Jagtar Singh v. Eric Holder, Jr. , 753 F.3d 826 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAGTAR SINGH, No. 10-71999
Petitioner,
Agency No.
v. A077-843-923
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 16, 2014*
San Francisco, California
Filed May 21, 2014
Before: J. Clifford Wallace and Jay S. Bybee, Circuit
Judges, and Robert W. Gettleman, Senior District Judge.**
Opinion by Judge Bybee;
Dissent by Judge Gettleman
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Robert W. Gettleman, Senior District Judge for the
U.S. District Court for the Northern District of Illinois, sitting by
designation.
2 SINGH V. HOLDER
SUMMARY***
Immigration
The panel denied a petition for review of the Board of
Immigration Appeals’ denial of withholding of removal.
The panel held that substantial evidence supported the
Board’s determination that the government had carried its
burden to show by a preponderance of the evidence that there
had been a fundamental change in circumstances with respect
to the treatment of Sikhs and supporters of Khalistan in India
so as to overcome the presumption that petitioner would be
persecuted if he were removed. The panel explained that the
agency properly conducted an individualized analysis of the
changed country conditions as they related to petitioner’s
claims. The panel further explained that the agency is
permitted to consider the relative probative value of hearsay
and non-hearsay evidence, and in this case, the agency
appropriately weighed the country reports against petitioner’s
testimony and the affidavits submitted by family members
and a village sarpanch stating that Indian police continue to
search for him.
Dissenting, District Judge Gettleman would grant the
petition because the agency failed to conduct an
individualized analysis of changed conditions, specifically as
they relate to an individual such as petitioner who was
persecuted by police in the past; the agency incorrectly
shifted the burden of proof to petitioner rather than the
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SINGH V. HOLDER 3
government; and substantial evidence did not support the
finding of changed country conditions.
COUNSEL
Inna Lipkin (argued), Law Office of Inna Lipkin, Redwood
City, California, for Petitioner.
Tony West, Assistant Attorney General, Douglas E.
Ginsburg, Assistant Director, Katherine A. Smith (argued),
Trial Attorney, Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C., for Respondent.
OPINION
BYBEE, Circuit Judge:
Jagtar Singh, a native and citizen of India, petitions for
review of a Board of Immigration Appeals (BIA) order
concluding that he is ineligible for withholding of removal.
The sole question before us is whether substantial evidence
supports the BIA’s determination that the government
showed that there has been a fundamental change in
circumstances such that Singh’s life or freedom will not be
threatened on account of his race, religion, nationality,
membership in a particular social group, or political opinion
if he is removed to India. Because substantial evidence
supports the BIA’s decision, we deny the petition for review.
4 SINGH V. HOLDER
I
We begin by reciting the facts offered by Singh during his
testimony before the Immigration Judge (IJ) and in his
supporting declarations. Although the IJ determined that
Singh’s testimony was not credible, the Board did not
expressly adopt that finding in its order dismissing Singh’s
appeal. “When the BIA’s decision is silent on the issue of
credibility, despite an IJ’s explicit adverse credibility finding,
we may presume that the BIA found the petitioner to be
credible.” Krotova v. Gonzales, 416 F.3d 1080, 1084 (9th
Cir. 2005) (citations omitted). Accordingly, we refrain from
adopting the IJ’s adverse credibility finding.
On August 18, 1999, Singh entered the United States
without inspection. The Immigration and Naturalization
Service (INS) served him with a notice to appear. Singh
conceded that he was subject to removal and applied for
asylum, withholding of removal, and relief under the
Convention Against Torture (CAT). The IJ held a merits
hearing on September 9, 2003.
Singh is a Sikh who was born in India’s Punjab province.
In March 1993, he joined the Akali Dal (Mann) political
party, which supported the creation of an independent state
for Sikhs in India called Khalistan. Singh owned trucks that
he used to transport party members to rallies and to carry pro-
Khalistan political posters.
On May 4, 1994, police stopped Singh while he was
driving home from a political meeting with two other party
members. Police transported Singh to the station and
detained him for four days because he was carrying pro-
Khalistan posters in his truck. They questioned Singh about
SINGH V. HOLDER 5
which terrorists he was meeting with and beat him with
leather belts, wooden sticks, and a rifle butt. He was not
released until his family, with the help of his village
sarpanch, bribed the police.
On November 2, 1995, police detained Singh as he was
returning from a political rally. They removed a banner from
his truck that advertised the political rally and took him to the
station. There, they detained Singh for ten days and beat him
with sticks and straps. Once again they questioned Singh
about aiding militants and terrorists. And once again police
released Singh only after his family and village sarpanch paid
a bribe.
On June 7, 1997, police arrested Singh for a third time.
A bomb blast had occurred in the city where Singh was
working, and police detained him at a checkpoint because he
is a Sikh. Police questioned him about the blast for five days
before transferring him to another station where he was
beaten severely. After Singh fell unconscious from the
beating, police delivered him to the hospital. He was released
when a friend bribed the officer who was keeping watch.
Singh fled the area and eventually entered the U.S. without
inspection. In the meantime, Indian police continued to
question and harass his wife, father, uncle, and cousin.
The IJ denied Singh’s application for asylum on the basis
that it was time barred. The IJ further found that Singh’s
testimony was not credible or corroborated. And he
concluded that Singh was arrested for allegedly violating laws
of general applicability rather than persecuted on account of
a protected ground. The IJ therefore denied Singh’s request
for withholding of removal and protection under the CAT.
6 SINGH V. HOLDER
The BIA entered an order affirming the IJ’s decision to deny
all three forms of relief.
