Lead Opinion
Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge GEORGE.
OPINION
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
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 Jam-mu 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.
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.
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.
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.
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 U.S.C. § 1252.
A.
“It is settled law that an applicant may establish a political opinion for purposes of asylum relief by showing an ‘imputed political opinion.’” Kumar,
The Punjabi police attributed a political opinion to Singh during their interrogation and abuse of him. Testimony regarding a persecutor’s statements serves as direct evidence that the persecution was motivated by a political opinion imputed to the applicant. See Hu v. Holder,
In addition to the direct evidence of his persecutors’ statements, the indirect evidence supports Singh’s testimony that he was persecuted because of an imputed political opinion. Singh testified that the Indian police were interested in him because of his relationship to Khan, his domestic servant. An “applicant’s association with, or relationship to, people who are known to hold a particular political opinion” may serve as indirect evidence of an imputed political opinion. Garcia-Milian,
Yet, under the facts determined to be true by the IJ and affirmed as such by the BIA, Singh was not a terrorist, nor did he engage in antigovernment activities. He testified that he had no association with terrorists and did not participate in any such activity. He also stated that he did not know anything about Khan or have any information regarding Khan’s involvement with terrorist activities. Taking Singh’s testimony as true, as we must, Singh was falsely accused of being a terrorist and holding antigovernment views because of his association with Khan. The Punjabi police beat him and hung him upside down until he lost consciousness because they imputed Khan’s alleged political beliefs to him. Under our cases, this constitutes a nexus to a protected ground. See Kumar,
Our conclusion that the Punjabi police’s mistaken belief that Singh was a terrorist constitutes an imputed political opinion is supported by the legislative history of the REAL ID Act. The Act requires asylum applicants to demonstrate that the protected ground is “at least one central reason” for the persecution. Id. at 740. As the BIA has noted, Congress intended this amendment to eliminate the presumption previously applied by our court that persecution is politically motivated in the absence of any evidence of a legitimate prosecutorial purpose. See In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 214 n. 9 (BIA 2007). The elimination of the presumption restored the law to its prior state: the burden is on the asylum applicant to offer evidence as to the persecutor’s motive.
Although the REAL ID Act was intended to overrule our “presumption,” it affirmed our prior imputed political opinion cases in an important respect. We had previously held that persecution based on the mistaken belief that the individual is a terrorist is persecution on account of an imputed political opinion. See, e.g., Kumar,
The “central reason” standard will eliminate this presumption, and require aliens who allege persecution because they have been erroneously identified as terrorists to bear the same burden as all other asylum applicants, that is, they will have to offer direct or circumstantial evidence of motive, in accordance with Supreme Court precedent.
H.R.Rep. No. 109-72, at 165 (2005), 2005 U.S.C.C.A.N. 240, 290. Thus, the difference under the REAL ID Act is that an applicant must now introduce evidence to
Our decision in Dinu v. Ashcroft is not to the contrary, and the IJ and BIA’s reliance on that decision is misplaced. The facts and circumstances in Dinu are far different and of no relevance here. Dinu, who served in the military during the Romanian revolution, was arrested and investigated for his role in the massacre of civilians.
Here, Singh has presented direct evidence that he was arrested and severely beaten on account of the political beliefs that the Punjabi police imputed to him, and there is no evidence that any investigation of him was conducted for any other reason. The only connection between Singh and any possible wrongdoing was the mistaken belief that because he hired Khan as a servant, he must be a terrorist. Because Singh has presented direct evidence that the Punjabi police mistakenly believed him to be a terrorist, and there is no evidence that Singh was the subject of a legitimate investigation based on other grounds, Dinu’s holding is of no relevance here.
Although there is little if any evidence that the police in Singh’s case were engaged in a legitimate investigation, even if the investigation were legitimate, Singh could establish a nexus in this case. We have held that, under the REAL ID Act’s standard, a persecutor may be motivated by more than one central reason, and “an asylum applicant need not prove which reason was dominant.” Parussimova,
For these reasons, we hold that the evidence compels the conclusion that a central reason for the physical abuse to which Singh was subjected was an imputed political opinion and that he has established a nexus between that abuse and a protected ground.
B.
Because the evidence compels the conclusion that Singh has established a
Here, as we held in Fedunyak v. Gonzales,
C.
Singh is also entitled to withholding of removal. In order to establish entitlement to withholding of removal, an applicant must show that it is “more likely than not” that he will be persecuted on account of a protected ground. Id. at 1130. The BIA has held that Singh is more likely than not to be tortured if returned to India. Given our holding on the nexus question, Singh has necessarily demonstrated that he is more likely than not to be persecuted on account of an imputed political opinion and is entitled to withholding of removal. Id. at 1130-31.
