Singh v. Mukasey

United States Court of Appeals
For the First Circuit

No. 07-2187

BAGH SINGH,

Petitioner,

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.

Ashwani K. Bhakhri for petitioner.
Jeffrey S. Bucholtz, Acting Assistant Attorney General, Terri
J. Scadron, Assistant Director, Office of Immigration Litigation,
and Margaret Perry, Senior Litigation Counsel, Office of
Immigration Litigation, for respondent.

September 25, 2008
 LIPEZ, Circuit Judge. Petitioner Bagh Singh, a native

and citizen of India, seeks review of a decision of the Board of

Immigration Appeals (BIA) denying his applications for asylum,

withholding of removal, and relief under the Convention Against

Torture (CAT). Singh claims that he experienced persecution in

India because of his father’s political beliefs. The BIA rejected

this contention and concluded that petitioner had failed to show

that any of the statutory bases for obtaining relief from

deportation was the "central reason" for his alleged persecution.

Singh challenges that conclusion, as well as the BIA’s finding that

he failed to corroborate his testimony, as required by the Real ID

Act of 2005, Div. B. of Pub. L. No. 109-13, 119 Stat. 302-23

(2005).

We do not reach the corroboration issue. Discerning no

error in the BIA's analysis of the alleged basis for persecution,

we deny the petition.

I.

On March 25, 2006, petitioner Singh attempted to enter

the United States as a stowaway on a boat arriving in San Juan,

Puerto Rico. He was immediately apprehended and charged with

multiple offenses that subjected him to removal from the country.

See 8 U.S.C. § 1182(a)(6)(D) (stowaway); § 1182(a)(9)(A)(ii)(I)

(alien ordered removed who seeks admission within 10 years of date

of departure or removal); 8 U.S.C. § 1182(a)(9)(C)(i)(II) (alien

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who has attempted to enter or reenter without being admitted).

Singh conceded deportability, but filed applications for relief

based on alleged persecution against his family in India.

In a hearing before an Immigration Judge (IJ), Singh

testified that his family, who lived in the Punjab region of India,

had been repeatedly targeted for harassment and violence because of

his father's political activity. His father, Rachhpal Singh

(Rachhpal), was an active member of the Akali Dal, a political

separatist group that clashed with the rival organization Babbar

Khalsa, a militant group of Sikh separatists. Petitioner testified

that his father's opposition to these rivals was vocal and open,

triggering the harassment his family endured. Their difficulties

began in the early 1990s, when members of the Babbar Khalsa showed

up at petitioner's home on several occasions and demanded food from

his mother. Singh testified that Rachhpal reported these visits to

the police but nothing was ever done. In January of 1995, two

members of the Babbar Khalsa entered Singh’s home and shot his

father. Singh and his cousin, who were standing near his father at

the time of the attack, also suffered gunshot wounds. All three

men were hospitalized for their injuries.

Singh, who worked on his family's farm, testified that he

believed his father had been targeted by the Babbar Khalsa because

he had reported their previous harassment to the police. His

father recognized the two shooters, who later called Singh's house

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and explicitly identified themselves as members of the Babbar

Khalsa. There is some confusion about whether Singh himself knew

the identity of the men; he first testified that he had never seen

them before, but later stated that they were the ones who had come

to his house and harassed his family in previous years.

Singh testified that he left India soon after the

shooting at the urging of his parents, who were concerned for his

safety. He then made his first attempt to enter the United States.

In July 1995, he crossed into Texas from Mexico, but was quickly

stopped by immigration authorities. He was detained for one night

and released on bail.

Singh was placed in deportation proceedings, but they

were never completed because he voluntarily left the United States

a month later. His father had died as a result of complications

from his bullet wounds, and Singh returned to India to console his

distraught mother. After his departure from the United States, an

in absentia deportation order was entered against him.

Shortly after his return to India, Singh's mother also

died, and he remained in India to farm the land he had inherited.

He claims that during the next six years, members of the Babbar

Khalsa repeatedly made threatening calls to him, claiming to be the

true heirs of his 120 acres of land. Singh complained to the

police, but there was no response. Singh testified that he did not

change his phone number because he believed that the harassers

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would be undeterred and that the calls would continue after they

inevitably obtained his new number.

