FILED
NOT FOR PUBLICATION OCT 21 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SWARAJ SINGH, No. 12-72309
Petitioner, Agency No. A089-318-735
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 9, 2014
Seattle, Washington
Before: PAEZ, BYBEE, and CALLAHAN, Circuit Judges.
Swaraj Singh petitions this court for review of the Board of Immigration
Appeals’s (“BIA”) denial of his claims for asylum, withholding of removal, and
protection under the Convention Against Torture. For the reasons stated herein, we
grant the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The BIA commits reversible error when it “fail[s] to mention highly
probative or potentially dispositive evidence.” Cole v. Holder, 659 F.3d 762, 772
(9th Cir. 2011). The BIA denied Singh’s asylum application based, in part, on its
conclusion that Singh had not established past persecution. However, in drawing
that conclusion, the BIA considered only Singh’s “questioning by the Indian police
and being punched in the face.” It made no mention of Singh’s allegations that
Khalistan Liberation Force (“KLF”) members threatened to kill him and held a gun
to his head, or of the murder of Singh’s brother, Gobinder. These facts formed an
important basis of Singh’s asylum claim, and the BIA erred in failing to consider
them for two reasons.
First, “we have consistently held that death threats alone can constitute
persecution,” Navas v. I.N.S., 217 F.3d 646, 658 (9th Cir. 2000) (collecting cases),
and where death threats are combined with physical violence or displays of
imminent force, a petitioner is even more likely to be able to establish past
persecution. See, e.g., Ruano v. Ashcroft, 301 F.3d 1155, 1160 (9th Cir.2002)
(finding past persecution where petitioner was threatened by men who had “closely
confronted” him and drawn their pistols in his presence). Thus, Singh’s statement
that the KLF members held a gun to his head when they threatened him was a
2
particularly important aspect of his claim to consider in assessing whether he had
experienced past persecution.
Second, applicants can establish past persecution when threats are coupled
with harm to people close to the applicant. See, e.g., Khup v. Ashcroft, 376 F.3d
898, 904 (9th Cir. 2004) (holding that threats combined with the murder of a
fellow preacher constituted past persecution). Therefore, the BIA should have
considered the KLF members’ threats in conjunction with his brother Gobinder’s
murder.
The BIA erred in failing to consider two of the essential aspects of Singh’s
claim of past persecution, and we remand so that it may do so. We note that Singh
argued that he was targeted on account of imputed political opinion before the
BIA, and the BIA appeared to conduct its analysis of the police’s treatment of
Singh under the assumption that, were Singh to establish persecution, this would
be the protected ground underlying his claim. Should the BIA determine that these
incidents amount to past persecution, it should reconsider whether Singh was
targeted on account of a protected ground.
Petition GRANTED and REMANDED.
3
FILED
Swarag Singh v Holder 12-72309 OCT 21 2014
MOLLY C. DWYER, CLERK
CALLAHAN, Circuit Judge, dissenting. U.S. COURT OF APPEALS
I respectfully dissent. In order to obtain asylum, a petitioner must show that
he was or will be persecuted based on a protected ground. 8 U.S.C.
§ 1158(b)(1)(B)(I). In my view, the BIA’s determination that Petitioner Singh had
not made the required showing was based on substantial evidence.
Here, the BIA held that Singh failed to show any persecution on account of
an imputed political opinion. It is true that a petitioner may show he has been
persecuted on account of an imputed political opinion when he is accused by the
police of terrorism based solely on his relationship with a known terrorist. See
Singh v. Holder, 764 F.3d 1153, 1159–60 (9th Cir. 2014). However, the BIA’s
finding in this case that Singh failed to show past persecution on account of an
imputed political opinion was based on substantial evidence because the few
instances of police questioning that he endured did not rise to the level of
persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003)
(unfulfilled threats constituted harassment, not persecution); cf. Khup v. Ashcroft,
376 F.3d 898, 904 (9th Cir. 2004), (finding persecution when the police threatened
the petitioner after torturing, killing, and dragging a fellow preacher’s body
through the streets). Further, in his petition to the Ninth Circuit, Singh disclaims
any argument that he was persecuted on account of an imputed political opinion.
See Pet’r’s Br. at 30 (“Mr. Singh never claimed to have been persecuted on account
of his actual or imputed political opinion . . . .”). Thus, Singh waived this
argument on appeal. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010)
(noting that the court generally will not “take up arguments not raised in an alien’s
opening brief.”).
Despite having only argued to the BIA that he had been persecuted on
account of an imputed political opinion, Singh now faults the BIA for failing to
consider whether he had been persecuted on account of his religion or membership
in a particular social group. However, the BIA cannot be faulted for its failure to
consider arguments that a petitioner never properly raised before it. See 8 U.S.C. §
1252(d)(1) (stating that a petitioner must exhaust all remedies before judicial
review of a final order of removal is appropriate); Omari v. Holder, 562 F.3d 314,
321 (5th Cir. 2009) (interpreting the statute as barring appellate consideration of
issues not raised before the BIA). Further, Singh even now does not explain how
he was persecuted on account of his religion or social group. Nor does he identify
his social group. Thus remand to consider whether he was persecuted on another
protected ground is not warranted.1
1
Singh recently filed a motion to reopen with the BIA based on his
conversion to Christianity in October 2012. See Pet’r’s Mot. to Stay Proceedings,
September 11, 2014, ECF No. 25. It is unclear whether any of his current claims
are moot in light of this conversion, though that motion is not at issue in the instant
Because the BIA’s conclusion that Singh failed to show past persecution on
account of an imputed political opinion was based on substantial evidence, and
because Singh failed to raise before the BIA the argument that he had been
persecuted on some other protected ground, I would deny Singh’s petition.
petition.