9th Cir.
2022) (citing Dai, 141 S. Ct. at 1680-81).
Our recent decision in Flores Molina makes clear that,
where “repeated incidents in which [the petitioner] fled were
each ‘in the face of an immediate threat of severe physical
violence or death,’” those incidents “rise to the level of
persecution.” Flores Molina v. Garland, 37 F.4th 626, 634
(9th Cir. 2022) (quoting Mendoza-Pablo v. Holder, 667 F.3d
1308, 1314 9th Cir. 2012)); id. at 636 (“Any reasonable
adjudicator would be compelled to hold that the repeated and
specific death threats that Flores Molina experienced, amid
SINGH V. GARLAND 19
the violence and menacing confrontations to which he was
subjected, amount to persecution.”).
We have held that “being forced to flee from one’s home
in the face of an immediate threat of severe physical violence
or death is squarely encompassed within the rubric of
persecution.” Id. at 633–34 (quoting Mendoza-Pablo, 667
F.3d at 1314); see also Kaur, 986 F.3d at 1222 (holding that
“[t]he hallmarks of persecutory conduct include, but are not
limited to, the violation of bodily integrity and bodily
autonomy” (citing Singh v. INS, 134 F.3d 962, 967 (9th Cir.
1998))); Lopez v. Ashcroft, 366 F.3d 799, 803 (9th Cir. 2004)
(“[P]hysical harm constitutes persecution.” (citing Chand v.
INS, 222 F.3d 1066, 1073 (9th Cir. 2000))).
We have also held that “[w]here an applicant suffers
such harm on more than one occasion, and as in this case is
victimized at different times over a period of years, the harm
is severe enough that no reasonable fact-finder could
conclude that it did not rise to the level of persecution”
necessary to sustain an asylum claim. Chand, 222 F.3d at1073–74 (citing Korablina v. INS, 158 F.3d 1038, 1044 (9th
Cir. 1998)). Even if an applicant does not suffer physical
violence, we have “consistently held that death threats alone
can constitute persecution.” Canales-Vargas, 441 F.3d at743–44 (quoting Navas, 217 F.3d at 658); see also Flores
Molina, 37 F.4th at 634 (“And we have ‘consistently held
that death threats alone can constitute persecution.’”
(emphasis in original) (quoting Navas, 217 F.3d at 658).
Singh had to flee his home after he was the victim of a
verbal confrontation and two physical attacks, one of which
involved a death threat. Based on our precedents, he
suffered serious harm. The BIA disagreed, noting that Singh
suffered from only bruises, scratches, and swollen body parts
20 SINGH V. GARLAND
after these altercations. But we do not require severe injuries
to meet the serious-harm prong of the past-persecution
analysis. See Flores Molina, 37 F.4th at 636 (“‘[I]t is the
conduct of the persecutor’ that is relevant to evaluating
whether past treatment rises to the level of persecution—not
‘the level of harm’ or ‘subjective suffering’ the petitioner
experienced.” (quoting Kaur, 986 F.3d at 1226)). As we
have previously noted, “it would be a strange rule if the
absence or presence of a broken arm were the dispositive
fact” in an asylum claim. Mihalev v. Ashcroft, 388 F.3d 722,
730 (9th Cir. 2004).
The conclusion that Singh experienced serious harm is
strengthened by the fact that these attacks occurred when he
was between the ages of 16 and 18. “Age can be a critical
factor in the adjudication of asylum claims and may bear
heavily on the question of whether an applicant was
persecuted or whether she holds a well-founded fear of
future persecution.” Hernandez-Ortiz v. Gonzales, 496 F.3d
1042, 1045 (9th Cir. 2007) (citation and alteration omitted).
The determination that Singh’s experiences constitute
serious harm is further compelled by the fact that Singh’s
brother, Harpreet, also experienced physical violence and
was forced to flee India because “harms that have befallen a
petitioner’s family members or close friends” strengthen an
applicant’s past-persecution claim. Sharma v. Garland,
9 F.4th 1052, 1062 (9th Cir. 2021). Harpreet was attacked
in April and August 2017 and suffered internal injuries at the
hands of Congress Party members. A local Mann Party
representative wrote that “[s]hould Harpreet Singh return[]
to India to adopt normal life, it is more than likely that he
would be prosecuted by the government authorities and can
be eliminated like many other activists.” That conclusion
SINGH V. GARLAND 21
was based, in part, on the persecution faced by many of those
affiliated with the Mann Party in the “recent past.”
Finally, we have recognized in multiple cases that
“Mann Party members have faced persistent harassment,
intimidation, threats, and violence in Punjab,” the Indian
state in which Singh was twice attacked. Kaur, 986 F.3d at
1219–20 (first citing Singh v. Whitaker, 914 F.3d 654, 657
(9th Cir. 2019); and then citing Singh v. Ashcroft, 362 F.3d
1164, 1167–68 (9th Cir. 2004)). We have “held that an
asylum applicant’s claim of persecution is further
strengthened when evidence that the applicant was
physically beaten and threatened with his life is presented in
conjunction with evidence of the country’s ‘political and
social turmoil.’” Aden, 989 F.3d at 1083 (quoting
Korablina, 158 F.3d at 1045).
Despite this compelling evidence, the BIA affirmed the
IJ’s determination that Singh did not suffer from past
persecution because he did not suffer serious physical injury.
But that “strange rule” is not, in fact, the rule. In the
subsequent analysis, we delve into the cases cited by the BIA
to support its conclusion. We do this because past-
persecution analysis is “best answered by comparing the
facts of Petitioner’s case with those of similar cases.” Singh,
134 F.3d at 967–68 (citation omitted).
a. Cases cited by the BIA
The BIA cited three cases in support of its decision:
Duran-Rodriguez v. Barr, 918 F.3d 1025 (9th Cir. 2019);
Hoxha v. Ashcroft, 319 F.3d 1179 (9th Cir. 2003); and Gu v.
Gonzales, 454 F.3d 1014 (9th Cir. 2006). None of these
cases involve multiple instances of physical violence
coupled with a death threat.
