Lead Opinion
OPINION
Jаgtar Singh, a native and citizen of India, petitions for review of a Board of Immigration Appeals (BIA) order concluding that he is ineligible for withholding of removal. The sole question before us is whether substantial evidence supports the BIA’s determination that the government showed that there has been a fundamental change in circumstances such that Singh’s life or freedom will not be threatened on account of his race, religion, nationality, membership in a particular social group, or political opinion if he is removed to India. Because substantial evidence supports the BIA’s decision, we deny the petition for review.
I
We begin by reciting the facts offered by Singh during his testimony before the Immigration Judge (IJ) and in his supporting declarations. Although the IJ determined that Singh’s testimony was not credible, the Board did not expressly adopt that finding in its order dismissing Singh’s appeal. ‘When the BIA’s decision is silent on the issue of credibility, despite an IJ’s explicit adverse credibility finding, we may presume that the BIA found the petitioner to be credible.” Krotova v. Gonzales,
On August 18, 1999, Singh entered the United States without inspection. The Immigration and Naturalization Service (INS) served him with a notice to appear. Singh conceded that he was subject to removal and applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The IJ held a merits hearing on September 9, 2003.
Singh is a Sikh who was born in India’s Punjab province. In March 1993, he joined the Akali Dal (Mann) political party, which supported the creation of an independent state for Sikhs in India called Khalistan. Singh owned trucks that he used to transport party members to rallies and to carry pro-Khalistan political posters.
On May 4, 1994, police stopped Singh while he was driving home from a political
On November 2, 1995, police detained Singh as he was returning from a political rally. They removed a banner from his truck that advertised the political rally and took him to the station. There, they detained Singh for ten days and beat him with sticks and straps. Once again they questioned Singh about aiding militants and terrorists. And once again police released Singh only after his family and village sarpanch paid a bribe.
On June 7, 1997, police arrested Singh for a third time. A bomb blast had occurred in the city where Singh was working, and police detained him at a checkpoint because he is a Sikh. Police questioned him about the blast for five days before transferring him to anothеr station where he was beaten severely. After Singh fell unconscious from the beating, police delivered him to the hospital. He was released when a friend bribed the officer who was keeping watch. Singh fled the area and eventually entered the U.S. without inspection. In the meantime, Indian police continued to question and harass his wife, father, uncle, and cousin.
The IJ denied Singh’s application for asylum on the basis that it was time barred. The IJ further found that Singh’s testimony was not credible or corroborated. And he concluded that Singh was arrested for allegedly violating laws of general applicability rather than persecuted on account of a protected ground. The IJ therefore denied Singh’s request for withholding of removal and protection under the CAT. The BIA entered an order affirming the IJ’s decision to deny all three forms of relief.
In an unpublished memorandum disposition, we granted in part Singh’s petition for review. Singh v. Keisler,
We remanded the case to the BIA, id., which in turn remanded to the IJ for further findings concerning Singh’s eligibility for withholding of removal. The IJ held a hearing on July 21, 2008. Singh testified that his wife and father had told him that police continued to visit their homes to inquire about his whereabouts. They demanded to know his contact information in the U.S. and left only after his father bribed them. He also submitted declаrations from his wife, father, and village sarpanch stating that Indian police were still looking for him. The government responded by pointing out inconsistencies in Singh’s testimony and introducing documents indicating that conditions in India had changed for Sikhs who were members or supporters of groups like Akali Dal (Mann).
On May 26, 2010, the BIA dismissed Singh’s appeal. The Board did not adopt the IJ’s adverse credibility determination. Instead, the BIA agreed with the IJ’s assessment that “[t]he country information submitted by the Department of Homeland Security (DHS) reflects that conditions in India have greatly improved.” The Board quoted country reports from the U.S. Department of State and the U.K. Home Office to this effect. And it explained that “the Immigration Judge properly analyzed how changed country conditions affected [Singh’s] specific situation and was sufficiently individualized to provide substantial evidence for the conclusion that [Singh] failed tо establish eligibility for relief.”
