NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 1 2024
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

RANJIT SINGH,                                   No. 22-577
                                                Agency No.
             Petitioner,                        A208-885-319
 v.
                                                MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,

             Respondent.

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

                     Argued and Submitted October 16, 2023
                           San Francisco, California
Before: BEA, CHRISTEN, and JOHNSTONE, Circuit Judges.
Partial Dissent and Partial Concurrence by Judge BEA.

      Ranjit Singh, a native and citizen of India, petitions for review of the Board

of Immigration Appeals’ (BIA) order denying his applications for asylum and

withholding of removal. We “review legal conclusions de novo” and “review for

substantial evidence factual findings underlying the BIA’s determination that a

petitioner is not eligible for asylum [or] withholding of removal.” Plancarte


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Sauceda v. Garland, 

, 831 (9th Cir. 2022) (citation omitted). When,

as here, the BIA adopts and affirms the Immigration Judge’s (IJ) decision by citing

Matter of Burbano, 

 (BIA 1994), and offers additional

reasoning, the court reviews both decisions. Husyev v. Mukasey, 

 (9th Cir. 2008). We assume the parties’ familiarity with the facts and recite

them only as necessary. We have jurisdiction pursuant to 

(a), and

we grant the petition in part, deny it in part, and remand to the BIA.

      The IJ concluded that Singh suffered past persecution on account of his

membership in a cognizable particular social group—the family of his father,

Balkar Singh—in the state of Punjab, India. The IJ found that the Government

carried its burden of proof and rebutted the presumption of future persecution by

showing that Singh could safely and reasonably relocate to another part of Punjab

or outside Punjab where he would not be persecuted on account of being a member

of his father’s family. The BIA adopted and affirmed the IJ’s determination that

the Government met its burden of proof. It also expressly concluded that Singh

was not entitled to a presumption that relocation would be unreasonable because

his persecutors were private actors, rather than the government.

      Because the IJ found that Singh had suffered past persecution, the

Government bore the burden of establishing that Singh could safely and reasonably

relocate within India to avoid future persecution by a preponderance of the



                                         2                                    22-577
evidence. See 

(b)(1)(ii). The IJ began her analysis by

nominally placing the burden of proof on the Government. However, the bulk of

the IJ’s three-paragraph discussion of the evidence regarding safe relocation does

not appear to assign the burden of proof to either party, and some parts of the IJ’s

discussion appear to fault Singh for failing to produce evidence showing that

relocation would not be safe. For example, the IJ found that Singh’s evidence had

not “establish[ed] that [his persecutors] could use the tenant verification system or

Aadhaar card information to learn of [his] whereabouts upon his relocation in

India.” It is therefore unclear whether the agency impermissibly shifted the burden

of proof to Singh. “[T]he presence of evidence favorable to [Singh] is not what is

determinative here . . . . If the government’s . . . evidence fails to rebut the

presumption that relocation is [unsafe], the presumption must stand.” Afriyie v.

Holder, 

, 935–36 (9th Cir. 2010) (emphasis omitted) (quoting Navas

v. INS, 

 (9th Cir. 2000)), overruled on other grounds by Bringas-

Rodriguez v. Sessions, 

 (9th Cir. 2017) (en banc).

      “Because of the IJ’s lack of clarity” as to which party was required to show

that Singh could or could not safely relocate, we remand Singh’s asylum claim

based on his membership in the family of Balkar Singh to the agency “to ensure

that it evaluates the relocation issue in accord with the proper burden of proof.” Id.

at 935; see also Singh v. Whitaker, 

 (9th Cir. 2019) (recognizing



                                          3                                        22-577
that the Government usually must make “a more comprehensive showing” to meet

its burden of proof when it does not identify a specific region of the country to

which the applicant could safely relocate).1

      We also remand Singh’s asylum claim because, under the regulations

applicable at the time his asylum application was considered, he was entitled to a

presumption that internal relocation would be unreasonable even though his

persecutors were private actors. See 

(b)(3)(ii) (2013) (“In cases

in which the persecutor is a government or is government-sponsored, or the

applicant has established persecution in the past, it shall be presumed that internal

relocation would not be reasonable . . . .” (emphasis added)); see also Fakhry v.

Mukasey, 

 (9th Cir. 2008) (citing INS v. Ventura, 

,


      1
              Our dissenting colleague argues that Afriyie is distinguishable because
“there was no suggestion in Afriyie that the IJ cited or relied on affirmative
evidence presented by the Government demonstrating that relocation would be safe
or reasonable.” To the contrary, in Afriyie the Government provided documentary
evidence to show that the petitioner could safely and reasonably relocate, including
two country conditions reports on which the BIA expressly relied in affirming the
IJ’s relocation finding. See 612 F.3d at 929–30 (explaining that “[t]he government
introduced two official reports to support its contention that Afriyie could relocate
in Ghana” and that the BIA relied on those reports to conclude that relocation
would be safe). Despite the Government’s affirmative evidence, the Afriyie court
concluded that the agency was unclear as to which party bore the burden of proof.
Id. at 935. In Singh’s case, the Government relies on the fact that Singh’s sister
lives unharmed in another part of Punjab to establish that Singh can safely relocate.
The agency may certainly consider the evidence in the record concerning Singh’s
married sister, including whether Singh’s persecutors were aware of her, in
assessing whether Singh can safely relocate, but Afriyie instructs that it must do so
within the proper burden-of-proof framework.