III.
We conclude that Singh’s credible testimony compels the conclusion that an imputed political opinion was a central reason for his persecution by the Punjabi police, and that he has a well-founded fear of future persecution. Accordingly, we remand this case to the BIA with instructions that the Attorney General exercise his discretion whether to grant Singh asylum. We also remand for an order withholding removal of Singh and granting' relief under the Convention Against Torture.
The petition for review is GRANTED and REMANDED for the purposes described in the above opinion.
Notes
. In 2006, 50,000 rupees was the equivalent of approximately $1,100. At the time, Singh’s yearly salary appears to have been around 95,000 rupees.
. In 2006, 80,000 rupees was the equivalent of approximately $1,750.
. In 2006, 20,000 rupees was the equivalent of approximately $440.
.Singh originally claimed that he had been persecuted on account of his religion, his membership in a particular social group, and an imputed political opinion. His petition for review concerns only his claim of an imputed political opinion.
. The government also relies on Sharma v. Holder,
. Although we have stated that a lack of proper procedures and the use of torture may render law enforcement activities illegitimate, we need not consider those questions here. See Li,
. Contrary to the dissent, we hold that irrespective of any other reason for the police's persecution of Singh, the evidence compels the conclusion that one central reason for the persecution in this case was the belief on the part of the police that Singh held an antigo-vernment political opinion. That is the only reasonable justification for why the police called him a "traitor,” accused him of "working against the government,” and interrogated his wife regarding his "activities against the government.” To the extent that the dissent makes the extraordinary claim that the police could not have imputed a political opinion to. Singh because they interrogated him for information about Khan, such a claim is flatly at odds with our precedent. See, e.g., Kumar,
Concurrence Opinion
dissenting in part; concurring in part:
I respectfully dissent from the majority’s holding that the evidence compels the conclusion that a central reason for Singh’s persecution was an imputed political opinion. The evidence, both direct and circumstantial, shows that the reason for the police’s arrest and mistreatment of Singh was an effort only to obtain information about Khan, a suspected terrorist. Singh’s own testimony confirmed it. The IJ found that testimony credible, and integrated it
“To reverse the BIA finding we must find that the evidence not only supports that conclusion, but compels it,” INS v. Elias-Zacarias,
The IJ found that Singh testified credibly. “[WJithout an adverse credibility finding we accept a petitioner’s testimony as credible because ‘[a]ny other rule would put us in the position of second-guessing the credibility of the petition on appeal when no doubts have been raised by the Immigration Judge or the Board.’ ” Canjura-Flores v. INS,
At the removal hearings before the IJ, Singh testified that he “was only arrested because of Jabed Khan and they said he was a terrorist and police alleged that I was helping the terrorists.” During examination, the following exchanges also took place:
[Singh’s lawyer to Singh]:
Q: How were you treated [at the time of the second arrest]?
A: Immediately on arrival at the police station, they took me to the interrogation room and they threw me on the ground and started to beat me up and they were repeating all those four questions all over again. He — they, were asking those questions and I told them that I do not know anything about Jabed Khan and their chief man, he said, beat this, this person again because he’s not telling us the truth or he’s not coming up with — -and then they threatened saying that if you don’t answer or give us the information this time, we will kill you.
Q: Did the police say anything to you besides accusing you of being linked with a terrorist?
A: No, they were — they were focused on asking me about the terrorist and they, they said, how do you help them, tell us all about it. I think because of me being a Sikh, they were, they, were doing that more and more with me.
[Government lawyer to Singh]:
Q: Okay, sir, I just want to make sure I understand, okay. So the reason the police arrested you is because they want to find out information— one is to find out information about Jabed Khan.
A: Yes.
Q: Okay, and [the] second reason was because they accused you of hiring him even though you know that he’s a terrorist?
A: I did not know anything about his being a terrorist and he was not a terrorist.
The IJ found Singh’s testimony credible in the following terms:
*1165 In assessing the credibility of the respondent, I have taken into account the rationality, internal consistency and inherent persuasiveness of his testimony. In considering the foregoing, I find that the respondent has testified credibly and his application is credible.
In concluding that Singh had failed to factually demonstrate the nexus between his mistreatment and a protected ground, the IJ centered exclusively on Singh’s testimony that the police focused on him only because he had hired Jabed Khan and might have information about Khan. He wrote:
[T]he Court noted that [Singh] was asked repeatedly by Government counsel why he was arrested and he consistently answered that he had been arrested because he had employed [Khan].