22 SINGH V. GARLAND
In Duran-Rodriguez, we determined that a death threat
from men believed to be hitmen delivered once over the
phone and once in person over the course of two days was
insufficient to compel the conclusion that the petitioner
suffered past persecution. 918 F.3d at 1028. Duran-
Rodriguez is dissimilar from the instant case because Singh
experienced physical violence in conjunction with a death
threat—Duran-Rodriguez did not—and because Singh was
subject to the constant threat of violence over the course of
two years, not two days.
The BIA also cited Hoxha for its conclusion that Singh
did not suffer past persecution. This reliance is misplaced.
In Hoxha, an ethnic Albanian from the former Kosovo
region of Serbia testified to suffering from harassment,
threats, and mistreatment at the hands of Serbs. Hoxha and
a friend were beaten by an anonymous group of Serbs on one
occasion when they were overheard speaking Albanian. In
concluding that Hoxha had introduced insufficient evidence
to compel a finding of past persecution, we focused on the
fact that the single incident of physical violence “was not
connected with any particular threat and there [was] no
evidence that the attackers knew who Hoxha was or that they
showed any continuing interest in him.” 319 F.3d at 1182.
In contrast, the attacks against Singh were connected
with particular threats. The 2018 attacks took place after
Congress Party members confronted Singh verbally in 2017
and attacked Singh’s brother, Harpreet, earlier that year.
Evidence within the record also indicates that Singh’s
attackers knew his identity and demonstrated a continuing
interest in him. During the third incident, Singh’s attackers
sought him out on the route between his family’s farm and
his home and threatened him with death. Sufficient evidence
demonstrates that Singh’s attackers knew his identity and
SINGH V. GARLAND 23
displayed a continuing interest in him, unlike the attackers
in Hoxha.
Gu is somewhat more applicable to the instant case than
Duran-Rodriguez or Hoxha, but is still distinguishable. In
Gu, the applicant experienced one brief detention, beating,
and interrogation by the Chinese police because he
distributed Christian religious materials and participated in
an unsanctioned religious practice. We concluded that the
one incident did not compel a finding of past persecution,
distinguishing cases in which the persecutor had some
“continued interest” in the petitioner from those of “a single,
isolated encounter.” 454 F.3d at 1020–21. Unlike the
petitioner in Gu, Singh was repeatedly targeted over a period
of two years, with members of the Congress Party tracking
his actions and taking a “continued interest” in his political
activity and efforts to get police help.
b. Two similar cases
Because the past-persecution analysis is informed “by
comparing the facts of Petitioner’s case with those of similar
cases,” Singh, 134 F.3d at 967–68, we now turn to two cases
that are quite similar to Singh’s: Aden, 989 F.3d 1073, and
Flores Molina, 37 F.4th 626.
In relevant part, Aden and his family experienced one
physical attack and a death threat while living in Somalia.
Aden worked in a theater that his brother owned. His brother
was told twice to shut down the theater, but he refused to do
so. One month later, ten men raided the theater while Aden
and his brother were working there. They struck Aden in the
head with the butt of a gun and confiscated the movie-
screening equipment.
24 SINGH V. GARLAND
The Aden court determined that “Aden presented
sufficient evidence to compel the conclusion that he suffered
persecution” because when the incidents at issue in an
applicant’s case “have involved physical harm plus
something more, such as credible death threats, we have not
hesitated to conclude that the petitioner suffered
persecution.” Id. at 1082–83 (collecting cases). It
characterized Gu as an instance of “one-off, minor physical
assault followed by a life of unrestrained religious practice
or political expression” that did not “compel the conclusion
that a person has suffered persecution” within the meaning
of the statute. Id. at 1083.
We found that Aden’s case was distinct from Gu because
“Aden [] presented a far more compelling case” by showing
that his attackers physically beat him and “kept tabs on him
by contacting his brother and warn[ing] they would kill
Aden and his brother if they continued to disobey” the
attackers’ commands. Id. Moreover, “Aden presented
evidence that Somalia continued to experience political and
social turmoil.” Id. at 1084 & n.8 (citing Human Rights
Watch World Report (2016); Human Rights Watch, UN
Human Rights Council: Interactive Dialogue with the
Independent Expert on the Situation in Somalia (Sept. 30,
2015), https://www.hrw.org/news/2015/09/30/unhuman-
rights-council-interactive-dialogue-independent-expert-
situation-somalia).
As explained above, Singh’s attackers (like Aden’s) beat
him and targeted him and his brother specifically. They also
kept tabs on him, noting that he had reported their behavior
to the police and following him when he was traveling from
his family’s farm. Singh’s case is even more extreme than
Aden’s in some ways because Singh was physically attacked
SINGH V. GARLAND 25
twice in India, whereas Aden was physically attacked only
once while he was in Somalia.
Flores Molina is also similar to Singh’s case. In Flores
Molina, the petitioner alleged past persecution in Nicaragua
based on death threats that he received after protesting the
Ortega government. Government operatives circulated
social media posts stating that Flores Molina was an
instigator and that he should be sent to prison. Ortega
supporters subsequently drove to Flores Molina’s home and
verbally threatened him. Masked individuals then spray
painted Flores Molina’s home with the words “Bullets to
Strikers.”
After these verbal threats, Flores Molina fled his home.
Paramilitary members arrived at his hideaway wearing ski
masks and demanded that he come outside. He evaded
detection in the backyard. Once the paramilitary members
left, Flores Molina fled for a second time. Six masked
individuals found his second hideaway. These individuals
hit Flores Molina in the face, causing him to lose a tooth and
ultimately develop a scar on his lip. “As they beat him, the
attackers warned Flores Molina, ‘This is what happens to the
ones that want to be part of the coup. And at the next
encounter, we’re going to kill you.’” 37 F.4th at 631. Flores
Molina did not go to the doctor to treat his injuries for fear
of seeing police officers and paramilitary members at the
hospital. Id.
The BIA held that Flores Molina had failed to show past
persecution. In rendering its decision, the BIA relied on Lim
v. INS, 224 F.3d 929 (9th Cir. 2000), for the conclusion that
threats must be very extreme to constitute persecution and
on Gu for the proposition that physical harm must rise to a
particular level to constitute persecution.