                                        4                                    22-577
16–17 (2002) (per curiam)) (remanding to the BIA because the agency “failed to

apply [a] presumption” to which the petitioner was entitled). On remand the BIA

will have an opportunity to apply this presumption in the first instance.2

      Finally, we remand Singh’s withholding of removal claim based on his

membership in the family of Balkar Singh because the BIA did not separately

address it. See Singh, 

 n.2. On remand the BIA will have the

opportunity to do so.

      We deem unexhausted Singh’s argument that he will face persecution on

account of his political opinion. See Umana-Escobar v. Garland, 

 (9th Cir. 2023). Singh’s brief to the BIA did not challenge the IJ’s finding that

Singh had not faced persecution on account of his political opinion, and the BIA

concluded that Singh had waived any challenge to the IJ’s finding. The

Government properly raises Singh’s failure to exhaust his administrative remedies

under 

(d)(1). We therefore deny the petition with respect to

Singh’s claims for asylum and withholding of removal on account of his political

opinion.

      Petition GRANTED in part, DENIED in part, and REMANDED.



      2
             The parties agree that the 2013 asylum regulations govern this case.
The regulations have since been amended, and applicants who establish past
persecution by private actors no longer qualify for the presumption that internal
relocation would be unreasonable. See 

(b)(3)(ii) (2023).

                                        5                                    22-577
                                                                         FILED
Singh v. Garland, No. 22-577                                              FEB 1 2024
BEA, Circuit Judge, dissenting in-part and concurring in-part:       MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS

      It is clear from the IJ’s decision that she properly assigned to the Government

the burden of proving that Singh could safely relocate to another part of India. And

the plain text of 

(b)(3)(ii) (2013) did not entitle Singh to a

standalone presumption against reasonable relocation because, under the plain

language of that rule, the presumption does not come into play if the Government

offers evidence establishing that relocation would be reasonable, which is what

happened here. I therefore disagree with the majority’s two bases for granting

Singh’s petition and would deny it entirely.1

                                         A.

      There is no “lack of clarity” in the IJ’s decision as to upon “which party” the

IJ placed the burden of proving safe relocation. The IJ “began her analysis by . . .

placing th[at] burden of proof on the Government.” The majority concedes this but

concludes that it was not enough: not only did the “beg[inning] of her analysis” have

to cite the correct burden of proof, “the bulk” of the IJ’s “three-paragraph” safe



1
  Because the agency’s relocation analysis was without error, remanding for the BIA
to reexamine Singh’s withholding of removal claim based on his relationship with
his father is unnecessary. See Singh v. Whitaker, 

, 661 n.2 (9th Cir.
2019). I therefore dissent from that ground for granting Singh’s petition as well. I
otherwise agree with the majority that Singh failed to exhaust his argument that he
will face persecution on account of his political opinion.

                                         1
relocation analysis needed to do so as well. When have we ever required the agency

to parrot the correct legal standard throughout its decision? Surely reciting the

correct rule of law once is enough.

      The IJ not only correctly identified the Government as the party who bore the

burden of proving safe relocation; she explicitly relied on the Government’s

affirmative evidence to conclude that it met its burden of proof on this issue—

namely, Singh’s admission on cross-examination that his sister, who lived “far

away” in another part of the Punjab, had never been threatened, attacked, or even

approached by Badal party members about her and Singh’s father joining the Badal

party. My colleagues ignore this part of the IJ’s analysis entirely and they do not

acknowledge that the IJ expressly concluded from “[t]his evidence . . . that [Singh]

could . . . live safely in another part of India, where he would not face harm from

Badal Party workers.”

      The majority suspects that the IJ impermissibly required Singh to prove

relocation was unsafe because she “appear[ed] to fault Singh for failing to produce

evidence showing that relocation would not be safe.” Respectfully, that is not what

happened below. The IJ never “fault[ed]” Singh for “failing to produce evidence that

relocation would . . . be [un]safe.” The IJ acknowledged that Singh produced

“extensive” evidence on this issue. She simply found that evidence unpersuasive:

      [Singh] submitted extensive documentation about the Indian tenant
      verification system; however, this evidence does not establish that
                                         2
      Badal Party workers could use the tenant verification system or
      Aadhaar card information to learn of Singh’s whereabouts upon his
      relocation in India . . . [T]here is no evidence that such tenant
      information is disseminated to the public or made available to other
      organizations outside of the police. There is also no indication that the
      Badal Party or any other political party is privy to tenant verification
      information. Therefore, . . . even if Singh relocated and was subject to
      the tenant verification system, it is improbable that the Badal Party
      would learn of his whereabouts and subsequently use this information
      to target him.
      It was not error for the IJ to consider this evidence that Singh volunteered. See

Afriyie v. Holder, 

 (9th Cir. 2010) (“The BIA may look to any

evidence introduced by Afriyie that bears on reasonable[] [relocation].”). In fact, the

IJ would have abused her discretion had she not weighed this evidence because IJs

“are not free to ignore arguments [or evidence] raised by a petitioner.” Sagaydak v.