In 2002, Singh was returning to his home when he was

attacked by Babbar Khalsa members, including his neighbor, Jasbeet

Singh (Jasbeet). Petitioner testified that Jasbeet encouraged the

attackers to kill him, so that "everything would be ours, his home,

his property." Singh suffered a head injury during the assault,

was briefly unconscious, and was taken to the hospital by another

neighbor. He explained that he had no documentary evidence of his

medical treatment because the doctor was "afraid of sending

anything to America."

Two years after this attack, Singh again decided to leave

India. He had no remaining family in the country and was afraid

of further physical harassment by the Babbar Khalsa. He sold a

portion of his property to pay the smuggler’s fees, and traveled to

the United States by way of Moscow, Cuba, and Venezuela. From this

last stop, he took a boat to Puerto Rico, where he was immediately

detained.

On January 5, 2006, Singh appeared with counsel at the

hearing before the IJ, where he recounted the history described

above. Four days later, the IJ denied Singh’s applications for

asylum, withholding of removal, and protection under the CAT. The

IJ found that Singh’s credibility was questionable, that his

testimony was weak and uncorroborated, and that he had not properly

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demonstrated that the persecution he claimed was on account of any

of the statutory grounds for seeking asylum or other relief from

deportation. On May 9, 2006, the BIA affirmed. In response to a

motion from the government, we vacated the Board's order of removal

and remanded the case to the BIA to address the effects on

petitioner's application of the REAL ID Act of 2005, which amended

various provisions of the Immigration and Nationality Act (INA)

applicable to asylum seekers. See Div. B. of Pub. L. No. 109-13,

119 Stat. 302-23 (2005).1

On remand, the BIA again affirmed the IJ's denial of

petitioner's application. The BIA held that Singh had failed to

establish past persecution or a well-founded fear of future

persecution on account of one of the five grounds enumerated in the

statute. See 8 U.S.C. § 1101(a)(42)(A) (identifying the five

grounds as race, religion, nationality, membership in a particular

social group, and political opinion). Specifically, the Board

found that Singh's injuries in the 1995 shooting were "only

coincidental" to the shooting of his father and that the 2002

attack on Singh was only for economic reasons. It therefore

concluded that Singh was ineligible for asylum, withholding of

removal, or CAT protection. This petition for review followed.

1
The REAL ID Act of 2005 applies to all applications that,
like Singh’s, were filed on or after May 11, 2005. In re S-B-, 24
I & N Dec. 42, 43 (BIA 2006); see also Sompotan v. Mukasey, 533
F.3d 63, 69 n.3 (1st Cir. 2008).

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 II.
A. Standard of Review

When the BIA both adopts the decision of an immigration

judge and adds a new ground for upholding the result, "this court

reviews the IJ's decision as though it were the BIA's to the extent

of the adoption, and the BIA's decision as to the additional

ground." Berrio-Barrera v. Gonzales, 460 F.3d 163, 167 (1st Cir.

2006). Whether the harm suffered by an asylum applicant was

inflicted "on account of" a protected ground is "generally [a]

question[] of fact." Sompotan v. Mukasey, 533 F.3d 63, 68 (1st

Cir. 2008). We review factual findings underlying the denial of

asylum using the deferential substantial evidence standard, Sunoto

v. Gonzales, 504 F.3d 56, 60 (1st Cir. 2007), and we must "uphold

the BIA's decision 'unless any reasonable adjudicator would be

compelled to conclude to the contrary.'" Silva v. Gonzales, 463

F.3d 68, 72 (1st Cir. 2006)(quoting 8 U.S.C. § 1252(b)(4)(B)).

B. Eligibility for Asylum

To establish eligibility for asylum, an alien must show

that he is unwilling or unable to return to his country of origin

"because of persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular

social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A).2

2
While the IJ expressly ruled that the discrimination Singh
described was not sufficiently severe to constitute past
persecution or provide a basis for a well-founded fear of future
persecution, we, like the BIA, do not reach the issue. As we shall

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The REAL ID Act added two important elements to the alien’s burden

of proof.