II
“We review petitions for review of the BIA’s determination that a petitioner does not qualify for asylum or withholding of removal under the highly deferential ‘substantial evidence’ standard.” Zetino v. Holder,
Ill
Because we previously determined that Singh had endured past persecution, Singh,
The IJ and the BIA concluded that there had been a fundamental change in circumstances after interpreting and applying the country conditiоn evidence submitted by the parties. Both the IJ and the BIA cited the State Department’s 2008 issue paper on the treatment of Sikhs in India, which explains that “[t]oday, conditions for Indian Sikhs differ dramatically from those of the 1980s and 1990s. Sikhs have ascended to the highest level of the Indian government.” See Kumar v. INS,
The government also introduced the State Department’s 2007 country report on human rights practices in India. The thirty-four page report is devoid of any mention of recent or ongoing persecution of Sikhs, even though it extensively catalogs threats to human rights encountered by various political, religious, and ethnic groups in India. See Sowe v. Mukasey,
The reports acknowledge, however, that the government made “little progress” in holding hundreds of other police officers accountable for causing the death and disappearance of Sikhs in the 1980s and 1990s. India’s slow and uneven progress in prosecuting those responsible for past persecution is troubling. But.it does not mean that the Board’s decision is not supported by substantial evidence. We have repeatedly recognized that the IJ and the BIA are entitled to rely on country reports that contain mixed messages, ambiguities, or inconsistencies. See Gonzalez-Hernandez v. Ashcroft,
The evidence introduced by the government is sufficiently individualized to address Singh’s claim that he will be persecuted because of his past involvement with the Akali Dal (Mann) party. See Popova v. INS,
The CIS reports, like the State Department’s country report, contain some ambiguous and inconsistent lаnguage.
This is not a case where the record contained only limited information about the circumstances faced by the petitioner or consisted solely of unreliable or uncorroborated reports. See, e.g., Smolniakova v. Gonzales,
The scope and precision of the country report evidence in the record distinguishes this case from the cases where we have deemed such evidence insufficient to support a determination that there has been a fundamental change in circumstances. See, e.g., Mutuku v. Holder,
The dissent relies on our unpublished memorandum disposition in (Kapur) Singh v. Holder,
In addition to requiring sufficiently individualized evidence of changed circumstances in the petitioner’s country of origin, see, e.g., Popova,
Here, both the IJ and the BIA expressly applied the record evidence to Singh’s own individual circumstances. As noted, the orders cited the relevant portions of the issue papers published by the U.S. State Department and the U.K. Home Office. The excerpts quoted by the agency stated that it was unlikely that an individual would be persecuted either because he is a Sikh or because he is a member or supporter of political groups like Akali Dal (Mann). For example, the IJ noted that the U.K. operational guidance note “states that even actual members of militant separatist groups are not likely to be able to establish persecution.” He then applied this evidence to Singh’s particular circumstances, explaining that “[t]he most [Singh] claims is that police suspected him of aiding members a decade ago. But if the members themselves are not subject to persecution, it makes no sense to believe that mere sympathizers are at risk of persecution.” The IJ once again revealed that he had considered the specific grounds for possible persecution raised by Singh when he concluded that “it is clear from the foregoing [evidence] that [Singh’s] mere membership in the Akali Dal Mann Party provides no basis, in today’s India, for a finding that he will be persecuted.”
