Sinha v. Holder ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NAVIN SINHA; PRITI PRAVEENA 
SINGH, Nos. 04-73843
Petitioners, 07-72289
v. Agency Nos.
ERIC H. HOLDER, JR., Attorney  A079-286-957
General, A079-286-958
Respondent. ORDER AND
AMENDED
 OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 11, 2008—San Francisco, California
Filed February 10, 2009
Amended April 21, 2009
Before: A. Wallace Tashima, Marsha S. Berzon and
N. Randy Smith, Circuit Judges.
Opinion by Judge Berzon
4565
4568 SINHA v. HOLDER
COUNSEL
Joseph J. Siguenza, Esq., Attorney (argued), and Ashwani K.
Bhakhri, Esq., Attorney (briefed), Law Offices of Ashwani K.
Bhakhri, Burlingame, California, for the petitioners.
W. Daniel Shieh, Esq., Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Wash-
ington, DC (argued and briefed); Margot Nadel, Esq., Attor-
ney, Office of Immigration Litigation, Civil Division, U.S.
Department of Justice, Washington, DC, Terri J. Scadron,
Assistant Director, Office of Immigration Litigation, Civil
Division, U.S. Department of Justice, Washington, DC, Fran-
cis W. Fraser, Senior Litigation Counsel, Office of Immigra-
tion Litigation, Civil Division, U.S. Department of Justice,
Washington, DC, Gregory G. Katsas, Assistant Attorney Gen-
eral, Civil Division, U.S. Department of Justice, Washington,
DC, and Peter D. Keisler, Assistant Attorney General, Civil
Division, U.S. Department of Justice, Washington, DC, were
on the briefs, for the respondent.
ORDER
The opinion filed on February 10, 2009, is hereby
amended. With the filing of the amended opinion, the panel
has voted to grant Respondent’s motion to amend in part. The
time for filing petitions for rehearing has now expired. The
mandate in No. 04-73843 shall issue forthwith. The panel
retains jurisdiction over No. 07-72289.
SINHA v. HOLDER 4569
OPINION
BERZON, Circuit Judge:
Petitioner Navin Sinha and his wife, Petitioner Priti Prav-
eena Singh, are ethnic Indians and citizens of Fiji. In 2001,
Sinha submitted an application for asylum, withholding of
removal, and relief under the Convention Against Torture
(CAT) for himself and, derivatively, his wife Singh.1 The
Immigration Judge (IJ) denied all relief, and the Board of
Immigration Appeals (BIA) adopted and affirmed that deci-
sion. Petitioners appear before this Court to challenge the
BIA’s dismissal of their appeal, and also to contest the BIA’s
denial of their subsequently-filed motion to reopen, based on
changed country conditions. We grant the petition for review
on the removal order and order the motion to reopen held in
abeyance.
I. BACKGROUND
Sinha’s claims for asylum and for withholding of removal
are based upon his alleged past persecution and his fear of
future persecution on account of his ethnicity as an Indo-Fijian.2
He also seeks relief under the CAT because he fears being
tortured if he is returned to Fiji.
1
Priti Praveena Singh did not file a separate asylum application on her
own behalf. Her eligibility for relief is based upon Sinha’s claim. See 8
U.S.C. § 1158(b)(3)(A).
2
Sinha also alleged in his asylum application that he has a well-founded
fear based on his religion (as a practicing Christian) and his political opin-
ion. Petitioners’ opening brief, however, refers only to “race/ethnicity”
and “religion” as the protected grounds on which Sinha’s claim is based.
As the opening brief never mentions “political opinion,” we consider that
claim waived. See Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir. 1996). Fur-
ther, the record contains no evidence suggesting that petitioners’ past
experiences or future fear bears any relationship to their religion. We
therefore uphold as supported by substantial evidence the IJ’s determina-
tion that Sinha had failed to establish eligibility for asylum on account of
his religion.