26 SINGH V. GARLAND
But we held that the record compelled the conclusion
that Flores Molina’s experiences constituted persecution
because “being forced to flee from one’s home in the face of
an immediate threat of severe physical violence or death is
squarely encompassed within the rubric of persecution,” and
“death threats alone can constitute persecution.” Id. at 633–
35 (citations and emphases omitted). The court
distinguished Lim because Lim and his family had never
been assaulted or closely confronted, whereas Flores Molina
had been physically beaten by political opponents. Id. at
635. Additionally, the court distinguished Gu because
Flores Molina, unlike Gu, experienced past persecution
based on multiple threats, an instance of physical assault,
and the broader context of violence targeted at him and
others who expressed dissatisfaction with the Ortega
government. Id. at 635–36.
The combination of death threats and physical violence
that Singh experienced is squarely in line with what we held
in Aden and Flores Molina was sufficient to compel a
finding of past persecution. Like Singh, neither Aden nor
Flores Molina suffered any life-threatening physical injuries.
At bottom, Aden, Flores Molina, and Singh were involved
in fundamentally the same scenario: a petitioner targeted for
his political views, threatened (including a death threat),
assaulted (leaving physical wounds), and compelled to flee
his home.
ii. Government involvement
We now turn to whether “the persecution was committed
by the government, or by forces that the government was
unable or unwilling to control.” Kaur, 986 F.3d at 1221. In
a different portion of the order, the BIA noted that Singh “did
not provide evidence that the source of [the] alleged
SINGH V. GARLAND 27
persecution is the Indian government or a government-
sponsored entity.” But the BIA did not address the question
of whether the government was either “unable or unwilling
to control” the attackers, and we clarify for the parties and
the agency that this prong of the past-persecution analysis
has not yet been resolved.
iii. Protected grounds
To prevail on an asylum claim, a petitioner must also
demonstrate that the persecution was “on account of” a
statutorily protected ground. Parussimova v. Mukasey, 555
F.3d 734, 739 (9th Cir. 2009). Singh argues that he was
attacked for his own attributed political opinion and his
association with his brother, a member of the Mann Party.
As above, we clarify that this question still needs to be
addressed on remand.
2. Singh’s fear of future persecution
If Singh is able, on remand, to demonstrate that he
suffered past persecution on account of a statutorily
protected ground at the hands of individuals whom the
government was unable or unwilling to control, then the
showing would “give[] rise to a presumption of a well-
founded fear of future persecution and shift[] the evidentiary
burden to the government to rebut that presumption.” See
Canales-Vargas, 441 F.3d at 743 (citation omitted). The
government would be required to show that there has been a
“fundamental change in circumstances” concerning Singh’s
well-founded fear of future persecution or that Singh could
“avoid future persecution by relocating to another part of
[India], and under all the circumstances, it would be
reasonable to expect [him] to do so.” See Boer-Sedano v.
Gonzales, 418 F.3d 1082, 1089 (9th Cir. 2005) (alteration
omitted) (quoting 8 C.F.R. § 1208.13(b)(1)(i)(A)-(B)).
28 SINGH V. GARLAND
In the present case, the BIA considered the question of
Singh’s relocation, but because the burden was on Singh, it
determined that Singh had “not demonstrated that he is
unable to relocate within India or that relocation is
unreasonable.” But, in Singh, 914 F.3d at 659, we
emphasized that once a petitioner establishes past
persecution, “the burden is on the government” to show that
the petitioner “can reasonably relocate internally to an area
of safety.” On remand, if Singh demonstrates past
persecution, the BIA should “conduct a thorough,
individualized analysis of [Singh’s] ability to relocate
internally, placing the burden on the government as required
under Singh.” See Kaur, 986 F.3d at 1231. We caution that
“an applicant cannot be said to have the ability to ‘relocate’
within [his] home country if [he] would have to remain in
hiding there.” Akosung v. Barr, 970 F.3d 1095, 1102 (9th
Cir. 2020).
C. Withholding of removal
We now turn to Singh’s request for withholding of
removal. A petitioner is entitled to withholding of removal
if he can establish a “clear probability,” INS v. Cardoza-
Fonesca, 480 U.S. 421, 430 (1987), that his “life or freedom
would be threatened” upon return because of a protected
category, 8 U.S.C. § 1231(b)(3)(A). Withholding’s “clear-
probability” standard is more stringent than asylum’s well-
founded-fear standard “because withholding of deportation
is a mandatory form of relief.” Canales-Vargas, 441 F.3d at
746.
If a petitioner establishes eligibility for asylum, he
“raises a presumption of entitlement to withholding of
deportation.” Id. (citation omitted). But an applicant who
“fail[s] to satisfy the lower standard of proof required to
SINGH V. GARLAND 29
establish eligibility for asylum . . . necessarily . . . fail[s] to
demonstrate eligibility for withholding.” Pedro-Mateo v.
INS, 224 F.3d 1147, 1150 (9th Cir. 2000) (citation omitted).
Here, the BIA reasoned that “[t]he Immigration Judge’s
denial of the respondent’s application for asylum on the
merits is also fatal to the respondent’s application for
withholding of removal under the Act,” so it did not reach
the merits of Singh’s withholding of removal claim. We
remand the withholding-of-removal claim to the BIA so that
it can determine whether Singh has established an asylum
claim and thus benefits from a “presumption of entitlement
to withholding of deportation.” See Canales-Vargas, 441
F.3d at 746.
The government, however, argues that “the agency’s
relocation finding is a dispositive determination” and that we
should uphold the BIA’s asylum and withholding decisions
because it determined that Singh could relocate within India.
But we have consistently held that improperly placing the
burden of proof on the petitioner once the petitioner has
established past persecution constitutes error in a manner
that warrants remand. See, e.g., Mashiri v. Ashcroft, 383
F.3d 1112, 1123 (9th Cir. 2004) (“The IJ erred by placing
the burden of proof on [the petitioner] rather than on the
government.”); Vardanyan v. Barr, 830 F. App’x 185, 189
(9th Cir. 2020) (holding that the BIA erred when it
“improperly shifted the government’s burden of establishing
reasonableness to [the petitioner], who, as a result, was
required to establish the unreasonableness of relocation”).
