Satnam Singh v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SATNAM SINGH, No. 17-72405
Petitioner, Agency No. A087-995-270
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 12, 2020**
Pasadena, California
Before: WARDLAW, COOK,*** and OWENS, Circuit Judges.
Satnam Singh, a native and citizen of India, petitions for review of the Board
of Immigration Appeals’ (BIA) final removal order dismissing his appeal from the
Immigration Judge’s (IJ) decision denying him asylum, withholding of removal,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Deborah L. Cook, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
and protection under the Convention Against Torture (CAT). As the parties are
familiar with the facts, we do not recount them here. We review questions of law
de novo and the BIA’s factual findings for substantial evidence. Lopez-Vasquez v.
Holder, 706 F.3d 1072, 1078 (9th Cir. 2013). We have jurisdiction under 8 U.S.C.
§ 1252. We grant the petition in substantial part, and remand to the BIA for further
consideration consistent with this disposition.
1. For the first time in his Reply Brief, Singh argues that the BIA lacked
jurisdiction over his case in light of Pereira v. Sessions, 138 S. Ct. 2105 (2018).
However, Pereira considered only whether the issuance of a defective notice to
appear stops the accrual of continuous residency for petitioners seeking
cancellation of removal. Karingithi v. Whitaker, 913 F.3d 1158, 1160–61 (9th Cir.
2019). Singh’s defective notice to appear therefore did not strip the BIA of
jurisdiction over this case. Id.
2. In denying Singh’s applications for asylum and withholding of
removal, the BIA held that the government had rebutted any presumption of future
persecution because circumstances had fundamentally changed in Punjab and
because Singh could avoid such persecution by relocating within India. See 8
U.S.C. § 1208.16(b)(1). On appeal, the government mentions changed
circumstances only in a footnote, with no argument in support of the BIA’s
findings. The government therefore forfeits any argument that the BIA’s changed
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circumstances finding was supported by substantial evidence. United States v.
Strong, 489 F.3d 1055, 1060 n.4 (9th Cir. 2007) (“The summary mention of an
issue in a footnote, without reasoning in support of the [party’s] argument, is
insufficient to raise the issue on appeal.” (citation omitted).
As for internal relocation, the BIA failed to conduct a “reasoned analysis
with respect to a petitioner’s individualized situation.” Narinder Singh v.
Whitaker, 914 F.3d 654, 661 (9th Cir. 2019). The BIA spent, at most, two
paragraphs considering whether Singh could relocate within India. The BIA did
not meaningfully apply any of the factors listed in 8 C.F.R. § 1208.13(b)(3) to
Singh’s individual circumstances. See Knezevic v. Ashcroft, 367 F.3d 1206, 1214–
15 (9th Cir. 2004) (remanding reasonableness question after BIA failed to consider
several factors under § 1208.13(b)(3)). It is not enough to show that a petitioner is
physically capable of relocating; instead, the BIA must consider “the persons or
entities that caused the past persecution” and “the nature and extent of the
persecution” to determine whether the petitioner would be “substantially safer in a
new location.” Narinder Singh, 914 F.3d at 660–61. We remand the BIA’s
decisions regarding asylum and withholding so it can complete this necessary
analysis.
3. To receive humanitarian asylum, the applicant must show either
“compelling reasons for being unwilling or unable to return to the country [of
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nationality] arising out of the severity of the past persecution” or “a reasonable
possibility that he or she may suffer other serious harm upon removal to that
country.” 8 C.F.R. § 1208.13(b)(1)(iii). This form of relief is reserved for
“atrocious forms of persecution,” and this is not the case here. Kebede v. Ashcroft,
366 F.3d 808, 812 (9th Cir. 2004) (citation omitted). Substantial evidence supports
the BIA’s decision denying humanitarian asylum.
4. The BIA failed to properly review Singh’s application for CAT relief
based on the totality of the circumstances. “CAT’s implementing regulations
explicitly require the agency to consider ‘all evidence relevant to the possibility of
future torture,’” which “includes the petitioner’s testimony and country conditions
evidence.” Parada v. Sessions, 902 F.3d 901, 914–15 (9th Cir. 2018) (quoting
Cole v. Holder, 659 F.3d 762, 770–72 (9th Cir. 2011)). Here, the BIA failed to
discuss the voluminous country conditions evidence that Singh introduced into the
record. To the extent the BIA may have considered some country conditions
evidence in connection with Singh’s asylum and withholding claims, the BIA
nonetheless committed reversible error by failing to evaluate that evidence
explicitly in connection with Singh’s CAT claim. Parada, 902 F.3d at 916. We
remand so the BIA can perform the proper analysis.
5. The BIA also improperly denied Singh’s motion to reopen or remand
proceedings to the IJ. Such a motion should be granted if the “evidence sought to
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be offered is material and was not available and could not have been discovered or
presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). Singh’s proffered
evidence shows that the Congress Party—whose members allegedly persecuted
Singh in Punjab—won the 2017 regional elections in Punjab. This directly rebuts
the BIA’s finding that circumstances have fundamentally changed, which was
based largely on the Bharatiya Janata Party’s rise to power in 2014. The BIA
abused its discretion by denying Singh’s motion, and we remand so Singh may
introduce this new evidence into the record.
PETITION FOR REVIEW GRANTED IN PART, DENIED IN PART,
AND REMANDED ON AN OPEN RECORD.1
1
The respondent shall bear costs on appeal.
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