4570 SINHA v. HOLDER
As Sinha’s testimony and country-conditions evidence
show, over the past twenty years Fiji’s ethnic Indian minority
has been treated harshly and, at times, violently by the native
Fijian majority. There has been longstanding tension between
the two groups, exacerbated by an uneven distribution of
power and wealth. The ethnic Indian minority (whom we call
“Indo-Fijians”) have controlled most of the country’s private
businesses, while the native Fijian majority (whom we call
“native Fijians”) have maintained a monopoly on land-
ownership and have largely controlled the military and the
national government. In 1987 and again in 2000, racial ten-
sions culminated in coups in which ethnic Fijians, backed by
the military, ousted sitting Indo-Fijian-dominated govern-
ments and took power. Both coups occasioned widespread
popular violence against individuals of Indo-Fijian ethnicity.
We have recognized the “severe mistreatment [Indo-Fijians]
have suffered” in a number of previous cases. See Gafoor v.
INS, 231 F.3d 645, 647 (9th Cir. 2000); see also Narayan v.
Ashcroft, 384 F.3d 1065, 1066 n.2 (9th Cir. 2004); Singh v.
INS, 94 F.3d 1353, 1356-57 (9th Cir. 1996).
Sinha testified to four separate incidents of mistreatment
that he personally experienced, which he claims cumulatively
constitute past persecution or, in the alternative, contribute to
his showing of a well-founded fear of future persecution.
First, in 1990, when Sinha was seventeen years old, a group
of native Fijians approached him and his friend after soccer
practice. The native Fijians accused Sinha and his friend of
cursing at them and proceeded to beat them, causing Sinha’s
face to bleed and giving him a black eye.
Second, in May 2000 — just after the coup in which native-
Fijian supremacist George Speight deposed the country’s first
Indo-Fijian prime minister and attempted to take power him-
self — petitioners’ apartment was stoned by a native Fijian
mob. The mob also destroyed petitioners’ car, smashing all
the windows, ripping the seats, stealing the stereo, and van-
SINHA v. HOLDER 4571
dalizing the dashboard with a knife. Sinha testified that the
apartments of other Indo-Fijian residents on his block were
also stoned.
Third, at 3:00 one morning in June 2000, two native Fijians
broke into petitioners’ apartment while they were sleeping.
One of the burglars held a knife to Sinha’s throat and
restrained his wife, while the other went through their draw-
ers, ultimately stealing $2,300 in cash and jewelry. As the
burglars left the apartment, they shouted that petitioners
should “go[ ] back to India.” Although Sinha reported the
incident to the police, the police officers with whom he spoke
told him “that nothing was going to be done because it was
just a formality to take a report.” The police officers, native
Fijians, also told Sinha that he and Singh “were not supposed
to be in Fiji anyway and that [they] had no legal rights.” Later
on, when Sinha went to the police station to follow up on the
matter, an officer told him that the station had lost the report.
Fourth and finally, in September 2000, Sinha was attacked
and robbed by three native Fijian men as he was walking
toward a bus stop, having just left the bank where he cashed
his paycheck. During the attack, the native Fijians called
Sinha an “Indian dog” and berated him with the slogan, “Fiji
is for Fijians only.” Sinha sustained injuries on his face and
back from the beating, and he required medical care as a
result. Sinha reported the incident to the police, but, as far as
he is aware, no investigation was ever conducted.
Sinha also testified that, in addition to the incidents he per-
sonally experienced, his wife and several other family mem-
bers and Indo-Fijian friends have been attacked and harassed
by native Fijians. In particular, in August 2000, Sinha’s wife,
Singh, was confronted by five native Fijian youths who were
members of a gang called the “shoe-shine boys.” According
to Sinha’s testimony, the shoe-shine boys formed their gang
after the May 2000 coup, and their goal was to “shine” Fiji
by ridding it of its Indian minority population. The youths
4572 SINHA v. HOLDER
yelled racial slurs at Singh and chased her down the street as
she was leaving the local grocery store. Additionally, Sinha
testified that his mother and uncles have been forced out of
their leaseholds by native landowners.
