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Singh v. Holder

United States Court of Appeals, Ninth Circuit

August 26, 2014

KAMALPAL SINGH, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General, Respondent

Page 1154

[Copyrighted Material Omitted]

Page 1155

Submitted, San Francisco, California: February 13, 2014, [*].

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A094-990-061.

SUMMARY[***]

Immigration

The panel granted a petition for review of the Board of Immigration Appeals' denial of asylum and withholding of removal to a citizen of India who asserted claims for past persecution and a fear of future persecution by police on account of his imputed political opinion.

The panel held that the evidence compelled the conclusion that petitioner's imputed political opinion was at least one central reason police targeted him where during interrogation police called him a traitor and repeatedly accused him of working against the government.

The panel further held that indirect evidence of petitioner's association with a suspected terrorist supported the conclusion that he was persecuted because of an imputed political opinion. The panel explained that although the REAL ID Act eliminated the presumption that persecution is politically motivated in the absence of any evidence of a legitimate prosecutorial purpose, an applicant may still meet his burden of establishing nexus by introducing evidence that he was wrongly accused of being a terrorist.

The panel held that mixed-motives analysis applies to cases governed by the REAL ID Act, and that even if police are engaged in a legitimate investigation, an applicant may establish nexus by showing that he was persecuted both because of legitimate investigatory reasons and because of a protected ground, so long as a protected ground was at least one central reason for the harm.

District Judge George concurred with the opinion insofar as it remanded for the granting of relief pursuant to the Convention Against Torture. Judge George dissented from the majority's holding that the evidence compels the conclusion that a central reason for petitioner's persecution was an imputed political opinion. George wrote that he believes that the evidence, both direct and circumstantial, shows that the reason police targeted petitioner was an effort only to obtain information about a suspected terrorist.

Pardeep Singh Grewal, Law Office of Pardeep Singh Grewal, Castro Valley, California, for Petitioner.

Tony West, Assistant Attorney General; James E. Grimes, Senior Litigation Counsel; and Janice K. Redfern, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before: Stephen Reinhardt and Sidney R. Thomas, Circuit Judges, and Lloyd D. George, Senior District Judge.[**] Opinion by Judge Reinhardt; Partial Concurrence and Partial Dissent by Judge George.

OPINION

Page 1156

REINHARDT, Circuit Judge:

Kamalpal Singh, a 51-year-old native and citizen of India, petitions for review from the BIA's denial of his application for asylum and withholding of removal based on imputed political opinion. Singh entered

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the United States in 2006 after fleeing egregious physical abuse by the local police in his town of Jullandar in the state of Punjab. Although the BIA affirmed the immigration judge's (IJ) decision to grant Singh relief under the Convention Against Torture (CAT), it held that an imputed political opinion was not a central reason for the police brutality against him and denied his applications for asylum and withholding of removal. Relying in part on our decision in Dinu v. Ashcroft, 372 F.3d 1041 (9th Cir. 2004), the BIA concluded that the Punjabi police had legitimate reasons for their arrest and detention of Singh. The government did not contest the IJ's decision to grant Singh relief under CAT, and the BIA, accordingly, affirmed this portion of the IJ's decision. We grant Singh's petition and hold that the record compels the conclusion that Singh is eligible for asylum and entitled to withholding of removal.

I.

Singh's troubles began shortly after his domestic servant, Jabed Khan, left for vacation and failed to return. After being introduced to Khan by a friend's servant, Singh hired Khan to perform various domestic tasks, including caring for Singh's mother, taking his children to school, running errands, and cooking for the family. Singh testified at his hearing that Khan was " a very nice man," who " never abused anyone, [and] never used bad language." Singh also testified that Khan received visitors who appeared to be Khan's friends and relatives from his home state of Jammu and Kashmir. In addition to these visits, Khan occasionally used his vacation from work to visit his village for periods of a week to ten days. After two years of employment with Singh, however, Khan left for vacation and never returned.

Shortly after Khan's departure in May 2006, the police came to Singh's home and arrested him at around 4:30 in the morning. Four police officers took him to the police station and detained him for two days. They interrogated him about Khan, and told him that Khan was a Kashmiri terrorist. They then accused Singh of helping the terrorists and of knowingly employing Khan despite his connections to terrorism. They asked Singh what terrorist activities were being planned and accused him of being a " traitor" who was " working against the government."

The police did not limit themselves to questioning, however. During the course of the interrogation, Singh was repeatedly subjected to egregious physical abuse. One officer grabbed his hair and struck him repeatedly in the face. The other officers then pushed him to the ground while one held his hands together and another restrained him by placing his knee on Singh's neck. At the same time, another officer beat Singh with a bamboo stick and leather belt. The police beat him for ten to fifteen minutes at a time and then continued interrogating him. When Singh apparently persuaded them that he had no information to offer them, the officers stripped his pants off and used them as a pulley by which they hung him upside down until he lost consciousness. The police then alternated between hanging Singh upside down and beating him. He was beaten about five or six times during the course of his two-day detention.

Following the physical abuse and the extended questioning, the officers refused to let Singh go, and he was released only when his family and neighbors bribed them with 50,000 rupees.[1] The officers

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warned Singh not to talk about what had happened at the station. Once he was released, he was not able to walk because of the beatings and he had to seek medical attention. Singh's doctor feared reprisal by the police, however, and refused to treat him at the hospital, instead going to Singh's house to provide medical care.

A few weeks later, at four in the morning, the police returned to Singh's home and arrested him a second time. The four officers began asking him about Khan again, and he told them that he had already given them all the information he had. The chief police officer slapped Singh and told the other officers to take him to the station to " make a man out of him there." He was taken to the interrogation room, thrown on the ground, and beaten while the officers asked him questions about Khan's whereabouts, his knowledge of terrorist activities, and his own role in assisting the terrorists. When he told the officers that he did not know anything, they threatened to kill him if he refused to answer. The officers again put Singh on the ground and beat him with a bamboo stick and leather belt. Over the course of his four days in detention, Singh was beaten eight to ten times. This time, Singh's family bribed the officers with 80,000 rupees in order to obtain his release.[2] Shortly after his second arrest and beatings, Singh fled to the United States.

During his hearing before the IJ, Singh testified that he feared returning to India because the police continued to look for him and to harass his family. Singh stated that the police went to his home 12 to 13 times after his departure for the United States. Once Singh had fled, the police targeted his wife, Sarpreet Kaur. They arrested her, took her to the police station, detained her for the night, and beat her. They asked her about Singh's whereabouts and about his activities against the government. Singh's family and neighbors bribed the police to have his wife released, this time paying 20,000 rupees.[3]

The facts described above are contained in Singh's testimony before the IJ, who found his testimony to be credible. Nonetheless, the IJ denied Singh's request for asylum and withholding of removal, because he concluded that Singh had not demonstrated a nexus between his persecution and a protected ground.[4] Relatedly, the IJ found that it was more likely than not that Singh would be tortured if returned to India and therefore granted his request for relief under CAT.

The BIA agreed with the IJ and affirmed his ruling that Singh had not established that an imputed political opinion was a central reason for his persecution by the Punjabi police. Relying in part on our decision in Dinu v. Ashcroft, the BIA held that the Indian government had a " legitimate reason to arrest, detain, and question" Singh, and that he was therefore ineligible for asylum. The government did not appeal the IJ's determination that Singh was entitled to relief under CAT, and the BIA affirmed the portion of the IJ's decision granting such relief. Singh filed a timely petition for review.

II.

We have jurisdiction over Singh's petition for review under 8 ...


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