NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 7 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HARBINDER SINGH, No. 14-70418
Petitioner, Agency No. A072-681-352
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 18, 2017**
San Francisco, California
Before: BERZON and MURGUIA, Circuit Judges, and MCCALLA,*** District
Judge.
Harbinder Singh, a native and citizen of India, petitions for review of a 2014
Board of Immigration Appeals (“BIA”) decision denying his motion to reopen
*
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).
***
The Honorable Jon P. McCalla, United States District Judge for the
Western District of Tennessee, sitting by designation.
removal proceedings, in which he requested asylum, withholding of removal, and
protection under the Convention Against Torture.
Singh illegally entered the United States in 1990 and applied for asylum in
1993 based on his Sikh religion and political support of the Shiromani Akali Dal
Mann (“Mann”) party. In 1999, an Immigration Judge (IJ) held a removal hearing
and found that Singh was subject to removal because he was present in the United
States without being admitted or paroled. During the removal hearing, Singh
renewed his asylum application and sought withholding of removal and protection
under the Convention Against Torture. In 2004, following a hearing, the IJ found
Singh’s testimony not credible and denied his applications for relief. The BIA
affirmed the IJ’s decision in 2005. In 2013, Singh filed a motion to reopen, arguing
that changed country conditions and circumstances in India exempted his motion
from the ninety-day filing deadline. See 8 C.F.R. § 1003.2(c)(2). The BIA denied
Singh’s motion to reopen in 2014.
A motion to reopen typically must be filed within ninety days of the final
administrative decision. 8 C.F.R. § 1003.2(c)(2). The motion may fall within an
exception to the time limit if asylum or withholding of deportation is sought “based
on changed circumstances arising in the country of nationality or in the country to
which deportation has been ordered.” 8 C.F.R. § 1003.2(c)(3)(ii). To meet the
exception, a petitioner must present evidence that is “material and was not
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available and could not have been discovered or presented at the previous hearing”
of changed country conditions or circumstances. 8 C.F.R. § 1003.2(c)(3)(ii).
We review the BIA decision to deny a motion to reopen for abuse of
discretion. Salim v. Lynch, 831 F.3d 1133, 1137 (9th Cir. 2016).
The news articles and U.S. State Department country report Singh attached
in support of his motion to reopen do not clearly demonstrate materially changed
country conditions. The articles and country report indicate that concerns regarding
Sikh militancy and terrorist groups are present in Punjab, and that police have
arrested individuals involved with Sikh militant groups and detained members of
the Mann party. During the 2004 proceeding, the IJ found that Singh’s allegations
of support of the Mann party were not credible, and that, at most, Singh is a low-
level supporter, not a member, of the organization. The documentary evidence
does not show that targeting of low-level supporters of the Mann party has
materially increased or qualitatively differs from conditions at the time of Singh’s
original asylum petition in 2004.
The BIA did not abuse its discretion in finding that the events described in
Singh’s personal statement and his brother and uncle’s affidavits did not clearly
demonstrate materially changed country conditions or circumstances. Singh points
to two events that allegedly demonstrate increased harassment from the police
between 2004 and 2013—(1) a police interaction with his brother in March 2013
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and (2) recent questioning of his uncle by the police. Singh, his brother, and uncle
allege that, in March 2013, Indian police detained and questioned his brother about
Singh and asserted that Singh was sending money to Sikh militants from the
United States. The police warned Singh’s brother that if Singh did not stop his
activities, Singh’s brother would be denied an Indian visa. Singh’s brother also
alleges that the police threatened to kill Singh if they caught him. This event, while
troubling, does not materially differ from Singh’s alleged interactions with the
police at the time of his previous hearing in 2004, wherein he stated that “he
believes that police are looking for him according to distant relatives in his village”
and “the police said that if they find him again they would arrest him or kill him.”
In his previous hearing, Singh similarly alleged that the police “claimed that he
was a terrorist and that he was a traitor.” Singh’s evidence establishes only a
continuation of prior allegations of police targeting in India.
Singh also alleges that the police have recently “intensified pressure” on his
uncle, and that the police “recently questioned” his uncle and asserted that Singh
continues to be involved with Sikh militants. This interaction between the police
and Singh’s uncle, however, is not mentioned in his uncle’s affidavit.