In October 2000, petitioners were admitted to the United
States on tourist visas. Before the expiration of those visas,
Sinha submitted an application for asylum, withholding of
removal, and relief under the CAT, seeking derivative relief
for his wife. On June 25, 2001, Sinha and Singh were served
with a Notice to Appear, and removal proceedings com-
menced. At their merits hearing on June 10, 2003, the IJ made
no adverse credibility finding, but determined that Sinha’s
account of his experiences in Fiji did not demonstrate past
persecution or support a well-founded fear of future persecu-
tion. The IJ therefore denied Sinha’s application for asylum
and withholding of removal. The IJ also denied relief under
the CAT. On appeal, the BIA adopted and affirmed the IJ’s
decision. Petitioners timely filed a petition for review with
this Court (No. 04-73843).
While that petition for review was pending, in December
2006, Fiji experienced yet another coup. In January 2007,
petitioners filed a motion to reopen with the BIA, contending
that the coup and resulting political instability in Fiji repre-
sented a material change in country conditions sufficient to
merit reopening their removal proceedings under 8 C.F.R.
§ 1003.2(c)(3)(ii). The BIA denied the motion to reopen. Peti-
tioners filed a timely petition for review of that decision with
this Court (No. 07-72289), which we consolidated with their
pending petition for review.
II. ANALYSIS
A. Asylum and withholding of removal
We consider first whether the IJ and BIA erred in determin-
ing that Sinha was ineligible for asylum and withholding of
SINHA v. HOLDER 4573
removal. Because the BIA “adopt[ed] and affirm[ed]” the IJ’s
decision without adding any commentary of its own, we treat
the IJ’s decision as that of the BIA. See Molina-Estrada v.
INS, 293 F.3d 1089, 1093 (9th Cir. 2002). In reviewing the
IJ’s findings of fact underlying his decision that Sinha did not
establish past persecution, we apply the substantial evidence
standard. See Hoque v. Ashcroft, 367 F.3d 1190, 1194 (9th
Cir. 2004). Throughout, because the IJ made no adverse credi-
bility finding, we take Sinha’s testimony as true. See Vuk-
mirovic v. Ashcroft, 362 F.3d 1247, 1251 (9th Cir. 2004).
The Ninth Circuit has defined persecution as “the infliction
of suffering or harm upon those who differ (in race, religion
or political opinion) in a way regarded as offensive.” Fisher
v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc) (internal
quotation marks and citation omitted). Persecution is an “ex-
treme concept [and] does not include every sort of treatment
our society regards as offensive.” Ghaly v. INS, 58 F.3d 1425,
1431 (9th Cir. 1995) (internal quotation marks and citation
omitted). To establish past persecution, “an applicant must
show: (1) an incident, or incidents, that rise to the level of per-
secution; (2) that is ‘on account of’ one of the statutorily-
protected grounds; and (3) is committed by the government or
forces the government is either ‘unable or unwilling’ to con-
trol.” Navas v. INS, 217 F.3d 646, 655-56 (9th Cir. 2000).
Here, the IJ held that Sinha failed to demonstrate that the
harm he suffered between May and September 2000 was
“persecution” within the meaning of the Immigration and
Nationality Act (INA). He gave one reason for that conclu-
sion: In what we will call the “nexus” finding, the IJ found
that Sinha failed to show that the harm was “on account of”
his race. The IJ made no finding as to whether the government
was “unable or unwilling” to control Sinha’s attackers (what
we will call a “government inability” finding), or as to the
severity of the harm Sinha suffered (what we will call a “se-
verity” finding), presumably because the nexus finding alone,
4574 SINHA v. HOLDER
if proper, would be adequate to support the IJ’s ultimate con-
clusion that Sinha had not demonstrated eligibility for asylum.
Petitioners submit that the IJ’s nexus finding is unsupported
by substantial evidence. We agree. The record compels the
conclusion that the past harm Sinha suffered was “on account
of” his race. Because the IJ based his denial of asylum on an
erroneous finding, and because he made no specific finding as
to the government’s inability to control the attackers or the
severity of the harm Sinha suffered, the denial of asylum can-
not stand, but must be reconsidered by the agency on remand.
1. The IJ’s nexus finding
The IJ held that “in terms of what happened to this respon-
dent, and the circumstances under which it happened, this
Court is far from convinced that it happened necessarily
because of his race, religion, nationality, or ethnic group.”