In short, the agency identified the particular grounds on which Singh claimed he might be persecuted and cited specific relevant evidence showing that persecution on those grounds is unlikely. That is the very definition of the individualized determination that our case law requires. See Chand v. INS,
The agency’s application of the country condition evidence to Singh’s testimony distinguishes this case from the cases where we have held that the analysis is not sufficiently individualized. See, e.g., Ali v. Ashcroft,
Furthermore, the IJ appropriately weighed the country reports against Singh’s testimony and the affidavits submitted by Singh’s wife, father, and village sarpaneh stating that Indian police continue to search for him. As noted, we decline to adopt the IJ’s adverse credibility determination because the BIA did not expressly do so. But “[t]he general principle requiring the factfinder and a court of appeals to accept a petitioner’s factual contentions as true in the absence of an adverse credibility finding does not prevent us from considering the relative probative value of hearsay and non-hearsay testimony.” Gu v. Gonzales,
The crux of our disagreement with the dissent appears to result from our straightforward application of the principle that the agency is entitled to weigh conflicting evidence. See Sharma,
We note again that the BIA did not adopt the IJ’s determination that Singh’s testimony was not credible. But there is a difference between an adverse credibility determination, on the one hand, and a decision concerning how to weigh conflicting evidence, on the other hand. Our decisions in Sharma and Gu plainly set out this distinction. See Sharma,
In Aden, we offered an example that is particularly useful here: “[I]f, hypothetically, the IJ said ‘you seem like an honest person, but the country report says that the [clan of which the petitioner is a member] is treated with great respect and nev
The dissent departs from our case law when it requires the country reports to reveal “country conditions for individuals previously persecuted and currently wanted by police” without accounting for the fact that the agency appropriately discounted the evidence showing that Singh is “currently wanted by the police.” Dissenting Op. at 838. The dissent proposes what amounts to a two-step framework: first, the petitioner’s evidence that he will be persecuted is given full weight; and second, the country report evidence is analyzed through the lens of the petitioner’s evidence. This novel approach disregards the cases where we have permitted the agency to compare country report evidence with the petitioner’s evidence that he will be persecuted and to conclude that the petitioner’s evidence is not entitled to much weight. See Gu,
Of course there might be instances where the agency weighs conflicting evidence in a manner that is not supported by substantial evidence. We have considered and rejected that possibility here in light of the comprehensive and precise country reports showing that individuals are unlikely to be persecuted because of their involvement with Sikh separatist groups. The agency properly performed its core functions of weighing conflicting evidence, bringing its expertise to bear, and articulating the rationale underlying its decision. We have no basis to disturb the agency’s determination.
IV
The IJ and the BIA determined that the government showed that there has been a fundamental change in circumstances such that Singh’s life or freedom would not be threatened on account of his race, religion, nationality, membership in a particular social group, or political opinion if he were removed to India. We conclude that this decision is supported by substantial evidence. Accordingly, the petition for review is DENIED.
Dissenting Opinion
dissenting:
I respectfully dissent from the majority opinion denying petitioner Jagtar Singh’s petition for review beсause, in my view, that denial is based on country reports that do not rebut the presumption of future persecution resulting from this court’s ruling in the prior appeal that petitioner suffered past persecution. Singh v. Keisler,
On remand from this court’s prior order granting review of the petition for withholding of removal, the government attempted to rebut the presumption of future persecution with a 2008 U.S. State Department Issue paper, a 2007 State Department Country Report (together, the “U.S. Country Reports”), a 2007 United Kingdom Home Office operational guidance note (“the U.K. Report”), and two reports from the United Statеs Citizenship and Immigration Services (“USCIS”). The IJ (as affirmed by the BIA) found that changed country circumstances constituted substantial evidence that petitioner’s “mere membership in the Akali Dal Mann Party provides no basis, in today’s India, for a finding that he will be persecuted.” I respectfully disagree with the majority’s approval of this conclusion because this petitioner does not claim persecution “merely” based on his past political activities (for which he was arrested and tortured), but rather that he has been and continues to be persecuted individually regardless of changed general circumstances.
The IJ erroneously focused on the portions of the tendered country reports that detailed then-current conditions for individuals affiliated with Sikh separatist political movements. These reports provided little information relevant to petitioner’s precise claim: that the police have specifically targeted him because of his past political activities and suspected support of militants, and that they continue to target him and his family. To the extent that the reports touched on country conditions for individuals previously persecuted and currently wanted by police, they support petitioner’s claim.