We agree with our dissenting colleague that if the BIA discredited the
account of the 2013 events in Singh’s personal statement and the affidavits of his
brother and uncle by applying the IJ’s 2004 adverse credibility determination to the
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new events, that would be an abuse of discretion. See Yang v. Lynch, 822 F.3d 504,
509 (9th Cir. 2016) (holding that, if an affidavit submitted in support of a motion to
reopen contains new evidence for which no prior adverse credibility determination
has been made, the BIA may not discredit the new evidence). We differ only over
whether the BIA violated that rule in the instant case. We find that the BIA did not.
To the extent that the BIA imported the IJ’s 2004 adverse credibility
determination as to the statements in Singh’s personal statement and the affidavits
of his brother and uncle describing the previously discredited 1990 events, doing
so does not violate the rule set forth in Yang, 822 F.3d at 509. Singh’s testimony
regarding the 1990 events was found not credible by the IJ in 2004, and that
credibility determination was upheld by this court. Singh v. Keisler, 257 F. App’x.
7 (9th Cir. 2007).
As to the description of the 2013 events in Singh’s personal statement, the
BIA gave diminished weight to Singh’s statement for independent reasons—
because the facts were not based on personal knowledge and were not corroborated
by his uncle’s affidavit. As to the statements in Singh’s brother and uncle’s
affidavits, the BIA properly gave diminished weight to the statements due to their
equivocal, conclusory, and speculative nature.
It does not appear that the BIA gave diminished weight to the articles and
country report that Singh submitted in support of his 2013 motion to reopen.
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Though the BIA stated that the articles and country report do not appear material to
Singh’s claims, the BIA considered the evidence and found that it did not “reflect a
material change in country conditions for [Sikh activist and Sikhs who are
suspected to be associated with Sikh militant groups] since the time of [Singh]’s
2004 hearing.”
The BIA did not abuse its discretion in denying Singh’s motion to reopen.
PETITION DENIED.
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FILED
Singh v Sessions, No. 14-70418
JUL 7 2017
BERZON, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I would grant the petition for review. The Board of Immigration Appeals
(BIA) improperly imported an earlier negative credibility finding into the motion
to reopen context and improperly discounted affidavits submitted with the motion
to reopen.
Affidavits submitted with a motion to reopen must be taken as true unless
inherently unbelievable, see Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir. 2005),
and newly asserted facts cannot be disregarded based on past adverse credibility
findings unless those findings were conclusive and contradict the facts newly
asserted in affidavits, see Toufighi v. Mukasey, 538 F.3d 988, 994–95, 997 (9th Cir.
2008).
A key aspect of Singh’s motion to reopen concerned threats made in India in
2013 with regard to activities in which Singh allegedly engaged after he left
India—financing Sikh militants from abroad. The facts raised regarding those
activities and threats did not conflict with the immigration judge’s 2004 adverse
credibility findings, as neither the alleged activity nor the alleged threats had yet
occurred. The facts asserted in the 2013 affidavits from Singh’s relatives regarding
the 2013 threats—which were assertedly based on different activities than the
1
earlier threats—therefore should have been taken as true for purposes of
determining whether to grant the 2013 motion to reopen. As the BIA instead
discredited the affidavits, it misapplied the pertinent legal standards. For that
reason, the petition for review should be granted.
Moreover, although the majority relies on the BIA’s alternative bases for
discounting the affidavits with respect to the 2013 threats, those grounds are not
supported by substantial evidence. Singh’s account and his uncle’s are not in
conflict, and the brother’s quite specific account of the threats was in no way
“equivocal, conclusory, [or] speculative.” Although Singh’s brother,
understandably, could not say for sure what would happen to Singh if he returned,
that failure to predict the future in no way detracts from the factual statements he
made about the threats against Singh.
On return of the case, the BIA would be free, of course, to consider other
aspects of the motion to reopen—for example, whether the affidavits, if credited,
would demonstrate changed country conditions when considered together with the
other evidence submitted, and whether the motion was timely as measured from
Singh’s knowledge of the new threats. But we are not empowered to address these
issues in the first instance. See Lopez v. Ashcroft, 366 F.3d 799, 806 (9th Cir.
2004).
2
As I would grant the petition for review on this limited basis, I respectfully
dissent.
3