Rather, the IJ concluded, the separate incidents about which
Sinha testified — the four concerning him and the one con-
cerning his wife — were better characterized as manifesta-
tions of “random violence.” In the IJ’s view, “[w]hat this
respondent describes are general incidents of criminality and
random violence and lawlessness which occurred during and
after the coup of 2000 . . . . [C]onditions of political upheaval
which affect the populus as a whole are insufficient to estab-
lish an alien’s eligibility for asylum.”
[1] The IJ’s characterization of the record is unsupported
by substantial evidence. The violence about which Sinha testi-
fied did not affect the “populus as a whole.” Rather, individu-
als of Indo-Fijian ethnicity were the specific targets of the
widespread violence. The IJ acknowledged as much in the
very next sentence of his decision after the one just quoted,
stating, “In this particular case, the specific segment of the
population affected, for the most[ ] part[,] is the Indo-Fijian
population of Fiji.”
SINHA v. HOLDER 4575
[2] Sinha’s testimony presented specific evidence that his
and his wife’s attackers had racially discriminatory motives
— evidence that the IJ mentioned in the fact section of his
decision but ignored in his analysis. In all five of the specific
incidents about which Sinha testified, petitioners were
attacked by ethnic Fijians. Of course, this fact does not in
itself demonstrate that the attackers’ actions were racially
motivated, but it does provide some circumstantial evidence
of their motivation, particularly given the high level of racial
tension during and after the coup of May 2000, when most of
these incidents occurred. See INS v. Elias-Zacarias, 502 U.S.
478, 483 (1992) (stating that petitioner must produce “some
evidence[,] . . . direct or circumstantial[,]” of his persecutor’s
motive) (second emphasis added). Sinha testified that the
stoning of his home and the destruction of his car in May
2000 occurred in the context of widespread looting and vio-
lence targeted at Indo-Fijians. He also stated that “there were
a lot of Indo-Fijians living in those blocks, and not only I[,]
but all of us were the victim[s] of the stoning.” The country-
conditions evidence he submitted confirms that such attacks
on Indo-Fijians did occur during this time.
[3] Further, during the nighttime burglary that occurred in
June 2000, Sinha testified that “[t]he native Fijian[ ] [bur-
glars] . . . shouted on the[ir] way [out of the apartment] . . .
about us going back to India.” We have held before that the
use of ethnic slurs in the course of an attack “amply estab-
lishes the connection between the acts of persecution and [the
petitioner’s] ethnicity.” Baballah v. Ashcroft, 367 F.3d 1067,
1077 (9th Cir. 2003). The fact that the attackers were also evi-
dently motivated by a desire to steal petitioners’ money and
valuables does not undercut the role that racial animus played
in their motivation. Persecutors can have multiple motives. In
a pre-REAL ID case such as this one, so long as the petitioner
shows that his attackers “[were] motivated, at least in part, by
a[ ] . . . protected ground,” that is sufficient to establish that
the action was “on account of” a protected ground within the
meaning of 8 U.S.C. § 1101(a)(42)(A). Borja v. INS, 175 F.3d
4576 SINHA v. HOLDER
732, 736 (9th Cir. 1999) (en banc) (internal quotation marks
and citation omitted); see also Gafoor, 231 F.3d at 654.3
Sinha’s testimony amply establishes that the burglars’ motiva-
tion was, “at least in part,” racial animus.
Moreover, we have held that where members of an ethnic
majority view an ethnic minority as “economically powerful,”
and where that perceived economic inequality serves as a
“justification” for acts of hatred or violence against the minor-
ity, their acts may be cognizable as persecution “on account
of” race under the INA. Sael v. Ashcroft, 386 F.3d 922, 926
(9th Cir. 2004). Here, the record shows that Indo-Fijians are
popularly believed to be better educated, more successful in
business, and wealthier than ethnic Fijians. That Sinha’s eth-
nic Fijian burglars may have targeted him in part because they
believed he, as an Indo-Fijian, would likely have valuables to
steal, does not mean that they did not single him out “on
account of” his race. The burglars’ use of ethnic slurs demon-
strates that they did.