In an unpublished memorandum disposition, we granted
in part Singh’s petition for review. Singh v. Keisler, 249 F.
App’x 602, 603 (9th Cir. 2007). We held that we lacked
jurisdiction to review the determination that Singh’s asylum
application was time barred. Id. at 602. And we agreed with
the IJ and the BIA that Singh was not entitled to relief under
the CAT. Id. at 603. With respect to Singh’s request for
withholding of removal, we declined to adopt the IJ’s adverse
credibility finding because the BIA had not done so. Id. at
602. We then held that substantial evidence did not support
the determination that Singh’s second and third arrests were
not motivated by a protected ground. Id. at 603. We
therefore concluded that Singh had suffered past persecution,
which gives rise to a presumption that he is eligible for
withholding of removal. Id.
We remanded the case to the BIA, id., which in turn
remanded to the IJ for further findings concerning Singh’s
eligibility for withholding of removal. The IJ held a hearing
on July 21, 2008. Singh testified that his wife and father had
told him that police continued to visit their homes to inquire
about his whereabouts. They demanded to know his contact
information in the U.S. and left only after his father bribed
them. He also submitted declarations from his wife, father,
and village sarpanch stating that Indian police were still
looking for him. The government responded by pointing out
inconsistencies in Singh’s testimony and introducing
documents indicating that conditions in India had changed for
Sikhs who were members or supporters of groups like Akali
Dal (Mann).
SINGH V. HOLDER 7
On September 2, 2008, the IJ issued an order denying
Singh’s application for withholding of removal. The IJ
acknowledged that, pursuant to this court’s memorandum
disposition, Singh had established that he suffered past
persecution on account of a protected ground and that he was
therefore entitled to a presumption that he would be
persecuted if returned to India. See 8 C.F.R.
§ 1208.16(b)(1)(i). The IJ nevertheless concluded that the
government had carried its burden to show by a
preponderance of the evidence that there had been a
fundamental change in circumstances so as to overcome the
presumption that Singh would be persecuted if he were
removed. See id. § 1208.16(b)(1)(i)(A). The IJ declared that
Singh’s testimony that police continued to harass his family
and search for him was not credible. He also analyzed the
country reports and other documents submitted by both
parties and concluded that there was no evidence that
similarly situated individuals were being persecuted in India.
On May 26, 2010, the BIA dismissed Singh’s appeal. The
Board did not adopt the IJ’s adverse credibility determination.
Instead, the BIA agreed with the IJ’s assessment that “[t]he
country information submitted by the Department of
Homeland Security (DHS) reflects that conditions in India
have greatly improved.” The Board quoted country reports
from the U.S. Department of State and the U.K. Home Office
to this effect. And it explained that “the Immigration Judge
properly analyzed how changed country conditions affected
[Singh’s] specific situation and was sufficiently
individualized to provide substantial evidence for the
conclusion that [Singh] failed to establish eligibility for
relief.”
8 SINGH V. HOLDER
II
“We review petitions for review of the BIA’s
determination that a petitioner does not qualify for asylum or
withholding of removal under the highly deferential
‘substantial evidence’ standard.” Zetino v. Holder, 622 F.3d
1007, 1012 (9th Cir. 2010) (citing INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992)). “Where the BIA issues its own
decision but relies in part on the immigration judge’s
reasoning, we review both decisions.” Flores-Lopez v.
Holder, 685 F.3d 857, 861 (9th Cir. 2012).
III
Because we previously determined that Singh had
endured past persecution, Singh, 249 F. App’x at 603, he is
entitled to a presumption that his life or freedom would be
threatened in the future if he is removed to India, 8 C.F.R.
§ 1208.16(b)(1)(i). That presumption is rebutted if the
government shows by a preponderance of the evidence that
there has been a fundamental change in circumstances such
that Singh’s life or freedom would not be threatened on
account of a protected ground upon his return to India. Id.
§ 1208.16(b)(1)(i)(A).
The IJ and the BIA concluded that there had been a
fundamental change in circumstances after interpreting and
applying the country condition evidence submitted by the
parties. Both the IJ and the BIA cited the State Department’s
2008 issue paper on the treatment of Sikhs in India, which
explains that “[t]oday, conditions for Indian Sikhs differ
dramatically from those of the 1980s and 1990s. Sikhs have
ascended to the highest level of the Indian government.” See
Kumar v. INS, 204 F.3d 931, 934 (9th Cir. 2000) (reasoning
SINGH V. HOLDER 9
that conditions had fundamentally changed where, inter alia,
the petitioner’s political party had participated in elections).
The issue paper acknowledges that “[h]uman rights abuses,
including, torture, arbitrary arrest, and custodial rape, are still
committed by police throughout India. While conditions
have improved since 1995 and progress has been rapid in the
past 10 years, police impunity for committing human rights
abuses remains a legitimate threat to all Indians.” But the
paper concludes that “[t]here is no indication that Sikhs are
singled out for such abuse or that such abuse occurs with
either the overt or tacit consent of the Government of India.”
See 8 U.S.C. § 1231(b)(3) (stating that an alien is eligible for
withholding of removal “if the Attorney General decides that
the alien’s life or freedom would be threatened in that country
because of the alien’s race, religion, nationality, membership
in a particular social group, or political opinion.” (emphasis
added)). The issue paper further notes that “[a]ny current
persecution of Sikhs based on political or religious beliefs
would be widely covered by India’s vibrant and open media,”
which lends a degree of confidence to the State Department’s
assessment that individuals like Singh are not being
persecuted on account of a protected ground.
