Hardeep Singh v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HARDEEP SINGH, No. 21-70289
Petitioner, Agency No. A200-993-518
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 7, 2021**
San Francisco, California
Before: LUCERO,*** IKUTA, and VANDYKE, Circuit Judges.
Memorandum joined by Judge IKUTA and Judge VANDYKE;
Dissent by Judge LUCERO
Hardeep Singh (Singh) petitions for review of the Board of Immigration
*
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 Carlos F. Lucero, United States Circuit Judge for the U.S. Court
of Appeals for the Tenth Circuit, sitting by designation.
Appeals’ (BIA) January 28, 2021, affirmance of the Immigration Judge’s (IJ)
decision denying his claims for asylum, withholding of removal, and request for
protection under the Convention Against Torture (CAT). We have jurisdiction under
8 U.S.C. § 1252, and we deny the petition for review.1
“Where, as here, the BIA agrees with the IJ’s reasoning, we review both
decisions.” Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018); Lai
v. Holder, 773 F.3d 966, 970 (9th Cir. 2014) (“In so doing, we review … the reasons
explicitly identified by the BIA, and then examine the reasoning articulated in the
IJ’s oral decision in support of those reasons.”) (citation omitted). “Thus, we refer
to the Board and IJ collectively as ‘the agency.’” Medina-Lara v. Holder, 771 F.3d
1106, 1111 (9th Cir. 2014). Under substantial evidence review, we treat the agency’s
factual findings as “conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Rayamajhi v.
Whitaker, 912 F.3d 1241, 1243 (9th Cir. 2019). Accordingly, in order to reverse the
agency’s finding, “we must find that the evidence not only supports that conclusion,
but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).
Here, the agency concluded that Singh (a Sikh and Mann Party supporter)
demonstrated past persecution by police officers in Punjab, creating a presumption
of future persecution in support of his asylum application, which the government
1
The parties are familiar with the facts, so we repeat them here only as necessary.
2
bore the burden to rebut. Popova v. INS, 273 F.3d 1251, 1259 (9th Cir. 2001) (citing
8 C.F.R. § 1208.13(b)(1)(i); Singh v. Ilchert, 69 F.3d 375, 378 (9th Cir. 1995)). The
agency reasonably determined that the government sufficiently rebutted the
presumption of future persecution with evidence that Singh could safely and
reasonably relocate outside of Punjab (including a 2018 report from the Library of
Congress titled “India: Feasibility of Relocation of Sikhs and Members of the
Shiromani Akali Dal (Mann) Party,” which concludes that relocation is feasible as
long as the individual is not a high-profile militant of interest to the central
authorities, together with Singh’s own testimony that he is not a high-profile member
of the Mann Party and has never been linked to any terrorism or extremism in India).
Contrary to Singh’s assertion on appeal, the agency conducted an individualized
assessment and, after weighing the evidence, determined that relocation was safe
(given the localized nature of Singh’s previous harms) and reasonable (given his
financial, educational, and physical means). Although Singh testified that he
continues to be a Mann party member and donates to the party, given that Singh
expressed fear only of the police targeting him, and did not claim any potential harm
by Congress Party members or other local authorities, cf. Singh v. Whitaker, 914
F.3d 654, 661 (9th Cir. 2019), the record does not compel a conclusion different than
the agency’s because substantial evidence supports the finding that Singh could
safely and reasonably relocate within India—rendering him ineligible for asylum.
3
See INS v. Ventura, 537 U.S. 12, 18 (2002) (noting that asylum is unavailable if an
applicant can safely relocate to another part of his home country) (citing 8 C.F.R.
§ 208.13(b)(1)(i)).
Because substantial evidence supports the agency’s determination that
internal relocation is possible and reasonable, the BIA did not err in affirming the
IJ’s dismissal of Singh’s application for withholding of removal based on the
agency’s relocation conclusion.2 See 8 C.F.R. § 1208.16(b)(2) (relocation is relevant
to assessing eligibility for withholding of removal and the likelihood of future
persecution); Sowe v. Mukasey, 538 F.3d 1281, 1288 (9th Cir. 2008) (“When the
government rebuts an applicant’s well-founded fear of future persecution, it defeats
the applicant’s asylum claim, and his or her claim for withholding of removal.”)
(citing Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 999, 1001 n.5 (9th Cir. 2003)
(“Because we hold that [petitioner] and his family do not have a well-founded fear
of persecution, it necessarily follows that they do not qualify for withholding of
removal.”)).
Similarly, the agency did not err in concluding that the same possibility of
relocation made Singh ineligible for protection under CAT—which requires that he
2
Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir. 2000) (“A failure to satisfy the
lower standard of proof required to establish eligibility for asylum therefore
necessarily results in a failure to demonstrate eligibility for withholding of
deportation.”) (internal citation omitted).
4
demonstrate a more likely than not risk of torture if returned to India and, unlike
asylum, involves no burden shifting to the government. See Singh v. Ashcroft, 351
F.3d 435, 443 (9th Cir. 2003) (citing 8 C.F.R. § 208.16(c)(3) (relocation is relevant
to assessing eligibility for CAT relief and the likelihood of future torture)); Tamang
v. Holder, 598 F.3d 1083, 1095 (9th Cir. 2010) (noting that “evidence of relevant
country conditions is extremely important, as is the ability of [petitioner] to safely
relocate to another part of his country of origin” for purposes of determining whether
it is more likely than not that petitioner will be tortured if returned to his country of
origin); Maldonado v. Lynch, 786 F.3d 1155, 1163 (9th Cir. 2015) (en banc) (“The
regulations governing CAT deferral, unlike the asylum regulation, do not call for
any burden shifting.”). Because substantial evidence supports the agency’s
conclusion that Singh could safely and reasonably relocate to avoid future
persecution (defeating his asylum and withholding claims), substantial evidence also
supports its conclusion that Singh could safely relocate to avoid future torture—
defeating his application for CAT relief. See Aguilar Fermin v. Barr, 958 F.3d 887,
893 (9th Cir. 2020) (upholding the agency’s denial of CAT relief where the record
supported the conclusion that the petitioner could safely internally relocate within
Mexico).
