Robert Davenport, an attorney, appeals pro se from the district court‘s judgment dismissing his action seeking relief under the Privacy Act, 5 U.S.C. § 552a, in connection with the Department of Defense‘s refusal to change certain factual findings set forth in a decision to revoke Davenport‘s security clearance.
United States Court of Appeals, Ninth Circuit
March 31, 2010
821
Submitted March 16, 2010. Filed March 31, 2010.
Timothy C. Stutler, Esq., USSD-Office of the U.S. Attorney, San Diego, CA, for Defendants-Appellees.
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
MEMORANDUM***
Robert Davenport, an attorney, appeals pro se from the district court‘s judgment dismissing his action seeking relief under the Privacy Act,
The district court properly dismissed Davenport‘s action because it lacked subject matter jurisdiction to review the factual findings underlying a decision to revoke a security clearance. See id. at 1401-02.
Because the district court lacked subject matter jurisdiction, Davenport‘s action should have been dismissed without prejudice. See Kelly v. Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir. 2004). Accordingly we vacate the judgment and remand for the limited purpose of entry of judgment dismissing the action without prejudice.
We grant defendants’ requests to strike set forth in their answering brief. The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part and REMANDED with instructions.
Kapur SINGH, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
No. 05-75601.
United States Court of Appeals, Ninth Circuit.
March 31, 2010
821
Argued and Submitted March 10, 2010. Filed March 31, 2010.
Ronald E. LeFevre, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, Andrew Nathan O‘Malley, Trial, OIL, U.S. Department of Justice, Washington, DC, for Respondent.
Before: B. FLETCHER and CLIFTON, Circuit Judges, and ANELLO,* District Judge.
MEMORANDUM**
Kapur Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA“) order dismissing his appeal from an immigration judge‘s (“IJ“) decision denying his application for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT“). We have jurisdiction under
The BIA found that Singh had established past persecution on account of his political opinion. The government therefore bore the burden to rebut the presumption that Singh was eligible for asylum. Rios v. Ashcroft, 287 F.3d 895, 900 (9th Cir. 2002).
One way the government may satisfy this burden is by showing by a preponderance of the evidence that there has been a “fundamental change in circumstances,” such that the applicant no longer has a well-founded fear of persecution, or that the “applicant could avoid future persecution by relocating to another part of the applicant‘s country of nationality or, if stateless, another part of the applicant‘s country of last habitual residence, and under all the circumstances, it would be reasonable to expect the applicant to do so.”
Because the BIA found that Singh had proven past persecution, he was entitled to a presumption of future persecution rebuttable only if the government showed by a preponderance of the evidence that there has been a “fundamental change in circumstances such that the applicant no longer has a well-founded fear.” Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004) (citation and internal quotation marks omitted). In determining whether the government has done so, “the BIA must provide an individualized analysis of how changed conditions will affect the specific petitioner‘s situation.” Lopez v. Ashcroft, 366 F.3d 799, 805 (9th Cir. 2004) (citation and internal quotation marks omitted). “Information about general changes in the country is not sufficient.” Garrovillas v. INS, 156 F.3d 1010, 1017 (9th Cir. 1998).
Here, we find that the BIA failed to engage in such an individualized determination. The BIA cited evidence, such as Exhibits 7, 10, 12, and 13, which relate to the religious persecution of Sikhs, but do not inform whether Sikhs like Singh, who believe in an independent Sikh state, still face persecution on account of their political opinion. The 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 changed.
Likewise, the BIA‘s conclusory determination that internal resettlement was a viable option is not supported by an adequate analysis of whether it would be safe and reasonable for Singh to do so, as that analysis was not individualized and did not reflect his specific circumstances. Kaiser v. Ashcroft, 390 F.3d 653, 659 (9th Cir. 2004); Knezevic v. Ashcroft, 367 F.3d 1206, 1214-15 (9th Cir. 2004). The BIA did not cite to any specific evidence in the record rebutting the presumption against relocation. We have held that “the Board‘s opinion must contain a statement
Singh also applied for relief under the United Nations Convention Against Torture. Singh asserts that the Board completely failed to consider his application for relief under CAT. To obtain CAT relief, a petitioner must prove that it is more likely than not that he would be tortured if removed to the proposed country of removal.
PETITION FOR REVIEW GRANTED AND REMANDED.