The government also introduced the State Department’s
2007 country report on human rights practices in India. The
thirty-four page report is devoid of any mention of recent or
ongoing persecution of Sikhs, even though it extensively
catalogs threats to human rights encountered by various
political, religious, and ethnic groups in India. See Sowe v.
Mukasey, 538 F.3d 1281, 1285 (9th Cir. 2008) (“U.S.
Department of State country reports are the most appropriate
and perhaps the best resource for information on political
situations in foreign nations.” (internal quotation marks and
citation omitted)); Molina-Estrada v. INS, 293 F.3d 1089,
10 SINGH V. HOLDER
1096 (9th Cir. 2002) (“Even in the face of a presumption of
future persecution, a State Department report is relevant.”).
The country report states that the Indian government
continued to investigate reports of murder and illegal
cremation during the 1980s and early 1990s in Punjab, and
that a commission recommended compensating the family
members of individuals who were killed by Indian police
during that period. In 2005, India’s prime minister
apologized to the Sikh community for atrocities committed in
the 1980s and 1990s, two party officials resigned after being
indicted for their role in the violence, and charges were
reportedly filed against dozens of police officials. See Sowe,
538 F.3d at 1286 (explaining that conditions had
fundamentally changed where, inter alia, the perpetrators of
the past persecution were being held accountable by the
government).
The reports acknowledge, however, that the government
made “little progress” in holding hundreds of other police
officers accountable for causing the death and disappearance
of Sikhs in the 1980s and 1990s. India’s slow and uneven
progress in prosecuting those responsible for past persecution
is troubling. But it does not mean that the Board’s decision
is not supported by substantial evidence. We have repeatedly
recognized that the IJ and the BIA are entitled to rely on
country reports that contain mixed messages, ambiguities, or
inconsistencies. See Gonzalez-Hernandez v. Ashcroft,
336 F.3d 995, 999 (9th Cir. 2003) (“That the country report
is somewhat contradictory or ambiguous [ ] does not render
it useless to the changed country conditions inquiry. . . .
[W]hen such a country report is at issue, it is entirely
appropriate for the BIA to ‘bring its expertise to bear upon
the matter[]’ . . . and decide which portions of the report are
relevant to the applicant.” (quoting INS v. Ventura, 537 US
SINGH V. HOLDER 11
12, 17 (2002)); see also Go v. Holder, 640 F.3d 1047, 1054
(9th Cir. 2011) (“[The petitioner] correctly points out that the
country reports describe several instances of abuse and
corruption within the [ ] criminal justice system.
Nevertheless, other information contained in these reports
supports the Board’s conclusion that torture is unlikely.”);
Sowe, 538 F.3d at 1286 (“We are not in a position to second-
guess the IJ’s construction of the somewhat contradictory [ ]
country report.”). We would be overstepping our bounds if
we reviewed the country reports de novo rather than affording
the agency’s interpretation of the evidence its due deference.
See Gonzalez-Hernandez, 336 F.3d at 1000 (“[T]he agency,
not a court of appeals, must construe the country report and
determine if country conditions have changed such that the
applicant no longer has a well-founded fear of
persecution. . . . [W]here the BIA rationally construes an
ambiguous or somewhat contradictory country report and
provides an individualized analysis of how changed
conditions will affect the specific petitioner's situation,
substantial evidence will support the agency determination.”
(internal quotation marks and citation omitted)); Marcu v.
INS, 147 F.3d 1078, 1082 (9th Cir. 1998) (“[T]here is a
factual dispute regarding the current conditions in [the
petitioner’s country of origin]. We do not solve this dispute.
Our task is to determine whether there is substantial evidence
to support the BIA’s finding, not to substitute an analysis of
which side in the factual dispute we find more persuasive.”).
The evidence introduced by the government is sufficiently
individualized to address Singh’s claim that he will be
persecuted because of his past involvement with the Akali
Dal (Mann) party. See Popova v. INS, 273 F.3d 1251, 1259
(9th Cir. 2001) (“The [government] is obligated to introduce
evidence that, on an individualized basis, rebuts a particular
12 SINGH V. HOLDER
applicant’s specific grounds for his well-founded fear of
future persecution. Information about general changes in the
country is not sufficient.” (internal quotation marks and
citations omitted)). The government submitted a 2003 report
by the Citizenship and Immigration Service (CIS), which
observes that “[t]here is little recent evidence suggesting that
members or supporters of the Akali Dal (Mann) party in
Punjab are being systematically targeted for arrest or other
forms of mistreatment by police. . . . [A]ny police abuse of
Akali Dal (Mann) supporters would likely get press
attention.” Furthermore, a human rights lawyer who is
“active in Punjab human rights issues” reported in 2002 “that
he was not aware of any recent arrests or incidents of
harassment of Sikhs solely on account of their political
views.” And “[a]dding to the notion that Sikhs are no longer
targeted simply for holding pro-Khalistani views, two recent
nongovernmental reports concluded that while torture is still
a serious problem in Punjab, police generally no longer
torture Sikhs on account of political views or suspected
militant links. Amnesty International said in a January 2003
report that currently ‘the majority of victims are detainees
held in connection with criminal investigations, and include
members of all religious communities and social groups.’”
Another 2003 report from the CIS notes that “several experts
have suggested that only those considered by police to be
high-profile militants are at risk. . . . Punjab police normally
do not consider a person to be a high-profile militant . . .
simply for having strong political views or being politically
active.” The evidence offered by the government thus
expressly addresses the plight of individuals who, like Singh,
were active supporters of Akali Dal (Mann) and related pro-
Khalistani causes.
