On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A078-668-982
The opinion of the court was delivered by: Thomas, Circuit Judge:
April 13, 2011-San Francisco, California
Before: Sidney R. Thomas and Johnnie B. Rawlinson, Circuit Judges, and Cormac J. Carney, District Judge.*fn1
Concurrence by Judge Rawlinson
In this petition for review, we consider whether the petitioner established changed or extraordinary circumstances that would excuse his untimely application for asylum. When the agency addressed this question, it applied incorrect legal standards. Accordingly, we grant Singh's petition for review and remand this matter to the BIA so that it may apply the correct standards.
Bhupinder Singh, a citizen and national of India, entered the United States on August 26, 1999, as a nonimmigrant visitor with initial authorization to remain until September 24, 1999. He fled India on account of abuse he suffered at the hands of police in India, who mistakenly believed that he sympathized with terrorists. The police arrested Singh, without a warrant, three times. Each time, they detained him for a lengthy period of time, up to four days, and questioned him about his activities and knowledge of suspected terrorists. When they detained him, the police severely beat Singh with sticks and leather straps until he lost consciousness. He required medical treatment after each of the three arrests. Singh was released from his first arrest after his parents guaranteed the police that they would watch over him. Singh was released from his third arrest only after his father paid a 60,000 rupee bribe to the police.
After being in the United States for about a month, Singh applied for an extension of his nonimmigrant visa on September 30, 1999. Singh claimed he wanted to stay in the United States because it was not safe to return to India. He hoped that, while he was in the United States, his family could arrange a "settlement" or "compromise" with the Indian police that would allow him to return without being harassed or abused.
The former Immigration and Naturalization Service (now part of the Department of Homeland Security)*fn2 approved Singh's visa-extension request nearly a year later on August 17, 2000, retroactively effective. While his first request was pending, Singh submitted a second request to extend his visa to August 24, 2000.
Not long after Singh filed his second request, Indian police arrested Singh's wife at her home. According to Singh's wife's written statement,*fn3 the police came to her house late at night on September 6, 2000, asking questions about him and accusing him of being a militant. They then took Singh's wife into custody and "started slapping and dragging [her] and told [her] that now your husband will come to the police station." Singh's wife told the police she would file a complaint against them. The police then beat her with "wooden rods and told [her] that in the police station they were going to teach [her] how to file a complaint." Once at the police station, Singh's wife claims the officers locked her in a room, beat her again, and raped her.
Singh filed his application for asylum on November 20, 2000, two-and-a-half months after his wife's arrest. At the time, Singh's second request for a visa extension was still pending.*fn4
Because Singh's application for asylum was filed more than a year after he had first entered the United States, his application was untimely. 8 U.S.C. § 1158(a)(2)(B). The Department of Homeland Security referred his application to the immigration court and placed him in removal proceedings. The Department charged Singh as removable under 8 U.S.C. § 1227(a)(1)(B) for remaining in the United States longer than his visa permitted.
Singh conceded removability and sought asylum, withholding of removal, and protection under the Convention against Torture. The immigration judge ("IJ") found Singh's testimony credible, and he granted Singh's request for withholding of removal to India and protection under the Convention Against Torture.
As to Singh's asylum claim, the IJ concluded that Singh "has in fact been the victim of past persecution by inferences of a government who believes that he is an enemy, who believes he is politically affiliated with a community that seeks an independence." And:
[B]ased upon past events it is more likely than not, assuming the truth of Mr. Singh's representations, that if he returns to his homeland he will be subject to the same form of maltreatment. Acts of persecution[,] because of political opinion[,] has [sic] been imputed to him, and there clearly exists a pattern and practice as represented in his application.
Singh's application was untimely, but he argued that his wife's arrest was a "changed circumstance" that excused the filing delay under 8 U.S.C. § 1158(a)(2)(D).*fn5 The IJ disagreed because Singh did not provide "clear and convincing" evidence that the settlement negotiations amounted to a changed circumstance (the IJ did not consider whether the arrest of Singh's wife was ...