Accordingly, the petition for review is DENIED.
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FILED
Hardeep Singh v. Merrick Garland, 21-70289 MAR 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LUCERO, Senior Circuit Judge, dissenting:
Having established, as found by the immigration judge in this case, that he
was jailed and beaten for espousing political and religious views disfavored by
local authorities, the burden shifts from Hardeep Singh to the government to prove
by a preponderance of the evidence that he could safely relocate away from his
home region of Punjab to another part of India. See 8 C.F.R. § 1208.13(b)(3)(ii).
Thus, the only question on appeal is whether substantial evidence supports the
agency’s conclusion that the government has met its burden. See Rayamajhi v.
Whitaker, 912 F.3d 1241, 1243 (9th Cir. 2019). Unlike my colleagues, on review
of the record before us, I do not find such substantial evidence supporting the
agency’s conclusion. Therefore, I must respectfully dissent.
My colleagues’ deference to the agency conclusion that Singh can safely
relocate rests in large part on the substantial evidence standard of review. (Op. at
2-4.) Although I agree that this standard is highly deferential, I cannot agree that
the agency conclusion in this case is supported by a reasonable interpretation of the
record. See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (substantial evidence
standard requires affirming only agency conclusions that are “supported by
reasonable, substantial, and probative evidence on the record considered as a
whole” (quotation omitted)). To the contrary, the evidence before us does not take
1
into account all of Singh’s individual circumstances. My reading of the record
compels a finding that the government has not met its burden to show the
feasibility of safe relocation. See id. at 481 n.1; Ali v. Holder, 637 F.3d 1025,
1028-29 (9th Cir. 2011).
The agency theory of safe relocation was predicated on two pieces of
evidence: (1) a 2018 Library of Congress report (“the report”); and (2) Singh’s
brief tenure in India following his arrest. As outlined below, neither piece of
evidence demonstrates that Singh can safely relocate. The government has
therefore failed to meet its burden to show that safe relocation is more likely than
not.
I
I begin first with the report. As a threshold matter, Library of Congress
reports are insufficient on their own to rebut a presumption of future persecution
without a specific, individualized application to a particular petitioner. Kamalyan
v. Holder, 620 F.3d 1054, 1057 (9th Cir. 2010). Substantively, the report neither
establishes the feasibility of safe internal relocation nor addresses Singh’s specific
situation. The immigration judge read the report as demonstrating the feasibility of
internal relocation for Sikhs and supporters of Singh’s political party so long as
they are not militants and do not have extensive criminal records. However, the
report is equivocal at best on this point. For example, it emphasizes that most of
2
its underlying sources “do not specifically address the situation of how members of
[Singh’s political party] who relocate in fear of persecution are treated.” The
report goes on to cite two studies from immigration authorities in the United
Kingdom concluding in part that “[for Sikhs] fearing ill-treatment/persecution by
the state authorities relocation to a different area of the country to escape this threat
is not feasible.” Indeed, while the report suggests that non-militants and
individuals without extensive criminal histories are rarely targeted by Punjab
police throughout India, it also cautions that “Punjab police at times wrongly place
individuals involved in ordinary political activities on chronic offender lists” that
subject targets to detention and persecution throughout India. Because the agency
failed to address these caveats in light of Singh’s specific circumstances, I do not
agree that the report provides substantial evidence supporting the possibility of safe
relocation.
Moreover, the report does not neatly capture Singh’s particular situation.
For one, Singh was arrested after giving a speech that was highly critical of local
police and supportive of his political party. The report says nothing about the
prospect of safe relocation for vocal critics of local police. Notably, Singh testified
that Punjab police have inquired with his family about his whereabouts as recently
as 2018, nearly ten years after his original arrest, indicating that he may be a
priority target. In addition, the report is largely silent regarding Singh’s evidence
3
that local police often share data with other provincial authorities and the central
Indian government. The agency dismissed these concerns because the report
suggests that Punjab police would require a court order to track and detain Singh in
a different state. But the agency did not assess the likelihood that Punjab police
could seek or obtain such an order. Rather, it relied on the report’s principal
finding that supporters of Singh’s party are rarely targeted throughout India unless
they are militants or have a criminal history. But the report’s evidence for that
proposition pre-dates Singh’s evidence about data sharing between local police
departments. The report is silent with respect to tenant registration and other
specific methods of data sharing that Singh alleges. Even if the report did address
these concerns, the agency ignores evidence that Punjab police have been known to
erroneously label individuals as high-value targets. For these reasons, the report
does not support the agency’s individualized assessment of Singh’s circumstances.
Id.II
Second, the agency relied on Singh’s brief tenure in two other Indian states
to conclude that he can safely relocate. Shortly after his arrest and beating in
Punjab, Singh fled the state and spent approximately fifteen to twenty days hiding
in the neighboring state of Haryana. He then left the country, spending
approximately ten to fifteen hours in the state of Delhi to travel through a major
4
airport. I fail to see how such short periods of time, much of which Singh testified
he spent in hiding, can support an inference of safe, permanent relocation.
III
Because neither piece of evidence cited by the agency supports the
conclusion that Singh could safely relocate within India, I am compelled to find
that the government has not met its burden to establish that safe relocation is more
likely than not. I would grant Singh’s petition and remand to the agency.
5