SINGH V. HOLDER 13
The CIS reports, like the State Department’s country
report, contain some ambiguous and inconsistent language.
For example, one expert “speculated that it is possible that
Punjab police at times arrest Akali Dal (Mann) supporters
because they suspect them of being linked to secret factions
within the Akali Dal . . . [that] essentially operate as terrorist
cells.” Another expert opined that “Punjabi Sikhs are likely
targeted at times by local officials for holding pro-Khalistani
views” by “rogue officers at the local level, perhaps for
personal reasons” even though “this is not done
systematically.” The expert added that it “seemed plausible”
that “this harassment could include detention and physical
abuse” though “she had no recent evidence of such treatment
being meted out.” As we have already noted, it is well
established that a decision is supported by substantial
evidence despite the presence of conflicting or ambiguous
information in the country reports. See Gonzalez-Hernandez,
336 F.3d at 999; see also Go, 640 F.3d at 1054; Sowe,
538 F.3d at 1286.
This is not a case where the record contained only limited
information about the circumstances faced by the petitioner
or consisted solely of unreliable or uncorroborated reports.
See, e.g., Smolniakova v. Gonzales, 422 F.3d 1037, 1052 (9th
Cir. 2005) (observing that the government’s country
condition submissions were limited to two newspaper articles,
which are not authoritative evidence of country conditions);
Mousa v. Mukasey, 530 F.3d 1025, 1030 (9th Cir. 2008)
(noting that the government relied on a single newspaper
article as evidence of changed country conditions). In
addition to the evidence already discussed, both the BIA and
the IJ cited a 2007 operational guidance note from the U.K.
Home Office, which echoes the U.S. State Department’s
views in concluding that “[i]t is [ ] unlikely that individuals
14 SINGH V. HOLDER
associated at a low or medium level with Sikh militant groups
would be able to establish a well-founded fear of
persecution.” The government’s submissions also included
a 2008 country report from the U.K. and a 2000 report from
Denmark. The IJ weighed the government’s documents
alongside Singh’s country condition evidence, which
consisted of reports from Amnesty International and Human
Rights Watch. Like the State Department’s 2008 issue paper,
these reports note that many of the police officers responsible
for the atrocities committed against Sikhs in the 1980s and
early 1990s have not been brought to justice. But the reports
make no mention of either ongoing persecution of Sikhs or
any risk of renewed persecution of individuals because they
are Sikh, members of Akali Dal (Mann), or supporters of
related pro-Khalistani causes.
The scope and precision of the country report evidence in
the record distinguishes this case from the cases where we
have deemed such evidence insufficient to support a
determination that there has been a fundamental change in
circumstances. See, e.g., Mutuku v. Holder, 600 F.3d 1210,
1213–14 (9th Cir. 2010) (explaining that the lone country
report offered by the government stated that political activists
like the petitioner were still “routinely” persecuted and that
“[n]othing” in the report indicated that conditions had
changed for individuals like the petitioner); Ahmed v. Keisler,
504 F.3d 1183, 1197–98 (9th Cir. 2007) (observing that the
country report contained “numerous references” to
persecution of similarly situated individuals and that the
government had not offered evidence that conditions in the
area where petitioner lived had improved).
The dissent relies on our unpublished memorandum
disposition in (Kapur) Singh v. Holder, 372 F. App’x 821
SINGH V. HOLDER 15
(9th Cir. 2010), to argue that the country reports are not
sufficiently individualized. The decision lacks precedential
value. See 9th Cir. R. 36-3(a) (“Unpublished dispositions and
orders of this Court are not precedent.”). To the extent that
an unpublished memorandum disposition ought to inform our
decision, we note that there are a number of memoranda that
are consistent with our conclusion in this case. See, e.g.,
(Achhar) Singh v. Holder, 550 F. App’x 487, 488 (9th Cir.
2013) (“[A] Citizenship and Immigration Services report
indicates that only a small number of high-profile Sikhs who
have been implicated in political militancy remain at risk in
India. . . . Although the record also contains some evidence
of continuing harassment of Sikhs due to their suspected or
actual pro-Khalistani views, there is ample evidence
supporting the IJ’s decision, and ‘[w]e are not in a position to
second-guess the IJ’s construction of [a] somewhat
contradictory . . . country report.’” (alterations and omission
in original) (quoting Sowe, 538 F.3d at 1286)); (Harpal)
Singh v. Holder, 399 F. App’x 310, 311 (9th Cir. 2010);
(Joginder) Singh v. Holder, 391 F. App’x 666, 667 (9th Cir.
2010) (“The country condition reports indicate that
persecution in the Punjab region on account of Akali Dal
Mann membership essentially ended as of the mid-1990s.”);
Vaid v. Mukasey, 288 F. App’x 321, 324 (9th Cir. 2008).
In addition to requiring sufficiently individualized
evidence of changed circumstances in the petitioner’s country
of origin, see, e.g., Popova, 273 F.3d at 1259, we have also
required the agency to “make an individualized
determination” of the petitioner’s claim for relief by
“assessing the impact of changed country conditions on an
individualized basis,” Lopez v. Ashcroft, 366 F.3d 799, 806
(9th Cir. 2004) (emphasis added). In other words, we have
not credited overbroad and conclusory statements that fail to
16 SINGH V. HOLDER
reference relevant evidence. See, e.g., Gui v. INS, 280 F.3d
1217, 1229 (9th Cir. 2002) (holding that an unsupported one-
sentence statement that country conditions had changed “did
not represent the kind of individualized analysis this court has
required”).