First, under the REAL ID amendments, the alien must show

that "race, religion, nationality, membership in a particular

social group, or political opinion was or will be at least one

central reason for persecuting the applicant." REAL ID Act §

101(a)(3), 8 U.S.C. § 1158(b)(1)(B)(i) (emphasis added). Even

before the passage of the REAL ID Act, petitioners were required to

prove a nexus between the alleged persecution and one of the

statutory grounds. INS v. Elias-Zacarias, 502 U.S. 478, 483

(1992). Courts required a showing that the persecution the alien

suffered was, or would be, based "at least in part" on an

impermissible motivation. Sanchez Jimenez v. U.S. Atty. Gen., 492

F.3d 1223, 1232-33 (11th Cir. 2007).

While the Act did not "radically alter[]" this standard,

In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 214 (BIA 2007), the REAL

ID Act clarified the petitioner's burden to show that at least one

of the statutory grounds was "one central reason" for the

persecution. In many cases, of course, persecutors may have more

than one motivation. In such "mixed motive cases," the law now

requires that the protected ground be "one central reason" for the

explain, petitioner's application for asylum fails because he was
unable to show that the attacks he faced, whether or not
constituting persecution, were motivated by one of the statutory
factors.

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mistreatment, and that it not be "incidental, tangential,

superficial, or subordinate to another reason for harm." In re J-

B-N-, 24 I. & N. Dec. at 214.

For obvious reasons, a petitioner is not required to

provide direct proof of motive, but must present some evidence on

the subject due to its importance in the statutory scheme. Babini

v. Gonzales, 492 F.3d 20, 22-23 (1st Cir. 2007) (quoting INS v.

Elias-Zacarias, 502 U.S. 478, 483 (1992). Often, the BIA evaluates

several potential motivations and must rely on limited evidence to

determine if a statutory ground was "one central reason for

persecuting the applicant." Given the deferential nature of our

review, the BIA's conclusion will stand on appeal, unless the

evidence compels a contrary result.

The second REAL ID Act provision which prompted our

remand of this case to the BIA addresses the role of corroborating

evidence in asylum proceedings. See 8 U. S. C. §

1158(b)(1)(B)(ii). It provides that an applicant's testimony alone

"may be sufficient to sustain [his] burden without corroboration,

but only if the applicant satisfies the trier of fact that the

applicant's testimony is credible, is persuasive, and refers to

specific facts sufficient to demonstrate that the applicant is a

refugee." Id. If the IJ determines that the alien should provide

evidence to corroborate otherwise credible testimony, that evidence

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"must be provided unless the applicant does not have the evidence

and cannot reasonably obtain the evidence." Id.

On this issue, Singh contends that, because the BIA did

not make an explicit finding that he lacked credibility, he is

entitled to a rebuttable presumption of credibility on appeal, thus

making the IJ's demand for additional corroborating evidence

erroneous. INA §§ 208(b)(1)(B)(iii), 241(b)(3)(C). Although the

IJ and BIA both ruled that Singh's testimony was insufficiently

corroborated, we need not address this issue because we agree with

the BIA that petitioner failed to prove a sufficient nexus between

his persecution and one of the statutory grounds.

III.

In its second review of the case, the BIA found that the

harassment described by petitioner did not meet the "one central

reason" standard. Its decision was based primarily on its

evaluation of the evidence concerning the two incidents in which

Singh suffered significant harm. First, the BIA found that Singh

only sustained injuries during the 1995 attack on Rachhpal because

he happened to be in close proximity to his father, and not because

he was individually targeted for his beliefs or characteristics.

Second, the Board concluded that the attackers responsible for the

2002 beating were economically motivated, and did not single out

petitioner because of his political beliefs or family

relationships. While the analysis for the two episodes is not

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identical, the Board supportably concluded that the harm suffered

by petitioner was not "on account of" one of the statutorily

protected grounds in either instance.