We abide by this precedent in holding that the relocation
determination is not dispositive, and we remand so that the
BIA can consider whether Singh is entitled to the
presumption given to those who have suffered from past
persecution.
30 SINGH V. GARLAND
D. Convention Against Torture
This leaves Singh’s claim for relief under CAT. To
assert this claim, Singh must establish that it is “more likely
than not” that he will be tortured if removed to India. See
Kamalthas v. INS, 251 F.3d 1279, 1282 (9th Cir. 2001)
(citing 8 C.F.R. § 208.16(c)(2)). Singh must further show
that any torture would be “inflicted by or at the instigation
of or with the consent or acquiescence of a public official or
other person acting in an official capacity.” See 8 C.F.R. §
208.18(a)(1)).
The regulations implementing CAT define torture as
any act by which severe pain or suffering,
whether physical or mental, is intentionally
inflicted on a person for such purposes as . . .
punishing him or her for an act he or she or a
third person has committed or is suspected of
having committed, . . . or for any reason
based on discrimination of any kind, when
such pain or suffering is inflicted by or at the
instigation of, or with the consent or
acquiescence of, . . . a public official acting
in an official capacity or other person acting
in an official capacity.
8 C.F.R. § 1208.18(a)(1).
The CAT analysis does not follow the same pattern as
the asylum and withholding analyses when the petitioner
establishes past persecution. Even if the petitioner
demonstrates past persecution, the burden does not shift to
the government in the analysis of a CAT claim. See
Moldanado v. Lynch, 786 F.3d 1155, 1163 (9th Cir. 2015)
SINGH V. GARLAND 31
(“The regulations governing CAT deferral, unlike the
asylum regulation, do not call for any burden shifting.”).
Here, the IJ “independently” concluded that “the Court
cannot find sufficient evidence in this record to conclude that
the treatment amounted to torture.” The BIA in the present
case concluded, based on “a review of the record,” that
“there is no clear error in the Immigration Judge’s
determination that [Singh] has not established that it is more
likely than not that he will be tortured in India by or at the
instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.”
Relevant to the CAT analysis (but included in the asylum
portion of the decision), the BIA also found that Singh could
safely relocate within India and that the country reports did
not substantiate Singh’s fear of returning to India because
they demonstrated only a fear based on general, rather than
individualized, conditions.
Taken together, the IJ’s and BIA’s findings that Singh
did not suffer past torture and was not likely to suffer future
torture were supported by substantial evidence. See Fon, 34
F.4th at 816 (finding that the record compelled a finding of
past persecution, but concluding that substantial evidence
supported the BIA’s determination that a petitioner failed to
show that it is more likely that not that he would be tortured).
We therefore deny the petition as to CAT relief.
III. CONCLUSION
For all of the reasons set forth above, we GRANT
Singh’s petition in part, DENY Singh’s petition in part, and
REMAND to the BIA for further proceedings consistent
with this opinion.
32 SINGH V. GARLAND
MILLER, Circuit Judge, concurring:
When the Board of Immigration Appeals has determined
that the harm an alien suffered was not sufficiently severe to
constitute persecution, we have sometimes treated that
determination as a factual finding and sometimes as a legal
conclusion. The appropriate standard of review in that
context implicates both intra-circuit and inter-circuit
conflicts, and, as Judge Collins has observed, “our caselaw
on this subject is a bit of a mess.” Fon v. Garland, 34 F.4th
810, 823 (9th Cir. 2022) (Collins, J., concurring). I share
Judge Collins’s view that “the en banc court should take up
these issues in an appropriate case” if the Supreme Court
does not do so first. Id.; see also id. at 819 (Graber, J.,
concurring).
Whatever the standard of review, however, our
precedent establishes rules that govern our decisions in cases
involving similar facts. Our dissenting colleague faults the
court for setting aside the Board’s decision even though it
reflected what the dissent calls “a reasonable interpretation
of our precedent,” if perhaps not the best interpretation of
that precedent. I fully agree that many of our cases in this
area—including some of those that dictate today’s
decision—have reflected insufficient deference to the Board.
But whether we like them or not, our cases are what they are,
and it is up to this court, not the Board, to say what they
mean. We must defer to the Board’s factual findings, see 8
U.S.C. § 1252(b)(4)(B), as well as, in certain cases, to its
interpretation of the statute, see Chevron U.S.A. Inc. v.
NRDC, Inc., 467 U.S. 837 (1984); Route v. Garland, 996
F.3d 968, 975 (9th Cir. 2021) (holding that Chevron
deference does not extend to most of the Board’s
unpublished decisions). But a court “gives no deference to
SINGH V. GARLAND 33
an agency’s interpretation of judicial precedent.” SFPP, L.P.
v. FERC, 967 F.3d 788, 795 (D.C. Cir. 2020) (per curiam);
accord University of Great Falls v. NLRB, 278 F.3d 1335,
1341 (D.C. Cir. 2002); Akins v. FEC, 101 F.3d 731, 740
(D.C. Cir. 1996) (en banc) (observing that there is “no reason
for courts—the supposed experts in analyzing judicial
decisions—to defer to agency interpretations of the Court’s
opinions”), vacated on other grounds, 524 U.S. 11 (1998).
And to say, as our dissenting colleague does, that the Board’s
decision must be upheld “unless our precedent would
compel any reasonable adjudicator to conclude the contrary”
is to conflate the Board’s factual findings (which we review
deferentially) with its application of the legal rules
established by our precedent (which we do not).
As the court’s opinion explains, our cases in this area
permit no conclusion other than that the harm that Singh
suffered constituted persecution. To be sure, there are many
cases in which we have upheld findings of no persecution.
Perhaps the most helpful case for the Board is Hoxha v.