The UK Report includes a section on Sikhs that spans a few pages. The Report concludes that Sikhs no longer constitute a persecuted group; but, as noted above, petitioner’s claim is not that he will be persecuted simply because he is a Sikh or because of the general political situation. Petitioner’s claim is grounded in his previous interactions with Punjabi police (which this court has credited in his first appeal) and his fear of continued persecution (which this court has directed to presumed). The UK Report supports petitioner’s claim by noting that the human rights abuses at the time the report was written were different from the abuses of the 1980s because “now the abuse was individual and had specific reasons.” Consistent with that observation, petitioner offered evidence that shows that he has been individually targeted by the police, not that he is generally at risk because of his political affiliation.
The U.K. Report further states that it is unlikely that “individuals associated at a low or medium level with Sikh militant groups would be able to establish a well-founded fear of persecution.” The BIA quoted this language from the UK Report as strong evidence that country conditions had changed. That is not, however, the posture of this case; this court has already ruled that this petitioner has established a well-founded fear of individual persecution. Singh v. Keisler,
Further, in an unpublished opinion in Singh v. Holder,
[t]he United Kingdom’s India Country Report states that the Sikh militant movement is ‘no longer active in the Punjab,’ a fact irrelevant to whether persons who were members in the now-dormant movement would face persecution were they to return. In fact, the Report indicates that they would face persecution, stating that persons like Singh, who have a ‘local history of abuse at the hands of the police,’ or are ‘militant[s],’ still face persecution. There is also no affirmative evidence in the State Department’s report on human rights practices in India to show that country conditions relevant to Singh have сhanged. [M]
Singh v. Holder thus succinctly states the flaws in the evidence presented by the government and is wholly inconsistent with the majority opinion in the instant case.
As the majority notes, the 2007 and 2008 U.S. Country Reports barely mention the state of Punjab or Sikhs at all, with the exception of a discussion of the investigation into police misconduct in the mid-1990s. Under Lopez v. Ashcroft,
Although the U.S. Country Reports do mention serious problems in other Indian states, they do not offer any support for the government’s argument that the country has changed such that petitioner no longer faces a threat to his life based on his past political affiliation and encounters with police. The omission of any statement about Punjab or Sikhs cannot be construed an affirmative statement that the country has changed for those individuals. In fact, the IJ criticized the country condition evidence produced by petitioner for its failure to specifically mention human rights abuses in Punjab. The IJ therefore cannot properly find at the same
Neither USCIS report mentioned by the majority is discussed in the IJ or BIA opinions. The first USCIS position paper is titled “India: Information on Treatment of Members of the Akali Dal (Mann) Party in Punjab.” The first question рresented is whether Punjab police arrest or otherwise mistreat Sikhs solely on account of membership in the Akali Dal (Mann) party, or for expressing support for the party. Again, this is not petitioner’s claim; he does not claim that the police would arrest him randomly because of his political affiliation. His claim is that they are already targeting him based on his past activity and will continue to do so if he returns. This is entirely separate from the first question addressed in the report.
The next material question addressed in the first USCIS report is whether Punjabi Sikhs are targeted solely for expressing support for the Khalistani cause. The report concludes that Sikhs are no longer targeted simply for holding pro-Khalistani views. It also notes, however, that “Punjabi Sikhs are likely targeted at times by local officials for holding pro-Khalistani views, but this is not done systematically.... any such targeting is probably the work of rogue officers at the local levеl.” This paper thus provides little support for the government’s position, and instead demonstrates that the police do in fact target individuals, as petitioner has alleged.