Here, both the IJ and the BIA expressly applied the record
evidence to Singh’s own individual circumstances. As noted,
the orders cited the relevant portions of the issue papers
published by the U.S. State Department and the U.K. Home
Office. The excerpts quoted by the agency stated that it was
unlikely that an individual would be persecuted either
because he is a Sikh or because he is a member or supporter
of political groups like Akali Dal (Mann). For example, the
IJ noted that the U.K. operational guidance note “states that
even actual members of militant separatist groups are not
likely to be able to establish persecution.” He then applied
this evidence to Singh’s particular circumstances, explaining
that “[t]he most [Singh] claims is that police suspected him of
aiding members a decade ago. But if the members
themselves are not subject to persecution, it makes no sense
to believe that mere sympathizers are at risk of persecution.”
The IJ once again revealed that he had considered the specific
grounds for possible persecution raised by Singh when he
concluded that “it is clear from the foregoing [evidence] that
[Singh’s] mere membership in the Akali Dal Mann Party
provides no basis, in today’s India, for a finding that he will
be persecuted.”
In short, the agency identified the particular grounds on
which Singh claimed he might be persecuted and cited
specific relevant evidence showing that persecution on those
grounds is unlikely. That is the very definition of the
individualized determination that our case law requires. See
SINGH V. HOLDER 17
Chand v. INS, 222 F.3d 1066, 1079 (9th Cir. 2000) (“[T]he
determination of whether or not a particular applicant's fear
is rebutted by general country conditions information requires
an individualized analysis that focuses on the specific harm
suffered and the relationship to it of the particular information
contained in the relevant country reports.”).
The agency’s application of the country condition
evidence to Singh’s testimony distinguishes this case from
the cases where we have held that the analysis is not
sufficiently individualized. See, e.g., Ali v. Ashcroft,
394 F.3d 780, 788 (9th Cir. 2005) (“The only information
specific to [the petitioner] that the IJ cites is that there is no
evidence of ‘genocide or imprisonment’ of members of her
clan. The IJ fails to discuss both the persecution that [the
petitioner] experienced on account of her political opinion,
and whether the circumstances have changed such that she no
longer needs to fear retaliation.”); Garrovillas v. INS,
156 F.3d 1010, 1017 (9th Cir. 1998) (“The BIA did quote two
paragraphs of a State Department report finding generally
improved conditions in the [petitioner’s country of origin],
but did not discuss its applicability to [the petitioner]. Thus,
it is not clear whether this quotation was intended to serve as
a means of rebutting the presumption of a well-founded fear
of future persecution.”).
Furthermore, the IJ appropriately weighed the country
reports against Singh’s testimony and the affidavits submitted
by Singh’s wife, father, and village sarpanch stating that
Indian police continue to search for him. As noted, we
decline to adopt the IJ’s adverse credibility determination
because the BIA did not expressly do so. But “[t]he general
principle requiring the factfinder and a court of appeals to
accept a petitioner’s factual contentions as true in the absence
18 SINGH V. HOLDER
of an adverse credibility finding does not prevent us from
considering the relative probative value of hearsay and
non-hearsay testimony.” Gu v. Gonzales, 454 F.3d 1014,
1021 (9th Cir. 2006). The IJ observed that Singh’s wife,
father, and village sarpanch “have not been questioned to
determine the validity and accuracy of the statements, and
this is especially problematic in light of the fact that the
claims in the affidavits are completely at variance with the
country condition evidence.” For this reason, the IJ
concluded that “the affidavits are entitled to very little
weight.” This determination, like the rest of the agency’s
findings, is consistent with our case law. See id. (“[W]here
an asylum applicant’s testimony consists of hearsay evidence,
the statements by the out-of-court declarant may be accorded
less weight by the trier of fact when weighed against
non-hearsay evidence.”); Sharma v. Holder, 633 F.3d 865,
870–71 (9th Cir. 2011) (“The police, according to [the
petitioner’s] hearsay recounting of what his father told him,
did continue to threaten [the petitioner] after he came to the
United States. But, because it is hearsay, the immigration
tribunals were permitted to give this evidence less weight
than the other evidence in the record.”). By contrast, the IJ
reasoned that the country reports were “entitled to more
weight by virtue of their objectivity and the fact that they are
public, official documents, drafted to provide guidance to
government officials.” See Sowe, 538 F.3d at 1285 (“U.S.
Department of State country reports are the most appropriate
and perhaps the best resource for information on political
situations in foreign nations.” (internal quotation marks and
citation omitted)).
The crux of our disagreement with the dissent appears to
result from our straightforward application of the principle
that the agency is entitled to weigh conflicting evidence. See
SINGH V. HOLDER 19
Sharma, 633 F.3d at 871 (“[T]he immigration tribunals were
permitted to give [certain] evidence less weight than the other
evidence in the record.”). The dissent’s primary contention
is that the country reports “provide[] little information
relevant to petitioner’s precise claim: that the police have
specifically targeted him because of his past political
activities and suspected support of militants, and that they
continue to target him and his family.” Dissenting Op. at 24
(emphasis added). By framing the issue this way, the dissent
glosses over the fact that the agency justifiably discounted
Singh’s evidence that Indian police “continue to target him
and his family” in light of the country report evidence
showing that it is highly unlikely that Singh would be
persecuted “because of his past political activities and
suspected support of militants” or on account of any other
protected ground.
We note again that the BIA did not adopt the IJ’s
determination that Singh’s testimony was not credible. But
there is a difference between an adverse credibility
determination, on the one hand, and a decision concerning
how to weigh conflicting evidence, on the other hand. Our
decisions in Sharma and Gu plainly set out this distinction.
