FILED
NOT FOR PUBLICATION FEB 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BALWINDER SINGH, No. 09-71028
Petitioner, Agency No. A099-340-857
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 February 11, 2013
San Francisco, California
Before: D.W. NELSON, REINHARDT, and M. SMITH, Circuit Judges.
Balwinder Singh, a native and citizen of India, petitions for review of the
Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from an
Immigration Judge’s (“IJ”) denial of asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). We have jurisdiction pursuant to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
8 U.S.C. § 1252. We grant the petition and remand for further proceedings
pursuant to INS v. Ventura, 537 U.S. 12, 16–18 (2002) (per curiam).
The BIA assumed, arguendo, that Singh testified credibly and established
that he had been persecuted on account of one of the grounds for which an alien
may be granted asylum. See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1). We
therefore do the same.
The BIA nonetheless determined that Singh was ineligible for asylum,
withholding of removal, and CAT relief because, in the BIA’s view, the
Government demonstrated by a preponderance of the evidence that Singh could
safely and reasonably relocate in India in any of several Sikh communities outside
of the Punjab. The BIA’s conclusion was premised upon the fact that Singh “was
never himself politically active and was not a militant,” and “the country
conditions evidence reflects that low level activists or individuals without political
involvement do not face a high risk of persecution.”
This analysis was erroneous as a matter of law, because it is based upon
Singh’s actual political opinion (or rather, his lack thereof) instead of the political
opinion imputed to him by Indian security officials. See, e.g., Sangha v. INS, 103
F.3d 1482, 1489 (9th Cir. 1997) (explaining that in asylum cases involving
imputed political opinions “the focus of the inquiry turns away from the views of
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the victim to the views of the persecutor”). It is true that Singh did not claim to be
a Sikh separatist. He testified, however, that he was persecuted because Indian
security officials (wrongly) believed him to be a high-level supporter of, and donor
to, the Sikh separatist cause. In 2005 — a time when the country conditions
reports relied upon by the BIA suggest that nonpolitical Sikhs and low-level Sikh
activists had little to fear even within the Punjab region — security officials
detained Singh for a period of two weeks and repeatedly beat him with sticks,
straps, canes, and rifle butts. Singh was accused by his tormenters of funding
terrorism and inciting Sikh youth to acts of terrorism, precisely the activities that
cause Punjabi officials to pursue an individual outside of the Punjab region
according to the same country conditions reports. Furthermore, after his escape
from India, officials continued to warn the members of Singh’s family who
remained behind that he would be shot if he were to return.
For similar reasons, the BIA’s reliance on the fact that Singh’s brother-in-
law has been able to return safely to India was erroneous. Singh and his brother-
in-law are not similarly situated in the eyes of Indian security officials because
there is no evidence that officials believe that the brother-in-law participates in
militant groups or raises funds for them. See Hoxha v. Ashcroft, 319 F.3d 1179,
1184 (9th Cir. 2003).
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We therefore grant the petition and hold that the BIA’s determination that
Singh can internally relocate is not supported by substantial evidence. However,
given the passage of time since the IJ first addressed Singh’s ability to relocate, we
remand on an open record. Ventura, 537 U.S. at 18; 8 C.F.R. § 1003.1(d)(3)(iv).
PETITION FOR REVIEW GRANTED AND REMANDED.
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