The second USCIS position paper is titled “India: Information Relocation of Sikhs from Punjab to Other Parts of India.” This paper addresses whether Punjab police pursue certain Sikhs who have relocated to other parts of India. The paper concludes that “[o]bservers generally agree that Punjab police will try to catch a wanted suspect no matter where he has relocated in India.” The position paper also notes that some observers report that police pursue only “high-profile” individuals. Although the paper focuses on militants and members of armed opposition groups, one prominent human rights lawyer stated that “[a] Sikh ... who [like petitioner] has been arrested one or more times on suspicion of being involved in political militancy, even a person suspected of such an involvement — whether or not the person has ever been actually arrested — is likely to be pursued wherever he or she goes.” Thus, the USCIS paper supports petitioner’s claim because, as this court found in his prior appeal, he was arrested and tortured on multiple occasions based on his suspected support of militants, and his testimony that police continue to visit his home is consistent with the practices detailed in the USCIS report.
Other than the second USCIS paper, the collective reports offer very little insight into the situation faced by Sikh individuals who, like petitioner, have suffered persecution in the past and continue to be subject to police harassment. This is a substantially different issue than whether “rank and file” members of Akali Dal Mann are persecuted at random. The only report that discusses individuals who have suffered past persecution is the ten-year-old USCIS report regarding the extent to which police pursue individuals who have already been arrested as a result of their affiliation with political and militant groups, and neither the IJ nor the BIA relied on this report. The ambiguous information contained in the reports is not sufficient to establish by a preponderance of the evidence, as 8 C.F.R. § 208.13(b)(l)(i)(A) requires, that conditions have changed to alleviate petitioner’s well-founded fear of persecution or to overcome the presumption of future perse
Moreover, the IJ erroneously failed to give аny weight to petitioner’s testimony or the affidavits from his family members because the declarants had not been questioned about the accuracy of their statements. Requiring cross-examination on these types of supporting affidavits is imposing a substantially excessive burden on an applicant. When the burden rests with the government to rebut the presumption of future persecution, it is incongruous that the petitioner should have to not only offer witnesses and evidence, but then secure their availability for cross-examination. The IJ appears to have drawn every inference against petitioner, instead of appropriately placing the burden with the government.
Finally, the IJ and the majority fault the evidence petitioner presented as unreliable and containing hearsay statements. Petitioner produced sworn affidavits from family members and a local politician regarding their first-hand observations of police conduct and conversations with Indian law enforcement. Because of the IJ’s doubts regarding the validity and accuracy of the claims, he accorded petitioner’s evidence very little weight. Yet the country and USCIS reports submitted by the government, although official documents, are rife with hearsay-within-hearsay. These papers cite the opinions and speculations of a handful of “India experts,” unnamed human rights lawyers, an “expert on religious militancy,” and one U.S.-based political scientist. Although the IJ found those statements more “objective” than petitioner’s family’s sworn statements, they are hardly the kind of detailed and individualized inquiries required to address the record presented in the instant case. See Singh v. Holder,
Because I find: (a) that substantial evidence does not support the IJ and BIA’s conclusion that the government has adequately demonstrated changed country circumstances; (b) that the IJ and BIA incorrectly shifted the burden of proof to petitioner rather than the government; and (e) that the IJ and BIA failed to conduct the individualized analysis required by law, I would grant the petition for review, direct the BIA to grant petitioner’s application for withholding of removal, and remand for consideration of a discretionary grant of asylum.
Notes
. 8 C.F.R. §§ 1208.16(b)(l)(ii).
. The UK Report submitted in the instant case draws heavily on the Country Report described in Singh v. Holder, and in fact uses the same language quoted in the Singh v. Holder opinion. Both reports rely heavily on a March/April 2000 fact-finding mission to Punjab by the Danish Immigration Service in drawing their conclusions about the then-current situation of Sikhs in Punjab.
. Although the majority criticizes this citation to an unpublished opinion, my reference to Singh v. Holder is not as binding precedent, but as a case that is relevant and instructive to the instant case. Circuit Rule 36-3 clearly allows for the citation of unpublished decisions in accordance with Federal Rule of Appellate Procedure 32.1.
.I also note that this is no more informative of country conditions than a claim that racism does not exist in the United States because Barack Obama is president.