Submitted, San Francisco, California: January 16, 2014 [*].
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A077-843-923.
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.
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.
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.
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 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. 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.Appx. 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).
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."
" 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, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). " Where the BIA issues its own decision but relies in part on the immigration judge's ...