Ashcroft, but that case involved an isolated incident, not a
pattern of harm. 319 F.3d 1179, 1182 (9th Cir. 2003) (“The
one incident of physical violence against Hoxha was not
connected with any particular threat.”); see Chand v. INS,
222 F.3d 1066, 1073 (9th Cir. 2000) (noting the significance
of a pattern of “harm on more than one occasion”).
Here, the most closely analogous cases are Flores
Molina v. Garland, 37 F.4th 626 (9th Cir. 2022), and Aden
v. Wilkinson, 989 F.3d 1073 (9th Cir. 2021). Of course it is
possible to identify factual differences among the cases. For
example, Flores Molina was forced to flee his home under
somewhat more difficult circumstances than Singh, was
publicly identified and targeted, was threatened slightly
more frequently, and was subjected to different country
34 SINGH V. GARLAND
conditions. Aden, likewise, received threats not only to
himself but also to his family, suffered more serious injuries,
and came from a country with somewhat different
conditions. But nothing in the reasoning of the opinions in
Flores Molina and Aden suggests that those differences
should matter. At bottom, those cases and this one involve
fundamentally the same story: The alien was targeted
multiple times for his political views, threatened (including
with a death threat), assaulted (leaving non-severe physical
wounds), and forced to flee his home. Unless we are to
overrule those cases—and, as three-judge panel, we are
unable to do so—there is no principled basis for reaching a
different result here.
IKUTA, Circuit Judge, dissenting:
A determination by the Board of Immigration Appeals
(BIA) that an alien is not entitled to asylum must be upheld
unless a reasonable factfinder would be compelled to
conclude to the contrary. INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992); see also 8 U.S.C. § 1252(b)(4)(B). Based
on that standard, we may not reverse the BIA’s
determination that Shamsher Singh’s testimony did not
demonstrate that he suffered persecution.
But the majority today “flips this standard on its head,”
Garland v. Ming Dai, 141 S.Ct. 1669, 1678 (2021). Instead
of deferring to the BIA’s determination “as one of
potentially many reasonable possibilities,” id., the majority
claims the BIA’s decision is contrary to our precedent. But
our precedent encompasses wide-ranging views of what
constitutes persecution. A fair review of our cases shows
SINGH V. GARLAND 35
that the majority reaches its conclusion only by cherry-
picking similar facts in cases where we reversed the BIA,
and distinguishing similar facts in cases where we upheld the
BIA’s conclusion. Because the Supreme Court has told us
to respect the BIA’s case-by-case application of legal
standards to the facts, and to reverse the BIA’s conclusion
only if no reasonable adjudicator could have reached that
result, I dissent from the majority’s improper approach and
conclusion.
I
The Immigration and Nationality Act (INA) gives the
Attorney General discretion to grant asylum to a refugee,
which the statute defines as an alien who is unable or
unwilling to return to his home country “because of
persecution or a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1101(a)(42).
We have defined persecution as “an extreme concept that
means something considerably more than discrimination or
harassment.” Sharma v. Garland, 9 F.4th 1052, 1060 (9th
Cir. 2021) (cleaned up); see also Duran-Rodriguez v. Barr,
918 F.3d 1025, 1028 (9th Cir. 2019).
Notwithstanding our confusing case law, see Maj. at 15–
16, the Supreme Court has been clear about the standard for
reviewing the BIA’s determination that an applicant for
asylum did not show “persecution or a well-founded fear of
persecution on account of” a protected ground. See Elias-
Zacarias, 502 U.S. 478 (1992). In Elias-Zacarias, the
agency determined that an alien’s rejection of an attempt by
guerillas to recruit him did not demonstrate persecution or a
well-founded fear of persecution on account of a protected
ground. We disagreed and granted the alien’s petition,
36 SINGH V. GARLAND
ruling that “acts of conscription by a nongovernmental group
constitute persecution on account of political opinion” and
that the alien had a “well-founded fear” of such recruitment.
Id. at 481.
The Supreme Court reversed, holding that we erred both
in our interpretation of the INA and in our failure to apply
the correct standard of review. As to the standard of review,
the Court explained that a court must uphold “[t]he BIA’s
determination that the alien was not eligible for asylum” so
long as that determination was supported by substantial
evidence, which meant that a court could reverse the BIA’s
determination only if the evidence presented by the alien
“was such that a reasonable factfinder would have to
conclude that the requisite fear of persecution existed.” Id.
at 481. 1 In other words, to reverse the BIA, the alien would
have to show that the record “compels the conclusion” that
the legal standard is met. Id. at 483. But the evidence in
Elias-Zacarias did not compel the conclusion that the alien
held a political opinion or had “a ‘well-founded fear’ that the
guerillas would persecute him because of that political
1
At the time the Supreme Court ruled, the statute provided that the
agency’s determination had to be upheld if “supported by reasonable,
substantial, and probative evidence on the record, considered as a
whole.” 8 U.S.C. § 1105a(a)(4) (1991). This language was subsequently
replaced by the INA’s current language, stating that the agency’s
“findings of fact must be upheld unless any reasonable adjudicator would
be compelled to conclude the contrary.” 8 U.S.C. § 1252(b)(4)(B).
These standards are the same. See Nasrallah v. Barr, 140 S. Ct. 1683,
1692 (2020) (defining “the substantial-evidence standard” to mean “[t]he
agency’s ‘findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary’” (citing §
1252(b)(4)(B)).
SINGH V. GARLAND 37
opinion” with the requisite “degree of clarity necessary to
permit reversal of a BIA finding to the contrary.” Id. 2
Before Elias-Zacarias, the Supreme Court had
recognized a different aspect of the deferential standard of
review for the BIA’s application of a legal standard to the
facts. See INS v. Cardoza-Fonseca, 480 U.S. 421, 448
(1987). Here the Court explained, “[t]here is obviously
some ambiguity in a term like ‘well-founded fear’ which can
only be given concrete meaning through a process of case-
by-case adjudication.” Id. And “[i]n that process of filling
any gap left, implicitly or explicitly, by Congress, the courts
must respect the interpretation of the agency to which
Congress has delegated the responsibility for administering
the statutory program.” Id. (citing Chevron, U.S.A., Inc. v.