Singh fails to marshal sufficient evidence to show that

the injuries he suffered in the 1995 attack were in any way a

result of his own political opinions or social group. Instead, he

argues that because the BIA was willing to believe that his father

was attacked on the basis of his political activity, this

determination of motivation should also apply to the harm Singh

suffered. Singh contends that Rachhpal’s political opinions should

be imputed to him, based on a pattern of harassment of his whole

family by the Babbar Khalsa. Under Singh's theory, his nuclear

family would be considered a social group, and Singh's affiliation

with them would thus be the factor motivating the violence he

endured.

We have previously considered claims citing imputed

political opinion as the basis for persecution, and have held that

"[a]n imputed political opinion, whether correctly or incorrectly

attributed, may constitute a reason for political persecution

within the meaning of the Act."3 Vasquez v. INS, 177 F.3d 62, 65

(1st Cir. 1999) (quoting Ravindran v. INS, 976 F.2d 754, 760 (1st

3
This precedent addresses Section 106(a) of the INA, 8 U.S.C.
§ 1105a(a), which predated the REAL ID Act, but the statutory
amendments to the immigration law made no changes that would impact
the way in which political opinions are imputed.

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Cir. 1992)). However, we have also held that fear of persecution

based on a relative's political activities is not reasonable where

there is no evidence establishing that the petitioner himself was

ever persecuted as a result of those activities or that "the

government has a general practice of persecuting extended family

members." Ravindran, 976 F.2d at 759.

Petitioner presents insufficient evidence that his family

was targeted as a result of his father's political activities.

Specifically, we note the Babbar Khalsa's treatment of Singh’s

mother as reflecting the groups's general attitude toward members

of Singh's family who did not speak out against them. Singh's

mother was not targeted in the attacks and was only approached by

the militants when they were seeking food. This fact suggests that

the Babbar Khalsa did not have a practice of persecuting the entire

family, and that, even if Singh’s father was abused primarily for

his political opinions, the separatists did not impute his views to

the rest of the family. Nor has Singh presented any evidence that

he has been subject to any persecution in the many years following

this attack beyond the repeated harassing phone calls. Besides

voting in a local election in 2002, he was not politically active

in India. The BIA's determination that neither Singh’s political

opinion nor his membership in his family was a central reason for

the attack in 1995 was supported by substantial evidence.

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 Singh’s argument that he experienced persecution in 2002

when he was beaten by members of the Babbar Khalsa also fails on

"central reason" grounds. The record contained sufficient evidence

for the BIA to uphold the IJ's finding that this attack was

prompted primarily by economic motivations. Statements of

perpetrators are a crucial factor to be considered in determining

motive, In re S-P-, 21 I. & N. Dec. 486, 494 (BIA 1996), and Singh

reported multiple such indicators of his attackers' intent. He

testified that during the assault, he heard Jasbeet encourage the

attackers to kill him so that "everything would be ours, his home,

his property." In addition, he testified that during the harassing

phone calls, the Babbar Khalsa would tell him that they were the

ultimate heirs of the land he possessed. The conclusion that they

were economically motivated was further reinforced by the fact that

after Singh left India in 2004, the militants moved to partially

occupy his empty house. To offset these statements, Singh offers

only his own conjecture that the attack was linked to his father's

political beliefs. This conjecture does not undermine the Board's

finding that the attackers were driven by a desire to "control

[Singh’s] real property," and not "an enumerated ground of

persecution."

In short, no evidence suggests that Singh was an intended

target of the 1995 shooting on account of his father’s political

affiliations. As for the 2002 beating, the evidence supports the

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BIA's conclusion that the militants were motivated primarily by

economic factors. Hence there is no basis on which to overturn the

BIA’s decision.

IV.

Singh also seeks withholding of removal and protection

under the CAT. These claims place a higher burden of proof on the

petitioner than a counterpart claim for asylum. These forms of

relief require the petitioner to prove that it is "more likely than

not" he would face persecution or torture if he returned to his

country. Guillaume v. Gonzales, 504 F.3d 68, 71 n.2 (1st Cir.

2007). Because Singh fails to establish his eligibility for asylum,

his claims for withholding of removal and protection under the CAT

necessarily fail to meet this higher threshold.

The petition for review is denied.

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