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Singh v. Whitaker

United States Court of Appeals, Ninth Circuit

January 24, 2019

Narinder P. Singh, AKA Narinder Pal Singh Petitioner,
v.
Matthew G. Whitaker, Acting Attorney General, Respondent.

          Argued and Submitted November 13, 2018 San Francisco, California

          On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A205-421-984

          Robert B. Jobe (argued) and Morgan Russell, Law Office of Robert B. Jobe, San Francisco, California, for Petitioner.

          Alexander J. Lutz (argued), Trial Attorney; Anthony C. Payne, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: RAYMOND C. FISHER and MILAN D. SMITH, JR., Circuit Judges, and ELAINE E. BUCKLO, [*] District Judge.

         SUMMARY[**]

         Immigration

         The panel granted in part and denied in part a petition for review of the Board of Immigration Appeals' denial of asylum, humanitarian asylum, withholding of removal, and protection under the Convention Against Torture.

         The panel held that the Board erred in failing to conduct a reasoned analysis with respect to petitioner's situation to determine whether, in light of the specific persons or entities that caused his past persecution, and the nature and extent of that persecution, there are one or more general or specific areas within his country of origin where he has no well-founded fear of persecution, and where it is reasonable for him to relocate pursuant to the factors set forth in 8 C.F.R. § 1208.13(b)(3).

         In so concluding, the panel held that based upon its plain language, § 1208.13(b)(3) does not require the government to propose a city, state, or other type of locality as the area of relocation, rather the Department of Homeland Security may properly propose a specific or a more general area as the place of safe relocation. The Board must then conduct its safe relocation analysis with respect to that proposed area, however specifically or generally defined.

         The panel also held that in considering the reasonableness of relocation, the Board erred in failing to analyze whether petitioner would be substantially safer in a new location if he were to continue expressing his political opinion, and erred by unlawfully assuming that petitioner could silence his political activity to avoid harm.

         The panel therefore granted the petition as to petitioner's asylum and withholding of removal claims, and remanded for the Board to conduct a sufficiently individualized analysis of whether petitioner could safely and reasonably relocate outside Punjab, and for reconsideration of whether he qualified for withholding from removal.

         The panel denied the petition as to petitioner's humanitarian asylum and CAT claims, holding that the threats and physical harm petitioner suffered did not rise to the requisite level to warrant humanitarian asylum, and that petitioner failed to establish that it was more likely than not he would be tortured if he returned to India.

          OPINION

          M. SMITH, CIRCUIT JUDGE

         Narinder Pal Singh, a citizen of India and a member of the political party Shiromani Akali Dal Amritsar (Mann Party), petitions our court to review the Board of Immigration Appeals' (BIA) decision denying his claims for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). After suffering multiple physical attacks at the hands of the Punjabi police and Congress Party members due to his participation in Mann Party events, Singh fled India. He initially entered the United States in January 2013. The Immigration Judge (IJ) denied all of Singh's claims. The BIA also denied Singh all relief sought, and then denied his motion to reconsider.

         We hold that the BIA erred in failing to conduct a reasoned analysis with respect to Singh's situation to determine whether, in light of the specific persons or entities that caused his past persecution, and the nature and extent of that persecution, there are one or more general or specific areas within his country of origin where he has no well-founded fear of persecution, and where it is reasonable for him to relocate pursuant to the factors set forth in 8 C.F.R. § 1208.13(b)(3). Because the BIA did not conduct a sufficiently individualized analysis of Singh's ability to relocate within India outside of the state of Punjab, we grant the petition for review and remand the withholding of removal and asylum claims to the BIA. However, we deny review of Singh's claims for humanitarian asylum and CAT protection.

         BACKGROUND

         Narinder Pal Singh is a native and citizen of India. He entered the United States on or about January 27, 2013 through the Nogales, Arizona port of entry, without possessing a valid entry document. An asylum officer later determined that Singh demonstrated a credible fear of persecution or torture. Singh applied for asylum, withholding of removal, and protection under CAT.

         At a hearing before the IJ, Singh testified that he is a Sikh and a member of the Mann Party. The Mann Party advocates for Sikh rights and an independent Khalistan state. Singh attended and assisted at Mann Party rallies, and distributed leaflets.

         Singh experienced several threats and suffered physical harm due to his membership in the Mann Party. He received telephonic threats in May and June of 2008, and again in October 2012. In June 2008, the police arrested Singh while he was distributing Mann Party leaflets, and beat him for six days with a leather strap. In August 2010, the police arrested Singh and detained him for ten days after protesting India's Independence Day. During Singh's detention, the police beat him with their fists and sticks, demanding that he stop supporting Khalistan and the Mann Party. Finally, in January 2012, the police arrested Singh and took him to the police station, where they beat him. In addition, Congress Party members beat Singh in April 2012, when he was returning from a Mann Party blood drive, and again in ...


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