Nat. Res. Def. Council, 467 U.S. 837, 843 (1984)).
Therefore, it is advisable that courts not “set forth a detailed
description of how” a particular legal standard should be
applied. Id. Reading Cardoza-Fonseca together with Elias-
Zacarias, we are to give Chevron deference to the BIA’s
determination of how a legal standard (such as the asylum
standard for well-founded fear of persecution) applies to the
2
The Court also corrected our interpretation of the law. We had reasoned
that “a guerrilla organization’s attempt to conscript a person into its
military forces necessarily constitutes ‘persecution on account of . . .
political opinion,’ because ‘the person resisting forced recruitment is
expressing a political opinion hostile to the persecutor and because the
persecutors’ motive in carrying out the kidnapping is political.’” Elias-
Zacarias, 502 U.S. at 481. In rejecting our interpretation of the INA, the
Court held first that a guerilla’s recruitment efforts do not “necessarily”
constitute persecution on account of political opinion because a person
may resist recruitment for a variety of reasons, and then held that in
determining whether the alien has suffered persecution on account of
political opinion only the alien’s views, not the persecutor’s, are relevant.
Id. at 481–82.
38 SINGH V. GARLAND
facts of a new case, even if we would have reached a
different conclusion.
While our review of the BIA’s application of a legal
standard to the facts is circumscribed, we still retain the final
authority to correct errors of law. For instance, if a court
“employing traditional tools of statutory construction,
ascertains that Congress had an intention on the precise
question at issue, that intention is the law and must be given
effect.” Id. In this vein, we have reversed the BIA if it
applied the wrong standard of review, see Rodriguez v.
Holder, 683 F.3d 1164, 1169–70 (9th Cir. 2012),
“misstate[ed] the record [or] fail[ed] to mention highly
probative or potentially dispositive evidence,” Castillo v.
Barr, 980 F.3d 1278, 1283 (9th Cir. 2020), or provided
insufficient explanation to show that it conducted “an
individualized review of the petitioner’s circumstances,”
Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995).
We have not had an easy time in discerning the line
between proper deference to the BIA’s adjudication of
specific cases and discharging our responsibility to decide
“narrow legal questions,” Cardoza-Fonseca, 480 U.S. at
448. Thus, notwithstanding the agency’s responsibility for
giving the term “persecution” concrete meaning through
case-by-case decisionmaking, we have frequently weighed
in on this issue. See, e.g., Flores Molina v. Garland, 37 F.4th
626, 633–37 (9th Cir. 2022); Sharma, 9 F.4th at 1061–63.
Our rulings as to when facts satisfy the legal standard of past
or future persecution are binding on both us and the BIA, see
Silva v. Garland, 993 F.3d 705, 717 (9th Cir. 2021), and
therefore provide guidance as to what a reasonable jurist
may consider compelling evidence of past persecution. See
Singh v. INS, 134 F.3d 962, 967–68 (“This inquiry . . . is
SINGH V. GARLAND 39
perhaps best answered by comparing the facts of Petitioner’s
case with those of similar cases.”).
Nevertheless, our precedents on this issue cannot be
applied as mechanical rules. Because applicants for asylum
relief present a boundless variety of individual
circumstances, “[t]he determination that actions rise to the
level of persecution is very fact-dependent,” Cordon-Garcia
v. INS, 204 F.3d 985, 991 (9th Cir. 2000), and this analysis
“is not reducible to a set formula” or bright-line rules.
Sharma, 9 F.4th at 1061. Indeed, the Supreme Court has
warned against imposing such rules on the BIA. In Elias-
Zacarias, the Supreme Court rejected our per se rule that a
guerilla’s recruitment effort “necessarily constitutes
‘persecution on account of . . . political opinion.” 502 U.S.
at 481. And in Garland v. Ming Dai, the Supreme Court
struck down our “special rule” that a reviewing court must
treat an alien’s testimony as credible in the absence of an
adverse credibility determination by the agency. 141 S. Ct.
1669, 1674, 1677 (2021).
Therefore, although the BIA may be guided by the legal
framework we have developed, it is not bound by any hard-
and-fast “special rule.” The BIA is permitted to weigh
evidence differently than we might, such as by giving more
weight to one aspect of a petitioner’s testimony or
experiences than to another. See id. at 1678. And the agency
retains broad discretion to weigh the “persuasiveness and
legal sufficiency” of facts in the record. Id. at 1681.
Therefore, when the BIA determines that the full picture
offered by the alien is not so severe as to amount to
persecution, we must defer to this conclusion unless it is
such an extreme outlier among our precedents that it cannot
be reasonably reconciled with them. See Duran-Rodriguez,
918 F.3d at 1028.
40 SINGH V. GARLAND
II
In this case, our precedent does not establish that any
reasonable fact-finder would be compelled to overturn the
BIA’s conclusion that Shamsher Singh failed to carry his
burden of proving the treatment he suffered in India rose to
the level of persecution. See Khourassany v. INS, 208 F.3d
1096, 1100 (9th Cir. 2000); see also 8 U.S.C.
§ 1252(b)(4)(B).
The BIA considered the following evidence in the
record. Singh testified that his brother, Harpreet, joined the
Mann Party in December 2016. Members of the Congress
Party attacked Harpreet twice, in April 2017 and August
2017, causing him “some internal injuries.” 3 Harpreet then
fled to the Untied States. In 2017, members of the Congress
Party asked Singh where his older brother was and told him
that he and his brother should join the Congress Party.
Singh was beaten twice. The first time, four men
punched and kicked him and he suffered “pain in [his]
stomach.” His mother gave him herbal remedies, and he
sought no further medical treatment. The second time, five
men beat him with hockey sticks, told him that they were
going to kill him “now,” and stopped their attack only after
nearby farmers arrived. Singh suffered “small bruises,
scratches, blue marks and some part of swollen body.” A
village doctor gave him pain medication and bandages and
advised him to rest in bed. Attackers beat Singh’s brother
3
The majority states that Singh testified that he suffered “serious internal
injuries,” Maj. at 10, but cites no basis in the record for calling them
“serious.” Cf. Elias-Zacarias, 502 U.S. at 816 n. 2 (criticizing the dissent
for misdescribing the record to enhance the “‘well foundedness’ of
whatever fear [the alien] possesses, by progressively transforming his
testimony”).
