Balvir Singh v. Holder ( 2011 )


Menu:
  •                                                                              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    NOT FOR PUBLICATION                               OCT 25 2011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
    2
    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
    3
    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.
    4