See Sharma, 633 F.3d at 871; Gu, 454 F.3d at 1021 (“The
general principle requiring the factfinder and a court of
appeals to accept a petitioner’s factual contentions as true in
the absence of an adverse credibility finding does not prevent
us from considering the relative probative value of hearsay
and non-hearsay testimony.”). We have also recognized this
same concept in related contexts. For example, in Zehatye v.
Gonzales, 453 F.3d 1182 (9th Cir. 2006), we assumed that the
petitioner’s testimony in support of her asylum application
was true because the Board did not make an express adverse
credibility determination. Id. at 1185 & n.5. Although we
20 SINGH V. HOLDER
assumed that the petitioner’s statements were true, we
nevertheless compared her evidence that she would be
persecuted in her country of origin with a country report that
was generally at odds with her testimony. Id. at 1185–87.
We denied the petition for review based on the evidence in
the country report even though we acknowledged that the
report suggested that members of the petitioner’s group were
persecuted “under some circumstances.” Id. at 1185.
Similarly, in Aden v. Holder, 589 F.3d 1040 (9th Cir. 2009),
the IJ and the BIA denied the petitioner’s asylum application
without making an adverse credibility determination. Id. at
1043. The petitioner testified that he was persecuted on
account of his membership in a particular clan, but the IJ
could not confirm that the relevant clans existed “because
none of the country materials produced by either side
mentioned” the names of the clans described by the
petitioner. Id. at 1042. The petitioner produced letters that
supported the existence of the persecuted clan of which he
claimed to be a member, but we explained that such evidence
“does not enable us to substitute our judgment about the
persuasiveness of this corroboration for the BIA’s.” Id. at
1046. We denied the petition for review. Id. at 1047. The
bottom line is that we regularly permit immigration tribunals
to afford country report evidence more weight than contrary
evidence offered by the petitioner even though they have not
made an adverse credibility determination because there is a
difference between testimony that is not credible and
evidence that is not entitled to much weight. See id. at 1045
(“Apparently honest people may not always be telling the
truth, apparently dishonest people may be telling the absolute
truth, and truthful people may be honestly mistaken or relying
on unreliable evidence or inference themselves.”).
SINGH V. HOLDER 21
In Aden, we offered an example that is particularly useful
here: “[I]f, hypothetically, the IJ said ‘you seem like an
honest person, but the country report says that the [clan of
which the petitioner is a member] is treated with great respect
and never hindered in any way by the [other] clans,’ [the IJ]
would weigh persuasiveness in light of the whole record
including such evidence.” Aden, 589 F.3d at 1044–45. That
is the situation the IJ confronted in this case. The government
introduced country reports containing ample evidence that
individuals who were persecuted because of their
involvement with Sikh militant groups are no longer likely to
be persecuted in India. The petitioner introduced declarations
from his wife, father, and village sarpanch stating that Indian
police were still searching for him. The IJ then followed our
instructions in Aden by weighing the “persuasiveness” of the
country report evidence “in light of the whole record
including such evidence.” Id. at 1045. Citing our decision in
Gu, the IJ reasoned that “the declarants have not been
questioned to determine the validity and accuracy of the
statements, and this is especially problematic in light of the
fact that the claims in the affidavits are completely at
variance with the country condition evidence. As such the
affidavits are entitled to very little weight.”
The dissent departs from our case law when it requires the
country reports to reveal “country conditions for individuals
previously persecuted and currently wanted by police”
without accounting for the fact that the agency appropriately
discounted the evidence showing that Singh is “currently
wanted by the police.” Dissenting Op. at 24. The dissent
proposes what amounts to a two-step framework: first, the
petitioner’s evidence that he will be persecuted is given full
weight; and second, the country report evidence is analyzed
through the lens of the petitioner’s evidence. This novel
22 SINGH V. HOLDER
approach disregards the cases where we have permitted the
agency to compare country report evidence with the
petitioner’s evidence that he will be persecuted and to
conclude that the petitioner’s evidence is not entitled to much
weight. See Gu, 454 F.3d at 1021; see also Aden, 589 F.3d at
1044–46; Zehatye, 453 F.3d at 1185–87.
Of course there might be instances where the agency
weighs conflicting evidence in a manner that is not supported
by substantial evidence. We have considered and rejected
that possibility here in light of the comprehensive and precise
country reports showing that individuals are unlikely to be
persecuted because of their involvement with Sikh separatist
groups. The agency properly performed its core functions of
weighing conflicting evidence, bringing its expertise to bear,
and articulating the rationale underlying its decision. We
have no basis to disturb the agency’s determination.
IV
The IJ and the BIA determined that the government
showed that there has been a fundamental change in
circumstances such that Singh’s life or freedom would not be
threatened on account of his race, religion, nationality,
membership in a particular social group, or political opinion
if he were removed to India. We conclude that this decision
is supported by substantial evidence. Accordingly, the
petition for review is DENIED.
SINGH V. HOLDER 23
GETTLEMAN, District Judge, dissenting:
I respectfully dissent from the majority opinion denying
petitioner Jagtar Singh’s petition for review because, in my
view, that denial is based on country reports that do not rebut
the presumption of future persecution resulting from this
court’s ruling in the prior appeal that petitioner suffered past
persecution. Singh v. Keisler, 249 F.App’x 602 (9th Cir.