[4] As to the incident in September 2000, when several
Fijian men attacked Sinha as he was walking from the bank
to a bus stop, Sinha testified that his attackers used “racial
slurs” while beating him: “They said something like you
Indian dog, what are you doing here, you should go back, you
should go back to India. And Fiji is for Fijians only.” Again,
the IJ neglected to address the significance of these slurs in
his nexus analysis. A reasonable decisionmaker would have
concluded, in light of Sinha’s attackers’ abusive language,
that they were motivated at least in part by racial animus.
3
The “at least in part” standard of Borja and Gafoor has been super-
seded by the REAL ID Act, Pub. L. No. 109-13, div. B, § 101(h)(2), 119
Stat. 231, 305 (2005), which now requires that an asylum applicant show
that a protected characteristic was “one central reason” for his persecution.
See Parussimova v. Mukasey, 533 F.3d 1128, 1134 (9th Cir. 2008).
Because Sinha filed his asylum application before May 11, 2005, how-
ever, we apply the pre-REAL ID standard, without deciding whether the
result would be different under the REAL ID Act standard.
SINHA v. HOLDER 4577
In addition, as to the incident in August 2000 when a gang
of youths chased Singh from a grocery store, Sinha testified
that the gang called themselves the “shoe-shine boys” not
only because they did shine shoes, but also because “it was a
racial slogan just like shining the shoes, they will do it, they
would shine Fiji without the Indians.” He further testified that
the group “emerged mostly after May 2000, and they create
havoc in the cities.” The IJ ignored this evidence of racial
motivation in his oral decision. Instead, he flippantly pro-
fessed confusion about why the gang was so called: “As to
precisely what this gang consisted of, it is difficult to deter-
mine, except that the gang was composed, for the most part,
of ethnic Fijians and they were in fact shoe-shine boys.” Con-
trary to the IJ’s mischaracterization of Sinha’s testimony,
there was substantial evidence that Sinha’s closest family
member, his wife, was targeted for mistreatment on ethnic
grounds.
[5] We have held that, in certain cases, harm to a petition-
er’s close family members or associates may be relevant to
assessing whether the petitioner suffered past persecution. See
Mashiri v. Ashcroft, 383 F.3d 1112, 1121 (9th Cir. 2004);
Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998). We
have also held that a petitioner’s fear of future persecution “is
weakened, even undercut, when similarly-situated family
members” living in the petitioner’s home country are not
harmed. Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001).
Just as these rulings recognize that the circumstance of close
relatives can be informative in determining whether an indi-
vidual suffered past, or will suffer future, persecution, so it
stands to reason that the circumstance that Sinha’s similarly-
situated wife — like him, an ethnic Indian — was harassed on
account of her race bolsters Sinha’s argument that the attacks
directed at him during the same time period were similarly
motivated by anti-Indian sentiment.
[6] In sum, in light of all the evidence, the IJ’s conclusion
that the incidents about which Sinha testified were merely
4578 SINHA v. HOLDER
acts of random violence is unsupportable. What the IJ
described is not random violence, but violence with a distinct
racial slant. While it is true that the existence of widespread
civil unrest, even unrest with a racial element to it, is not by
itself enough for a petitioner to meet the definition of a refu-
gee, see Lolong v. Gonzales, 484 F.3d 1173, 1179-80 (9th Cir.
2007) (en banc), it is also true that the existence of civil unrest
does not undercut an individual’s claim of persecution based
on incidents specific to him. See Ndom v. Ashcroft, 384 F.3d
743, 752 (9th Cir. 2004). To suggest, as the IJ did, that the
violence directed against one individual is somehow less “on
account of” his race because many other individuals of his
ethnic group are also being targeted on account of their race
is entirely illogical and has no support in the case law. We
therefore hold that substantial evidence does not support the
IJ’s conclusion with respect to the nexus finding.