Gonzales, 

 (9th Cir. 2005); see also, e.g., Cole v. Holder, 

, 771–72 (9th Cir. 2011) (“[W]here there is any indication that the [agency]

did not consider all of the evidence before it . . . the decision cannot stand.”). But

with the majority’s holding, the IJ on remand must now choose between rejecting

this same evidence again or ignoring it at the risk of committing separate error. I

cannot support that outcome.

      It seems the majority’s only source of inspiration for remanding on this ground

is our decision in Afriyie v. Holder.2 But in that case there were multiple, glaring


2
 My colleagues also cite Singh v. Whitaker for support—namely, its remark that “a
more generally defined area [proposed for safe relocation] will likely require a more
                                          3
problems with both the BIA’s and IJ’s relocation analyses that required remand—

problems simply absent here. The BIA in Afriyie “did not state who had the burden

of proof with respect to relocation.” Afriyie, 

. The BIA and IJ here

did. The IJ in Afriyie blamed the asylum applicant for “offer[ing] no evidence that

relocation . . . would not be reasonable” or safe. 

 (emphasis added). But rather

than fault Singh for “offer[ing] no evidence” on the safe relocation question, the IJ

here noted Singh’s “extensive” evidence on this issue but ultimately found most of

that evidence unpersuasive. Lastly, there was no suggestion in Afriyie that the IJ

cited or relied on affirmative evidence presented by the Government demonstrating

that relocation would be safe or reasonable. 

 at 934–35. The IJ avoided that

mistake below by relying on Singh’s cross-examination testimony. Simply put, the

relocation analysis in Afriyie was flawed from start to finish, which is not the case

here.

        Because there is no ambiguity as to whether the IJ placed the burden on the

Government to prove safe relocation—she did—I disagree with remanding on this

ground.

                                         B.


comprehensive showing of proof.” 

. That statement plainly speaks
to a different question: whether substantial evidence supports the IJ’s finding that
Singh could safely relocate. That is not at issue here because my colleagues never
dispute whether substantial evidence supports the IJ’s safe relocation finding.

                                         4
      The majority also concludes that 

(b)(3)(ii) (2013)

“entitled” Singh to a standalone presumption “that internal relocation would be

unreasonable.” But the remaining language of that rule says otherwise:

      In cases in which the . . . the applicant has established persecution in
      the past, it shall be presumed that internal relocation would not be
      reasonable, unless the Service establishes by a preponderance of the
      evidence that, under all the circumstances, it would be reasonable for
      the applicant to relocate.

 (emphasis added).

      The majority conveniently omits § 1208.13(b)(3)(ii)’s dependent clause when

invoking this rule. That clause is a proviso that plainly conditions when the asylum

applicant is entitled to the presumption set forth in that rule.3 Under its plain

language, “it shall be presumed” that the applicant cannot reasonably relocate

“unless” the Government “establishes . . . [that] it would be reasonable for the

applicant to relocate.”4 § 1208.13(b)(3)(ii) (2013). Here, the BIA found that the


3
 See Antonin Scalia & Bryan A. Garner, Reading Law: Interpretation of Legal Texts
154–55 (1st ed. 2012) (proviso canon) (“A proviso conditions the principal matter
that it qualifies—almost always the matter immediately preceding.”); see also id. at
140–41 (grammar canon) (“Words are to be given the meaning that proper grammar
and usage would assign them.”).
4
  Had § 1208.13(b)(3)(ii) (2013) meant for this dependent clause to describe the
circumstances under which the presumption may be rebutted, the rule would have
said so explicitly. See, e.g., §§ 1208.13(b)(1), (b)(1)(i)(B) (2013) (providing that the
presumption of “a well-founded fear of [future] persecution . . . may be rebutted” if
the Government proves by a preponderance of the evidence that relocation would be
reasonable) (emphasis added).

                                           5
Government proved (and established through that proof) that Singh could reasonably

relocate to another part of India. Adopting the IJ’s reasoning, the agency relied on

Singh’s youth, good health, educational background, and prior farming experience

to conclude that Singh could reasonably find gainful employment elsewhere in his

home country.

      I find no error with the BIA’s analysis—neither does the majority, it seems.

Singh’s age, health, education, and employment prospects were all legally

permissible factors for the agency to weigh in its reasonable relocation analysis. See

§ 1208.13(b)(3) (2013). The agency’s reasonableness finding, in any case, was a

factual one subject to substantial evidence review. See Hussain v. Rosen, 

 (9th Cir. 2021); Mashiri v. Ashcroft, 

 (9th Cir. 2004).

Singh did not prove that the record compels the opposite finding that he could not

reasonably relocate within India. 

(b)(4)(B) (“[A]dministrative

findings of fact are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.”).

      Because the IJ and BIA found that the Government proved reasonable

relocation, Singh was not entitled to § 1208.13(b)(3)(ii)’s presumption under the

plain text of that rule. I therefore dissent and would deny Singh’s petition in full.




                                            6