2007). The majority confirms the findings by the
Immigration Judge (“IJ”) and the Board of Immigration
Appeals (“BIA”) that do not address petitioner’s precise
claim and that erroneously require petitioner to meet an
improper and near-impossible burden of proof, instead of
placing the burden on the government, as required by law.1
On remand from this court’s prior order granting review
of the petition for withholding of removal, the government
attempted to rebut the presumption of future persecution with
a 2008 U.S. State Department Issue paper, a 2007 State
Department Country Report (together, the “U.S. Country
Reports”), a 2007 United Kingdom Home Office operational
guidance note (“the U.K. Report”), and two reports from the
United States Citizenship and Immigration Services
(“USCIS”). The IJ (as affirmed by the BIA) found that
changed country circumstances constituted substantial
evidence that petitioner’s “mere membership in the Akali Dal
Mann Party provides no basis, in today’s India, for a finding
that he will be persecuted.” I respectfully disagree with the
majority’s approval of this conclusion because this petitioner
does not claim persecution “merely” based on his past
political activities (for which he was arrested and tortured),
1
8 C.F.R. §§ 1208.16(b)(1)(ii).
24 SINGH V. HOLDER
but rather that he has been and continues to be persecuted
individually regardless of changed general circumstances.
The IJ erroneously focused on the portions of the tendered
country reports that detailed then-current conditions for
individuals affiliated with Sikh separatist political
movements. These reports provided little information
relevant to petitioner’s precise claim: that the police have
specifically targeted him because of his past political
activities and suspected support of militants, and that they
continue to target him and his family. To the extent that the
reports touched on country conditions for individuals
previously persecuted and currently wanted by police, they
support petitioner’s claim.
The UK Report includes a section on Sikhs that spans a
few pages. The Report concludes that Sikhs no longer
constitute a persecuted group; but, as noted above,
petitioner’s claim is not that he will be persecuted simply
because he is a Sikh or because of the general political
situation. Petitioner’s claim is grounded in his previous
interactions with Punjabi police (which this court has credited
in his first appeal) and his fear of continued persecution
(which this court has directed to presumed). The UK Report
supports petitioner’s claim by noting that the human rights
abuses at the time the report was written were different from
the abuses of the 1980s because “now the abuse was
individual and had specific reasons.” Consistent with that
observation, petitioner offered evidence that shows that he
has been individually targeted by the police, not that he is
generally at risk because of his political affiliation.
The U.K. Report further states that it is unlikely that
“individuals associated at a low or medium level with Sikh
SINGH V. HOLDER 25
militant groups would be able to establish a well-founded fear
of persecution.” The BIA quoted this language from the UK
Report as strong evidence that country conditions had
changed. That is not, however, the posture of this case; this
court has already ruled that this petitioner has established a
well-founded fear of individual persecution. Singh v. Keisler,
249 F. App'x at 603.
Further, in an unpublished opinion in Singh v. Holder,
372 F. App'x 821, 823 (9th Cir. 2010), this court analyzed a
UK Country Report similar to the report at issue here.2 That
case held that country reports that do not address a
petitioner’s specific claim do not support an individualized
determination of the petitioner’s claim. The petitioner in
Singh v. Holder claimed that he would be subject to
persecution in Punjab as a result of his political opinion and
past persecution by police. Of critical significance to the
instant case, the court noted that,
[t]he United Kingdom's India Country Report
states that the Sikh militant movement is ‘no
longer active in the Punjab,’ a fact irrelevant
to whether persons who were members in the
now-dormant movement would face
persecution were they to return. In fact, the
Report indicates that they would face
persecution, stating that persons like Singh,
2
The UK Report submitted in the instant case draws heavily on the
Country Report described in Singh v. Holder, and in fact uses the same
language quoted in the Singh v. Holder opinion. Both reports rely heavily
on a March/April 2000 fact-finding mission to Punjab by the Danish
Immigration Service in drawing their conclusions about the then-current
situation of Sikhs in Punjab.
26 SINGH V. HOLDER
who have a ‘local history of abuse at the
hands of the police,’ or are ‘militant[s],’ still
face persecution. There is also no affirmative
evidence in the State Department's report on
human rights practices in India to show that
country conditions relevant to Singh have
changed. [Id.]
Singh v. Holder thus succinctly states the flaws in the
evidence presented by the government and is wholly
inconsistent with the majority opinion in the instant case.3
As the majority notes, the 2007 and 2008 U.S. Country
Reports barely mention the state of Punjab or Sikhs at all,
with the exception of a discussion of the investigation into
police misconduct in the mid-1990s. Under Lopez v.
Ashcroft, 366 F.3d 799, 805 (9th Cir. 2004), “[i]nformation
about general changes in the country is insufficient for the
government to overcome the presumption.” The IJ quotes the
2008 U.S. Country Report, noting that Sikhs have “ascended
to the highest levels of the Indian Government,” and that the
current Prime Minister is a Sikh. This type of general country
information is, however, insufficient to rebut a presumption
of future persecution, as this court has specifically held in the
past. See Mutuku v. Holder, 600 F.3d 1210, 1214 (9th Cir.
2010) (finding that a country report that simply asserted that
the fact that Kenya’s president shared a political affiliation
3
Although the majority criticizes this citation to an unpublished opinion,
my reference to Singh v. Holder is not as binding precedent, but as a case
that is relevant and instructive to the instant case. Circuit Rule 36-3
clearly allows for the citation of unpublished decisions in accordance with
Federal Rule of Appellate Procedure 32.1.
SINGH V. HOLDER 27
with the petitioner did not constitute substantial evidence of
changed country conditions).4
Although the U.S. Country Reports do mention serious
problems in other Indian states, they do not offer any support
for the government’s argument that the country has changed
such that petitioner no longer faces a threat to his life based
on his past political affiliation and encounters with police.
