21-6636 Singh v. Garland BIA Schoppert, IJ A202 064 135

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of March, two thousand twenty-four.

PRESENT: ROBERT D. SACK, DENNY CHIN, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

DAVINDER SINGH, Petitioner,

v. 21-6636-ag

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Anas J. Ahmed, Pannun The Firm, P.C., Jackson Heights, New York.

FOR RESPONDENT: Karen L. Melnik, Trial Attorney, Office of Immigration Litigation (Brian M. Boynton, Principal Deputy Assistant Attorney General, and Bernard A. Joseph, Senior Litigation Counsel, Office of Immigration Litigation, on the brief), Civil Division, United States Department of Justice, Washington, District of Columbia.

UPON DUE CONSIDERATION of this petition for review of a Board of Immigration

Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the

petition for review is GRANTED.

Petitioner Davinder Singh, a native and citizen of India, seeks review of a December 9,

2021 decision of the BIA, affirming a July 16, 2018 decision of an Immigration Judge (“IJ”)

denying his application for asylum. 1 In re Davinder Singh, No. A 202 064 135 (B.I.A. Dec. 9,

2021), aff’g No. A 202 064 135 (Immig. Ct. N.Y. City July 16, 2018). We assume the parties’

familiarity with the underlying facts and procedural history, to which we refer only as necessary

to explain our decision to grant the petition.

We have reviewed both the IJ’s and the BIA’s decisions “for the sake of completeness.”

Wangchuck v. Dept. of Homeland Sec.,

(2d Cir. 2006). We review legal

conclusions de novo and findings of fact for substantial evidence. See Jagdeep Singh v. Garland,

(2d Cir. 2021). “[T]he administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.”

(b)(4)(B).

Singh alleged he was threatened by members of the Akali Dal Badal Party (“Badal Party”)

because of his involvement with the Shiromani Akali Dal Amritsar Party, and asserted that he

could not relocate within India because Badal Party members would find him through India’s

national identification system and were allied with the Bharatiya Janata Party, which holds power

nationally. The agency concluded that Singh failed to establish past persecution and thus bore the

1 Singh has not separately appealed the denial of his claims for withholding of removal and relief under the Convention Against Torture. 2 burden of demonstrating a well-founded fear of future persecution. We remand for the agency to

consider past persecution under the proper standard and then, to the extent required, to determine

if the parties met their relevant burdens with respect to future persecution. See

(b)(1) (“An applicant who has been found to have established such past persecution shall

also be presumed to have a well-founded fear of persecution on the basis of the original claim.”);

§ 1208.13(b)(ii) (placing burden on the government to rebut the presumption). 2

The agency failed to consider whether Singh could establish past persecution based on the

Badal Party’s attack on his father. Following Singh’s departure from India, Badal Party members

searched for him at his father’s home and beat his father, fracturing his leg, when his father would

not reveal his whereabouts. “[P]ersecution is ‘an extreme concept that does not include every sort

of treatment our society regards as offensive.’” Mei Fun Wong v. Holder,

(2d

Cir. 2011) (quoting Ai Feng Yuan v. U.S. Dep’t of Just.,

(2d Cir. 2005)).

However, it “encompasses a variety of forms of adverse treatment, including non-life-threatening

violence and physical abuse.” Ivanishvili v. U.S. Dep’t of Just.,

(2d Cir.

2006) (alteration adopted) (internal quotation marks and citation omitted). Here, the agency

considered the general rule that “the statutory scheme unambiguously dictates that applicants can

become candidates for asylum relief only based on persecution that they themselves have suffered

or must suffer.” Tao Jiang v. Gonzales,

(2d Cir. 2007) (alteration omitted)

(internal quotation marks and citation omitted)). In applying this rule, the agency failed to

consider that, although persecution of a family member generally cannot be considered persecution

of the applicant, “if an applicant’s family member was harmed as a means of targeting

2 References are to the regulations in effect at the time of the IJ’s decision. 3 the applicant on some protected ground, that harm may constitute persecution of the applicant.”

We conclude that remand is required under the circumstances present here because this

error may have affected the agency’s conclusion. If the agency concludes that Singh established

past persecution, then he has a presumption of a well-founded fear of future persecution and the

burden shifts to the government to rebut that presumption, e.g., by establishing that Singh could

safely and reasonably relocate within India. See

(b)(1), (2), (3)(i). We

remand because, under these circumstances, we cannot “confidently predict,” Cao He Lin v. U.S.

Dep’t of Just.,

(2d Cir. 2005), that the agency would reach the same conclusion

if the government had the burden to rebut the presumption of persecution. See

at 406–07

(remanding when it was unclear that the agency would reach the same results absent the errors in

the prior analysis).

For the foregoing reasons, the petition for review is GRANTED, the BIA’s decision is

VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this

order. As we have completed our review, all pending motions and applications are DENIED and

stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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