NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            DEC 11 2023
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
SIMRANJOT SINGH,                                 No.   22-794

              Petitioner,                        Agency No. A215-666-482

 v.
                                                 MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                            Submitted December 6, 2023**
                              San Francisco, California

Before: S.R. THOMAS, BRESS, and JOHNSTONE, Circuit Judges.
Dissent by Judge BRESS.

      Petitioner Simranjot Singh, a native and citizen of India, petitions for review

of a decision by the Board of Immigration Appeals (“the BIA”) affirming the

Immigration Judge’s denial of asylum, withholding, and protection under the

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Convention Against Torture (“CAT”) and denying Singh’s motion to reopen for

consideration of new evidence. We have jurisdiction under 

(a).

As the parties are familiar with the facts, we do not recount them here. We grant

the petition and remand as to asylum, withholding, and protection under the CAT,

and deny the petition as to the motion to reopen.

      We review factual findings for substantial evidence and questions of law de

novo. Bhattarai v. Lynch, 

 (9th Cir. 2016). Where, as here,

the BIA “has reviewed the IJ’s decision and incorporated portions of it as its own,

we treat the incorporated parts of the IJ’s decision as the BIA’s.” Molina-Estrada

v. INS, 

 (9th Cir. 2002) (as amended). We review the BIA’s

denial of a motion to reopen for abuse of discretion. Tzompantzi-Salazar v.

Garland, 

 (9th Cir. 2022).

                                          I

      The BIA’s denials of asylum, withholding, and CAT protection each relied

on its determination that Singh—although a victim of past political persecution at

the hands of Bharatiya Janata Party (“BJP”) members—could safely relocate to an

area of India not controlled by the BJP, such as Delhi. As the BJP is the ruling

party of India’s national government, the BIA erred in failing to consider whether

Singh was entitled to a presumption of a nationwide threat of persecution.


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      “[W]hen a petitioner suffers persecution at the hands of a major political

party . . . the source of the persecution is the government itself.” Kaur v.

Wilkinson, 

 (9th Cir. 2021). And “where the applicant has

established a well-founded fear of future persecution at the hands of the

government, a rebuttable presumption arises that the threat exists nationwide.”

Singh v. Whitaker, 

 (9th Cir. 2019) (quoting Melkonian v.

Ashcroft, 

 (9th Cir. 2003)); see also 

(b)(3)(ii) .

      Here, the BIA did not consider that the BJP controls India’s national

government or apply the presumption of a nationwide threat. On the contrary, the

BIA adopted the IJ’s findings that “Delhi is not controlled by the BJP.” Had the

BIA considered the nationwide presumption, the BIA would have needed to

consider that the BJP “is the nation’s government” and that “[i]t has never been

thought that there are safe places within a nation when it is the nation’s

government that has engaged in the acts of punishing opinion that have driven the

victim to leave the country.” Singh v. Moschorak, 

 (9th Cir.

1995). Although the BIA did apply the presumption of a well-founded fear of

persecution, that presumption is no substitute for the presumption of nationwide

persecution. Whitaker, 

 (remanding where “[t]he BIA failed to

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apply that nationwide presumption to Singh’s asylum claim, even though it

correctly afforded him the presumption of a well-founded fear of persecution”);

Melkonian, 

 (distinguishing between the two presumptions).

      We therefore remand for the agency to reevaluate Singh’s asylum,

withholding, and CAT claims to determine whether BJP members constitute

government perpetrators under Kaur, and if so, whether the government rebutted

the presumption of a nationwide threat under Whitaker.

                                          II

      The BIA did not abuse its discretion by denying Singh’s motion to reopen.

The new evidence presented by Singh was not material because Singh’s claim rests

on his persecution as a Mann Party member, and the new evidence did not relate to

persecution against Mann Party members. See Tzompantzi-Salazar, 

 (“[T]he agency may deny a motion to reopen if . . . the petitioner failed to

introduce previously unavailable material evidence.”) Accordingly, Singh’s

petition is denied as to the motion to reopen.

      PETITION GRANTED IN PART, DENIED IN PART, REMANDED.




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                                                                              FILED
Singh v. Garland, 22-794                                                   DEC 11 2023
                                                                       MOLLY C. DWYER, CLERK
BRESS, Circuit Judge, dissenting.                                        U.S. COURT OF APPEALS


        I respectfully dissent from the decision to grant the petition for review as to

the asylum, withholding of removal, and CAT claims. I would deny the petition in

full.

        Substantial evidence supports the denial of asylum and withholding of

removal. Having found that the petitioner demonstrated past persecution, the BIA

properly afforded the petitioner a rebuttable presumption of future persecution.

Following our direction in Singh v. Whitaker, 

 (9th Cir. 2019), the BIA

conducted “a reasoned analysis with respect to [the] petitioner’s individualized

situation,” 

, and determined that the government rebutted the presumption

by showing that Singh could safely and reasonably relocate within India to an area

like Delhi. See 

(b)(1)(i)(B) (2018).

        As part of its relocation analysis, the BIA considered and rejected the

possibility that the petitioner would face a risk of future persecution because the BJP

was a part of the national government. Citing the IJ’s reasoning, the BIA explained

that petitioner “is not a high-profile militant of the Mann Party, and . . . his pro-

Khalistani views would not make him of interest to government authorities.” And

the BIA specifically rejected the petitioner’s assertion “that the Immigration Judge

did not consider the risk that he faces from the ruling BJP party.” At the end of its

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analysis, the BIA cited 8 C.F.R § 1208.13(b)(3)(ii), the very provision the petitioner

argues the agency ignored by failing to address his concern that the BJP is part of

the national government. Because the BIA properly afforded the petitioner the

presumption of future persecution by the BJP upon relocation, this case is unlike

Singh v. Whitaker, in which the BIA only considered whether authorities in Punjab

would pursue the petitioner to a new location. 

.

      Likewise, the BIA’s analysis was consistent with Kaur v. Wilkinson, 

 (9th Cir. 2021). The BIA did what we directed it to do in that case: “conduct

a thorough, individualized analysis of [the petitioner’s] ability to relocate internally,

placing the burden on the government as required under Singh.” 

. The

rest of Kaur, including its direction about what constitutes “the government” for

purposes of a past persecution analysis, is not relevant here, because the BIA treated

the petitioner as having established past persecution.

      Substantial evidence also supports the BIA’s denial of CAT relief because

Singh failed to show it is “more likely than not” that he would be tortured if returned

to India. Vitug v. Holder, 

 (9th Cir. 2013). Singh has not alleged

any past harm rising to the level of torture. See Sharma v. Garland, 

,

1067 (9th Cir. 2021). Nor has Singh demonstrated a likelihood of future torture,

especially considering his ability to safely relocate within India. The evidence thus




                                           2
“does not compel the conclusion” that Singh will more likely than not be tortured if

removed to India. Tamang v. Holder, 

 (9th Cir. 2010).

      I therefore respectfully dissent from the grant of the petition as to the asylum,

withholding of removal, and CAT claims.




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