2. The IJ’s failure to make a government inability
finding
Turning to the second requirement for asylum — whether
Sinha had demonstrated that the Fijian government was “un-
willing or unable” to control his attackers — the IJ engaged
in a brief and ultimately inconclusive discussion:
[T]he [Immigration] Court is not satisfied in this par-
ticular case that the government in power does not
make an attempt to control such incidents, nor under
the circumstances are they unable to control the inci-
dents with the possible exception of the incident
which got totally out of control in May of 2000.
Eventually, the military did have to step in and
establish order. But in this particular case, I am not
satisfied that the respondent has established that he
has been persecuted on account of any one or more
of the five . . . [protected grounds].
SINHA v. HOLDER 4579
This passage is not a model of coherent reasoning, to be
sure. Perhaps we could read it as articulating a finding that
Sinha failed to show the Fijian government was “unwilling or
unable” to control his attackers. Avetovo-Elisseva v. INS, 213
F.3d 1192, 1198 (9th Cir. 2000). If that is what the IJ meant
to say, he provided no discernible reason for reaching such a
conclusion, despite his recognition that events in Fiji “got
totally out of control in May of 2000” — the first month in
which Sinha’s major incidents of mistreatment occurred. Nor
did the IJ account for Sinha’s testimony about his negative
interactions with the Fijian police, or the relevant country-
conditions evidence concerning the government’s general fail-
ure to control the attacks on Indo-Fijians that occurred in and
shortly after May of 2000, and its slow response to complaints
by injured parties. See Krotova v. Gonzales, 416 F.3d 1080,
1087 (9th Cir. 2005).4
[7] But we think the better reading of this passage is that
the IJ simply declined to decide whether Sinha had shown that
the Fijian government was unwilling or unable to control his
attackers. Because he had already found that Sinha failed to
establish that the harm he suffered was “on account of” his
race or any other protected ground, the IJ considered it unnec-
essary to reach a government inability finding, and rested his
denial of asylum on the nexus finding alone. For the reasons
we explained above, that nexus finding cannot stand, as it is
unsupported by substantial evidence. We therefore remand to
the agency for a finding as to whether the Fijian government
was willing and able to control Sinha’s attackers.
3. The IJ’s failure to make a severity finding
[8] The third and final element needed to establish past per-
4
In discussing the bus-stop incident, the IJ did note that Sinha failed to
report what happened to him “to the hospital” where he received medical
care for his injuries. But that is a fact of marginal relevance, if any, to
determining whether the government was able and willing to protect him.
4580 SINHA v. HOLDER
secution is severity — that is, a petitioner must show that the
harm he suffered rose to a level of offensiveness “ ‘extreme’ ”
enough to be deemed persecution. Ghaly, 58 F.3d at 1431(citation omitted). Here, too, the IJ’s opinion is difficult to
follow. But it appears that the IJ declined to make a finding
as to whether the incidents of violence and harassment to
which Sinha testified were sufficiently severe to amount to
persecution. Rather, the IJ mentioned the severity prong, but
subsumed his discussion of that prong in the discussion of the
nexus prong. Ultimately, he found that Sinha was not harmed
on account of his race, without separately reaching a conclu-
sion as to severity.
[9] Even were we to read the IJ’s decision charitably and
assume that he did mean to make an independent finding that
the attacks on Sinha were not sufficiently severe to meet the
definition of persecution, we could only conclude that any
such finding rested on an erroneous legal standard — namely,
that discriminatory acts cannot be persecution if they are
widespread. The IJ suggested as much when he stated that
“[t]he Board has indicated unequivocally that [the] hazards of
personal injury which arise as a result of conflict between
majority and minority ethnic groups is not persecution.”
This understanding of the BIA’s precedent is wrong. None
of the cases cited by the IJ indicates that the circumstance of
widespread ethnic conflict renders the harm an individual
applicant suffers somehow less “severe” than it would other-
wise be, and thus insufficiently severe to constitute persecution.5
5
In each of the cases the IJ cited, the alien’s asylum claim was rejected
for some reason other than the existence of widespread strife — e.g.,
because the alien failed to make the required nexus showing, because the
record did not show the government’s inability or unwillingness to control
the violence, or because the alien personally had not suffered sufficiently
severe harm. See Matter of Tan, 12 I. & N. Dec. 564, 567 (BIA 1967)
(rejecting alien’s claim for withholding of removal because, in light of the
facts “that he never experienced persecution prior to his departure from
SINHA v. HOLDER 4581
Moreover, this Court has definitively held, more than once,
that individual persecution can occur in the context of wide-
spread ethnic violence. See Ndom, 384 F.3d at 752 (“True, the
existence of civil war or civil strife in an applicant’s country
of origin, by itself, does not establish eligibility for asylum.