SINGH V. GARLAND 41
for the same political involvement. Finally, a Mann Party
member represented that there is ongoing violence against
members of Singh’s political group in the relevant region.
The BIA determined that “considering all of the harm
that [Singh] experienced cumulatively in the totality of the
circumstances,” including the lack of any serious physical
injuries, Singh “has not demonstrated that the harm he
experienced rises to the level of persecution.” In reaching
this conclusion, the BIA cited Ninth Circuit cases upholding
the agency’s finding of no past persecution in analogous
circumstances.
The BIA’s determination was not so far outside a
reasonable interpretation of our precedent as to compel a
different conclusion. First, as the majority acknowledges,
Maj. at 23, there is no precedent directly on point. Rather,
our precedents describe a range of situations that include
some but not all of Singh’s experiences, and which resulted
in differing decisions, some upholding and some reversing
the BIA’s determination. 4
4
The concurrence states that we do not defer “to an agency’s
interpretation of judicial precedent,” relying on several D.C. Circuit
opinions. Concur. at 32–33. One rejected an agency order under the
arbitrary and capricious standard, SFPP, L.P. v. FERC, 967 F.3d 788,
795 (D.C. Cir. 2020), cert. dismissed, 141 S. Ct. 2170 (2021), making it
irrelevant to this case. The others, stating that courts are not obligated to
defer to agency interpretations of judicial decisions, Univ. of Great Falls
v. NLRB, 278 F.3d 1335, 1341 (D.C. Cir. 2002); Akins v. FEC, 101 F.3d
731, 740 (D.C. Cir. 1996) (en banc), vacated on other grounds, 524 US.
11 (1998), are equally inapt. The BIA is not interpreting our precedent
here. Rather, it is making a fact-specific determination of whether the
actions in this case rise to the level of “persecution” under the INA.
Under the substantial evidence standard, which is applicable in this
context, we must uphold this determination unless our precedent would
42 SINGH V. GARLAND
We have upheld the BIA’s finding of no past persecution
in cases involving treatment that was in some ways more
severe than that alleged by Singh. In Prasad v. INS, 47 F.3d
336 (9th Cir. 1995), the petitioner was “taken to a police
station,” “placed in a jail cell,” “hit on his stomach and
kicked from behind,” and threatened with being arrested and
beaten again. 47 F.3d at 339. In Duran-Rodriguez v. Barr,
the petitioner was threatened with death twice in two days.
918 F.3d at 1028–29. In Halim v. Holder, 590 F.3d 971(9th
Cir. 2009), the petitioner was variously stripped naked, spat
on and threatened, refused service at a health clinic, falsely
arrested by police, and beaten by a mob of rioters over the
course of roughly ten years. 590 F.3d.at 975–76. In Gu v.
Gonzales, 454 F.3d 1014 (9th Cir. 2006), the petitioner was
imprisoned by police for three days and beaten with a rod.
454 F.3d at 1018. In Hoxha v. Ashcroft, 319 F.3d 1179 (9th
Cir. 2003), the petitioner suffered “extensive facial bruises
and two broken ribs” and was threatened with death. 319
F.3d at 1181. In Lim v. INS, 224 F.3d 929 (9th Cir. 2000),
the petitioner received a long series of death threats over the
course of several years, and three of his colleagues were
murdered. 224 F.3d 929 at 932–35. In Sharma, police
officers “beat” and “slapped” the petitioner, “apparently
with a baton,” and held him in a room where they “beat[ ],
compel any reasonable adjudicator to conclude the contrary. See 8
U.S.C. § 1252(b)(4)(B). Contrary to the concurrence, Concur. at 32, we
review the BIA’s determination as to whether facts in the record meet
the standard set forth in the INA under the substantial evidence standard.
See, e.g., Elias-Zacarias, 502 U.S. at 481 n.1 (instructing that to reverse
a BIA finding that a petitioner has not been persecuted on account of his
political opinion a court “must find that the evidence not only supports”
a conclusion that the petitioner’s refusal to join a guerilla group
constituted the statement of a political opinion “but compels it”).
SINGH V. GARLAND 43
slap[ped], and shove[d] him throughout the night.” 9 F.4th
at 1063 (alterations in original). Based on this guidance, the
BIA could reasonably conclude that Singh’s treatment,
which was not as severe as some of these examples, did not
constitute persecution.
The majority argues that we may not rely on these
opinions, however, because there are facts in each of these
cases that make them distinguishable from the situation in
Singh’s case. Maj. at 21. For example, the majority
contends that Hoxha’s severe beating and death threat were
offset by the fact that the beating itself “was not connected
with any particular threat” and his attackers did not appear
to know him. Maj. at 22. See Hoxha, 319 F.3d at 1182. And
the majority brushes off Gu’s three days of imprisonment
and violent interrogation at the hands of police as ‘one brief’
episode. Maj. at 23. See Gu, 454 F.3d at 1020–21. Of
course, there will always be factual distinctions between
different cases, such as the number of assaults, the precise
context of those assaults, the presence and severity of
threats, and the span of time over which the mistreatment
took place. But such distinctions do not make those
precedents irrelevant or make it unreasonable for the BIA to
rely on them along with other precedents. Nor is it
disqualifying that “[n]one of these cases involve multiple
instances of physical violence coupled with a death threat,”
a point emphasized by the majority, Maj. at 21. Indeed, to
the extent the majority is suggesting that two violent
instances and a death threat constitute persecution as a
matter of law, it is antithetical to our “carefully
circumscribed” role. Ming Dai, 141 S. Ct. at 1677. The INA
does not define “persecution,” and this inquiry “is not
reducible to a set formula.” Sharma, 9 F.4th at 1061; see
also Singh, 134 F.3d at 967–68. Such a rule would be
44 SINGH V. GARLAND
exactly the kind of “embellishment” we may not impose on
the BIA. Ming Dai, 141 S. Ct. at 1677.
