Balvir Singh v. Holder , 454 F. App'x 633 ( 2011 )

FILED
NOT FOR PUBLICATION OCT 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BALVIR SINGH, No. 07-72396
Petitioner, Agency No. A095-415-562
v.
MEMORANDUM *
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 12, 2011
San Francisco, California
Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
Balvir Singh, a native and citizen of India, petitions for review of the
decision of the Board of Immigration Appeals (“BIA”) affirming the Immigration
Judge’s (“IJ”) denial of his applications for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). We have jurisdiction
under 8 U.S.C. § 1252.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Having established past persecution, Singh is entitled to the
presumption that he has a well-founded fear of future persecution. Ali v. Holder,
637 F.3d 1025, 1029 (9th Cir. 2011). Substantial evidence does not support the
BIA’s finding that the government showed, by a preponderance of the evidence,
that a fundamental change in country conditions occurred in India such that Singh
no longer has a well-founded fear of persecution. See id. The country reports
relied on by the BIA do not serve to rebut, on an individualized basis, the
presumption that Singh’s fear of future persecution is well-founded. See id. at
1030-31; Chand v. INS, 222 F.3d 1066, 1079 (9th Cir. 2000) (general country
report information describing an improvement in conditions prior to the
persecution suffered by the applicant is not sufficient to rebut the presumption).
2. Because Singh suffered past persecution at the hands of the Indian
police, he is entitled to the presumption that the threat of persecution against him
exists nationwide, and the government bears the burden of proving, by a
preponderance of the evidence, that he could reasonably relocate to avoid future
persecution. Melkonian v. Ashcroft, 320 F.3d 1061, 1070 (9th Cir. 2003). The
generalized information relied on by the BIA falls short of providing substantial
evidence to support the determination that a preponderance of the evidence showed
that Singh could reasonably relocate free of future persecution to other parts of the
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country. See Singh v. Ilchert, 69 F.3d 375, 380 (9th Cir. 1995); Borja v. INS, 175
F.3d 732, 737-38 (9th Cir. 1999) (en banc) (country report stating it was “generally
possible to seek internal resettlement” was insufficient to overcome presumption).
See also Salazar-Paucar v. INS, 281 F.3d 1069, 1077 (9th Cir. 2002) (mere
passage of time cannot rebut the presumption of future persecution).
3. Singh is therefore eligible for asylum. The IJ and the BIA have
already concluded that, barring changes in country conditions and the possibility of
reasonable relocation, Singh demonstrated eligibility for asylum. We do not need
to remand for further consideration of changed conditions and the possibility of
relocation. We have reviewed and applied the correct legal standard to the IJ’s and
the BIA’s interpretation of the documents in the record on these issues. Compare
INS v. Ventura, 537 U.S. 12, 17 (2002) (requiring remand where BIA had not yet
considered changed conditions question in the first instance). This case has
already been remanded once for consideration of changed country conditions. Cf.
He v. Ashcroft, 328 F.3d 593, 604 (9th Cir. 2003). We therefore grant the petition
and remand to the agency to exercise its discretion with regards to Singh’s asylum
claim.
4. The IJ and the BIA have not yet decided in the first instance whether
Singh has met the more stringent standard for withholding of removal. We
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therefore remand for further proceedings on whether Singh is eligible for
withholding of removal.
5. Substantial evidence supports the BIA’s determination that Singh is
not eligible for CAT relief because he did not establish that he would “more likely
than not” be tortured if returned to India. 8 C.F.R. § 208.16(c)(2). We deny
Singh’s petition with regard to his CAT claim.
PETITION FOR REVIEW DENIED in part; GRANTED in part; and
REMANDED. No costs.
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