At the same time, the existence of civil strife does not alter
our normal approach to determining refugee status or make a
particular asylum claim less compelling.”) (internal citations
omitted); Baballah, 367 F.3d at 1077 (“The IJ’s suggestion
that the threats and attacks experienced by Baballah and his
family cannot be considered persecution because of generally
dangerous conditions is at odds with our case law.”). Just as
the fact of widespread ethnic violence does not make it harder
for an alien to prove a nexus to a protected ground, see Ndom,
384 F.3d at 752, it also does not make it harder for the alien
to establish the requisite degree of severity. Baballah, 367
F.3d at 1077.
Indonesia” and that the Indonesian police had protected his family’s prop-
erty from mob violence in the past, he had not shown a sufficient likeli-
hood that he would be victimized by ethnically-motivated mob violence
in the future); Matter of V-T-S-, 21 I. & N. Dec. 792, 798-99 (BIA 1997)
(“Kidnapping is a very serious offense. Seriousness of conduct, however,
is not dispositive in our analysis [of whether the nexus requirement is sat-
isfied]. Instead, the critical issue is whether . . . the motivation for the con-
duct was to persecute the asylum applicant on account of [a protected
ground] . . . . [Here, m]oney was . . . one of the reasons for the kidnapping,
and the evidence does not suggest that other motivations existed.”); Ghaly,
58 F.3d at 1431 (holding that “where private discrimination is neither con-
doned by the state nor the prevailing social norm, it clearly does not
amount to ‘persecution’ within the meaning of the Act.”); Prasad v. INS,
47 F.3d 336, 340 (9th Cir. 1995) (holding that general evidence of “poor
conditions for, and discrimination against, ethnic Indians” was not suffi-
cient to make out an asylum claim, because “[p]articularized individual
persecution, not merely conditions of discrimination in the country of ori-
gin, must be shown before asylum will be granted”); Shoaee v. INS, 704
F.2d 1079, 1084 (9th Cir. 1983) (“Shoaee has put forward no concrete evi-
dence to support his contention that he might be persecuted because of his
opinions and American associations were he to return to Iran. He has only
established that it is likely his family’s political fortunes have declined.”).
4582 SINHA v. HOLDER
[10] Our holding in Singh v. INS, 134 F.3d 962 (9th Cir.
1998), is not to the contrary. In Singh, we held that the ston-
ing of an Indo-Fijian petitioner’s home and repeated acts of
vandalism on her property, during which the petitioner herself
was never physically injured or even credibly threatened with
injury, were “not so extreme that [they cumulatively] consti-
tute[ ] persecution.” Id. at 967. Singh explained that
Petitioner must establish that the mistreatment she
suffered was . . . substantially more grievous in kind
or degree than the general manifestation of hostility
between the competing ethnic and religious groups
in Fiji. Mere generalized lawlessness and violence
between diverse populations, of the sort which
abounds in numerous countries and inflicts misery
upon millions of innocent people daily around the
world, generally is not sufficient to permit the Attor-
ney General to grant asylum to everyone who wishes
to improve his or her life by moving to the United
States without an immigration visa.
Id. We do not read this passage to suggest, contrary to our
other case law, that an alien who experiences harm that would
otherwise rise to the level of persecution must show more or
qualitatively worse harm — or, in other words, faces a higher
“severity” bar — purely because that harm occurred against
a background of generalized ethnic strife. Rather, our under-
standing of Singh’s holding is that a background of general-
ized lawlessness is not by itself sufficient to provide any
individual petitioner with a successful asylum claim. Singh
required the petitioner to show what we called “substantially
more grievous [mistreatment] . . . than the general manifesta-
tion of hostility,” not because the existence of a general cli-
mate of hostility somehow made the petitioner’s burden of
proof heavier than it otherwise would be, but because that
general climate of hostility was not itself enough to establish
that Singh had suffered past persecution. Singh, 134 F.3d at
967.