By the same token, the two precedents on which the
majority most heavily relies are equally distinguishable from
Singh’s case. See Aden v. Wilkinson, 989 F.3d 1973 (9th Cir.
2021); Flores Molina, 37 F.4th 626. But the majority fails
to acknowledge this fact. Instead, once it turns to these
favorable precedents, its approach changes dramatically. In
its new posture, the majority emphasizes only details that it
portrays as similar or less severe than Singh’s case, and it
glosses over every detail that is plainly more severe.
In Aden, the applicant for asylum testified that men
ordered Aden and his brother to shut down their movie
theater, raided the theater with guns, struck the petitioner in
the head with the butt of a rifle “causing him to bleed
profusely,” and stole the theater’s equipment. 989 F.3d at
1077. On a later occasion, the men beat Aden and his brother
with wooden sticks and robbed them. Id. at 1078. On a third
occasion, two men with guns threatened to kill Aden and
robbed him. Id. Two weeks later, a man called Aden’s
brother and warned him that if he reopened the theater, both
brothers would be killed. Id. at 1077–78. The majority
grasps at the similarities between Aden and Singh’s case,
such as the fact that the assailants in both cases targeted the
victims and followed them from location to location. But the
majority ignores the distinctions between these cases. The
incidents in Aden were more severe than in Singh’s case,
because Aden was attacked, robbed, or threatened with death
on four occasions, as opposed to Singh’s two. Moreover,
Aden bled profusely from the head when struck with a rifle
butt, which is more severe than the “small bruises” and other
injuries Singh sustained.
SINGH V. GARLAND 45
In Flores Molina, assailants including government
operatives and government-aligned paramilitary members,
came to Flores-Molina’s home with assault rifles. 37 F.4th
at 631. The assailants doggedly pursued Flores-Molina to
his home and to two subsequent hiding places, threatening
or assaulting him each time. Id. Further, Flores Molina was
subjected to a long series of detailed public threats posted
publicly to the internet by government operatives and sent to
him directly via WhatsApp. Id. These threats escalated and
culminated in two death threats. The threat “Bullets to
Strikers” was painted on his house, and “at the next
encounter” the assailants stated “we’re going to kill you”
during a beating. Id. at 630–31. This beating caused Flores
Molina to lose a tooth and left scarring on his lip. Id. at 631.
Flores Molina sought medical attention at a hospital, but the
entrance was blocked by police and paramilitary members,
and he was unable to enter. Id. Finally, Flores Molina
participated in protests where “police and paramilitary
members regularly shot at, wounded and killed
demonstrators.” Id. at 630. He witnessed assailants
murdering his friend at a demonstration. The country
conditions reports showed that between April and July 2018,
“it was estimated that over 300 protestors [aligned with
Flores Molina] were killed by the police and government
operatives.” Id.
Again, the majority notes the similarities to Singh’s case:
neither alien suffered life-threatening physical injuries. But
again, the majority ignores important distinctions. The
incidents in Flores Molina were more severe than those
reported by Singh, in that Singh received far fewer threats
overall, and he received only a single death threat, rather
than two. The assailants who threatened Singh were not
government operatives, and their only weapons were hockey
46 SINGH V. GARLAND
sticks, as opposed to assault rifles. Singh was never
confronted or threatened by a government operative or with
a gun. And unlike Flores Molina, Singh suffered no lasting
injuries. Finally, the turmoil in Singh’s country (India) was
less severe than that in Flores-Molina’s country (Nicaragua).
Singh alleged that his brother was attacked by members of
the Congress Party, and a Mann Party representative stated
that the government had injured, jailed and killed Sikhs in
2015. In Flores Molina, by contrast, the police and
government operatives had recently killed hundreds of
protestors aligned with Flores Molina in the previous year,
including at protests Flores Molina attended. 37 F.4th at
630–31.
This is not to say that Aden and Flores Molina are
irrelevant; they likewise provide guidance in reviewing the
BIA’s opinion. But neither do they resolve the question
whether the incidents described by Singh amount to
persecution. Rather, reasonable minds could differ as to how
our full body of precedents apply in this case. Our task is
merely to determine whether the BIA’s decision is so
contrary to our case law that no reasonable factfinder could
have reached the same conclusion; we do not have the
authority to decide the case in the first instance, as if we were
directly applying our case law to the facts at hand.
Moreover, we must respect the BIA’s process of giving
meaning to the term “persecution” through its case-by-case
adjudication. Cardoza-Fonseca, 480 U.S. at 448. The
majority therefore errs in weighing the similarities and
differences between our precedents in this case and “giv[ing]
SINGH V. GARLAND 47
conclusive weight” to any fact that “cuts against the
agency’s finding.” Ming Dai, 141 S. Ct. at 1678. 5
In short, the only question before us is whether the BIA’s
determination that Singh did not suffer persecution compels
any reasonable factfinder to disagree, and “to conclude that
the requisite fear of persecution existed.” Elias-Zacarias,
502 U.S. at 481. Because the BIA’s determination here
“qualifies as one of potentially many reasonable
possibilities” for deciding this issue, Ming Dai, 141 S. Ct. at
1678, I would deny the petition. For these reasons, I dissent.
5
The concurrence commits the same error. It concedes that Aden and
Flores Molina are factually distinguishable from this case, but reasons
that these factual differences do not matter because “those cases and this
one involve fundamentally the same story.” Concur. at 34. But the
concurrence fails to discuss other precedents where we upheld the
agency’s finding of no persecution. See supra at 10–11. For
instance, Hoxha and this case could also be said to “involve
fundamentally the same story.” In Hoxha, the alien was threatened
(including with a death threat) and suffered physical violence. See
Hoxha, 319 F.3d at 1181. Like the majority, the concurrence ignores
similarities in cases that upheld the agency while focusing on similarities
in cases that reversed the agency. Neither the majority nor the
concurrence justifies this inconsistent approach to our precedents.