In the Court’s view, the record is consistent that the police were interested in the respondent because of his connection with an individual from an area of India where there is terrorist activity. The respondent confirmed as much in his testimony....
The IJ’s credibility determination and his protected-ground analysis are thus intertwined. The majority would pull them apart, and draw our attention away from the actual reason upon which the credibility determination is grounded-that Singh did nothing more than employ Khan to provoke the police’s interest. See Mengping Lu v. Mukasey,
Shoafera v. INS,
This case presents an even more clear-cut record on the IJ’s credibility determination than Shoafera. The record in this case does not include “speculations and conclusions” which raised the issue of an adverse credibility determination and split the panel in Shoafera. And here, as established by the removal hearing transcript quoted above, both Singh’s counsel and counsel for the government specifically examined Singh on what he was claiming. His uncontroverted answers show that he was persecuted “only” because he had employed Khan and because the police wanted to find out information regarding Khan. For the majority in this case to reach a different conclusion would be to rely on
Even if we deemed that the factual circumstances upon which the IJ relied for his imputed political opinion finding need not be taken as true, the BIA’s decision still would be supported by substantial evidence. The majority emphasizes the “working against the government” accusation as evidence that the persecution in this case is based on imputed political opinion. However, in the cases cited by the majority, the “against the government” accusations, and similar statements, have been evaluated in the context of the surrounding circumstances upon which the accusation is made, and not just because the phrases were spoken.
In Zhiqiang Hu v. Holder,
Unlike those cases, there is no reason here to believe that the basis for the accusations made against Singh went beyond what Singh testified to. The one underlying factual circumstance that gave the police their reason to arrest and interrogate Singh, as Singh himself acknowledges, was that he had employed a suspected terrorist. And based on that, the police accused Singh of helping the terrorists, harboring information regarding activities of individuals planning against the government, being a traitor and working against the government. Police at no time accused Singh of being a terrorist himself; at no time during Singh’s torture did they attempt to exact from him a confession to being a terrorist; and at no time did their actions deviate from what was, according to the evidence, an interrogation to gain information about Khan, not one where Singh’s political opinion made him a terrorist suspect.
I do agree with the import of the majority’s opinion, that the only way to find a nexus to imputed political opinion is to characterize Singh as a terrorist. “To establish an imputed political opinion, the applicant must show that his persecutors actually imputed a political opinion to him.” Sangha v. INS,
The majority further reasons that the police’s interest in Singh’s relationship to Khan serves as indirect evidence of an imputed political opinion. According to the majority, because the police accused Singh of being a “traitor” based solely on his association with Khan, they imputed a political opinion to him. However, the police’s use of the word “traitor,” according to Singh, was connected to the accusation of working against the government. As with the “working against the government” charge, there is no reason to believe that the “traitor” label applied by police reached beyond the accusations that Singh helped the terrorists, had information regarding their activities, and knowingly employed one. Nor would the police’s use of an epithet, such as calling Singh a “dog,” reveal an imputed political opinion. See Danilova v. Holder,
The majority cites Silaya v. Mukasey,
The majority also concludes that there is little evidence that the police in Singh’s case were engaged in a legitimate investigation. In summing up why he was arrested, Singh testified that he “was only arrested because of Jabed Khan and they said he was a terrorist and police alleged that I was helping the terrorists.” But, that falls short of “showing] that [Singh’s]
Finally, the majority claims that even if a legitimate investigatory reason existed for Singh’s persecution, Singh has presented sufficient evidence to show that imputed political opinion was also a central reason for it. “The task of the alien is simply to demonstrate the reasonableness of a motivation which related to one of the enumerated grounds.” Singh v. Ilchert,
I submit that it is not reasonable to conclude that a central reason for the Indian police’s persecution of Singh was based on imputed political opinion. Singh confirmed in his testimony that the only reason for his arrests and interrogations was to gain information about Khan and what Singh had done to help terrorist groups. The police never accused Singh of being a terrorist, and never asked him to confess that he was. The police never accused Singh of being a terrorist to anyone else, including his wife, even though after Singh fled to the United States, the police went to Singh’s house numerous times and arrested his wife to try to locate Singh. And, had the police believed Singh to be a terrorist or hold political opinions aligning himself with the terrorists, one would not expect the police to release him on two separate occasions after torture did not extract the information about Khan that they were seeking.
Whether or not we respect the IJ’s credibility determination, the BIA had ample reason to believe that Singh did not meet his burden of proof. Certainly, it was not compelled to do so. I would, therefore, deny the petition for review and application for withholding of removal.
I concur with the opinion insofar as it remands for the granting of relief pursuant to the Convention Against Torture.