SINHA v. HOLDER 4583
[11] In sum, to the degree the IJ suggested that the fact that
Indo-Fijians are frequently the victims of harassment, mis-
treatment, and worse undercuts the severity of the individual-
ized harm suffered by this particular Indo-Fijian applicant, he
erred. But, as it is not clear that the IJ in the end made any
severity finding, we decline to make any such determination
ourselves. See INS v. Ventura, 537 U.S. 12, 16-17 (2002).
Rather, we leave for the agency to decide in the first instance
whether the harm that petitioners suffered rose to the level of
persecution.6
B. CAT relief
Petitioners also challenge the BIA’s determination that they
are ineligible for relief under the CAT. Reviewing the BIA’s
determination for substantial evidence, see Zheng v. Ashcroft,
332 F.3d 1186, 1194 (9th Cir. 2003), we deny the petition for
review on this issue.
[12] The BIA held that petitioners had failed to demon-
strate that it was “more likely than not” that public officials
would torture them, or consent to or acquiesce in their torture
by non-governmental actors, if they were returned to Fiji. 8
C.F.R. § 1208.16(c)(2). The record does not contain evidence
that would “compel[ ]” a reasonable factfinder to reach a con-
trary conclusion. Elias-Zacarias, 502 U.S. at 481 n.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 per-
son for such purposes as obtaining from him or her
or a third person information or a confession, pun-
6
We also leave for the agency to decide on remand Sinha’s claim that
he is eligible for withholding of removal under 8 U.S.C. § 1231(b)(3), as
eligibility for withholding of removal is based upon the same consider-
ations as the request for asylum, although the requisite standard of proof
differs. See 8 C.F.R. § 208.16(b)(1)(iii).
4584 SINHA v. HOLDER
ishing him or her for an act he or she or a third per-
son has committed or is suspected of having
committed, or intimidating or coercing him or her or
a third person, or for any reason based on discrimi-
nation of any kind.
8 C.F.R. § 1208.18(a)(1); see also Kamalthas v. INS, 251 F.3d
1279, 1282 (9th Cir. 2001). Petitioners do not claim that they
have ever been subjected to treatment meeting this standard
in the past, and they have failed to present evidence that they
would be tortured in the future.
III. CONCLUSION
The record compels the conclusion that, contrary to the IJ’s
decision, the harm Sinha suffered was “on account of” his
race. We remand to the agency to make a finding with respect
to the second and third prongs of a past persecution analysis,
government inability and severity. If the government was
indeed unwilling and/or unable to control Sinha’s attackers,
and if the harm he suffered is sufficiently severe, he will have
established past persecution and will be entitled to a rebutta-
ble presumption that his fear of future persecution is well-
founded. See 8 C.F.R. § 1208.13(b)(1)(i). Even if the agency
determines that the harm Sinha suffered in the past cumula-
tively does not rise to the level of past persecution, it will be
relevant to his ability to show a well-founded fear of future
persecution if he is removed to Fiji under the “disfavored
group” approach. See Wakkary v. Holder, Slip Op. 05-71539,
2009 WL 595579, *10-11 (9th Cir. Mar. 10, 2009); Sael, 386
F.3d at 925.
Because we grant the petition for review of the BIA’s affir-
mance of the IJ’s decision denying asylum, it may not be nec-
essary for us to decide whether the BIA erred in denying
petitioners’ subsequent motion to reopen based on changed
circumstances. We therefore vacate submission of case No.
07-72289 pending further order of the court, and hold it in
SINHA v. HOLDER 4585
abeyance pending the BIA’s ruling on remand. The parties are
directed to notify the court immediately after the BIA’s deci-
sion on remand.
No. 07-72289: SUBMISSION VACATED.
No. 04-73843: PETITION FOR REVIEW DENIED in
part; GRANTED in part; REMANDED.