The omission of any statement about Punjab or Sikhs cannot
be construed an affirmative statement that the country has
changed for those individuals. In fact, the IJ criticized the
country condition evidence produced by petitioner for its
failure to specifically mention human rights abuses in Punjab.
The IJ therefore cannot properly find at the same time that the
U.S. Reports are sufficient but petitioner’s reports are
insufficient.
Neither USCIS report mentioned by the majority is
discussed in the IJ or BIA opinions. The first USCIS position
paper is titled “India: Information on Treatment of Members
of the Akali Dal (Mann) Party in Punjab.” The first question
presented is whether Punjab police arrest or otherwise
mistreat Sikhs solely on account of membership in the Akali
Dal (Mann) party, or for expressing support for the party.
Again, this is not petitioner’s claim; he does not claim that
the police would arrest him randomly because of his political
affiliation. His claim is that they are already targeting him
based on his past activity and will continue to do so if he
returns. This is entirely separate from the first question
addressed in the report.
4
I also note that this is no more informative of country conditions than
a claim that racism does not exist in the United States because Barack
Obama is president.
28 SINGH V. HOLDER
The next material question addressed in the first USCIS
report is whether Punjabi Sikhs are targeted solely for
expressing support for the Khalistani cause. The report
concludes that Sikhs are no longer targeted simply for
holding pro-Khalistani views. It also notes, however, that
“Punjabi Sikhs are likely targeted at times by local officials
for holding pro-Khalistani views, but this is not done
systematically . . . . any such targeting is probably the work
of rogue officers at the local level.” This paper thus provides
little support for the government’s position, and instead
demonstrates that the police do in fact target individuals, as
petitioner has alleged.
The second USCIS position paper is titled “India:
Information Relocation of Sikhs from Punjab to Other Parts
of India.” This paper addresses whether Punjab police pursue
certain Sikhs who have relocated to other parts of India. The
paper concludes that “[o]bservers generally agree that Punjab
police will try to catch a wanted suspect no matter where he
has relocated in India.” The position paper also notes that
some observers report that police pursue only “high-profile”
individuals. Although the paper focuses on militants and
members of armed opposition groups, one prominent human
rights lawyer stated that “[a] Sikh . . . who [like petitioner]
has been arrested one or more times on suspicion of being
involved in political militancy, even a person suspected of
such an involvement– whether or not the person has ever
been actually arrested– is likely to be pursued wherever he or
she goes.” Thus, the USCIS paper supports petitioner’s claim
because, as this court found in his prior appeal, he was
arrested and tortured on multiple occasions based on his
suspected support of militants, and his testimony that police
continue to visit his home is consistent with the practices
detailed in the USCIS report.
SINGH V. HOLDER 29
Other than the second USCIS paper, the collective reports
offer very little insight into the situation faced by Sikh
individuals who, like petitioner, have suffered persecution in
the past and continue to be subject to police harassment. This
is a substantially different issue than whether “rank and file”
members of Akali Dal Mann are persecuted at random. The
only report that discusses individuals who have suffered past
persecution is the ten-year-old USCIS report regarding the
extent to which police pursue individuals who have already
been arrested as a result of their affiliation with political and
militant groups, and neither the IJ nor the BIA relied on this
report. The ambiguous information contained in the reports
is not sufficient to establish by a preponderance of the
evidence, as 8 C.F.R. § 208.13(b)(1)(i)(A) requires, that
conditions have changed to alleviate petitioner’s well-
founded fear of persecution or to overcome the presumption
of future persecution. When “evidence in the country report
indicates that persecution similar to that experienced by the
petitioner still exists,” the presumption of persecution is not
rebutted. Boer-Sedano, 418 F.3d at 1089. In fact, the
information provided in the USCIS papers demonstrates that
persecution likely still exists.
Moreover, the IJ erroneously failed to give any weight to
petitioner’s testimony or the affidavits from his family
members because the declarants had not been questioned
about the accuracy of their statements. Requiring cross-
examination on these types of supporting affidavits is
imposing a substantially excessive burden on an applicant.
When the burden rests with the government to rebut the
presumption of future persecution, it is incongruous that the
petitioner should have to not only offer witnesses and
evidence, but then secure their availability for cross-
examination. The IJ appears to have drawn every inference
30 SINGH V. HOLDER
against petitioner, instead of appropriately placing the burden
with the government.
Finally, the IJ and the majority fault the evidence
petitioner presented as unreliable and containing hearsay
statements. Petitioner produced sworn affidavits from family
members and a local politician regarding their first-hand
observations of police conduct and conversations with Indian
law enforcement. Because of the IJ’s doubts regarding the
validity and accuracy of the claims, he accorded petitioner’s
evidence very little weight. Yet the country and USCIS
reports submitted by the government, although official
documents, are rife with hearsay-within-hearsay. These
papers cite the opinions and speculations of a handful of
“India experts,” unnamed human rights lawyers, an “expert
on religious militancy,” and one U.S.-based political scientist.
Although the IJ found those statements more “objective” than
petitioner’s family’s sworn statements, they are hardly the
kind of detailed and individualized inquiries required to
address the record presented in the instant case. See Singh v.
Holder, 372 F. App'x at 824.
Because I find: (a) that substantial evidence does not
support the IJ and BIA’s conclusion that the government has
adequately demonstrated changed country circumstances;
(b) that the IJ and BIA incorrectly shifted the burden of proof
to petitioner rather than the government; and (c) that the IJ
and BIA failed to conduct the individualized analysis required
by law, I would grant the petition for review, direct the BIA
to grant petitioner’s application for withholding of removal,
and remand for consideration of a discretionary grant of
asylum.