Singh v. Atty Gen USA

Court Case Details
Court Case Opinion

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 03-2788

KULVIER SINGH,

Petitioner

v.

*ALBERTO R. GONZALEZ, Attorney General

of the United States,

Respondent

* Substituted pursuant to Rule 43c, F.R.A.P.

On Petition for Review of a Final Order

of the Board of Immigration Appeals

(No. A78-513-784)

Argued October 26, 2004

Before: NYGAARD, AMBRO,

and VAN ANTWERPEN, Circuit Judges

(Opinion filed May 5, 2005)

Parker Waggaman, Esquire
Amy N. Gell, Esquire (Argued)
Gell & Gell
299 Broadway, Suite 620
New York, NY 10007

Attorney for Petitioner

Peter D. Keisler
Assistant Attorney General
Civil Division
Mary Jane Candaux
Senior Litigation Counsel
William C. Erb, Esquire (Argued)
Douglas E. Ginsburg, Esquire
John M. McAdams, Jr., Esquire
United States Department of Justice
Office of Immigration Litigation
P.O Box 878
Ben Franklin Station
Washington, DC 20044

Attorneys for Respondent

OPINION OF THE COURT

2

AMBRO, Circuit Judge

Kulvier Singh petitions for review of the order of the

Board of Immigration Appeals (“BIA”) denying his application

for asylum and withholding of removal because Singh had not

demonstrated that he was persecuted, or had a well-founded fear

of persecution, on account of a ground enumerated in the

Immigration and Nationality Act (“INA”). That order reversed

the decision of the Immigration Judge (“IJ”). We grant the

petition.

I. Factual Background and Procedural History

Singh, a native and citizen of India, arrived in the United

States on February 23, 2001, when he was fifteen years old.

Singh was born in the state of Punjab, and he and his parents are

1

religious Sikhs. He testified that he came to the United States

because the Indian police were “after” him and his father and

were attempting to kill them because of his father’s activities in

working for Khalistan, a putative independent state for Sikhs.

Singh and his father were members of Shirdarval Sahib, one of

1

The IJ found that Singh was “very credible”, and the BIA did

not disturb this finding. Therefore, we give Singh the benefit of
the BIA’s acceptance of his credibility, and our discussion of the
factual background of this case is principally based on Singh’s
testimony at his hearing before the IJ.

3

two groups under the Akali Dal, a political party in Punjab. The

leader of the Akali Dal told his followers that Khalistan would

be an independent state where Sikhs would “get their rights.”

Beginning when Singh was ten years old, the police often

came to his home and took his father away for questioning. In

October 2000, the police came to Singh’s house while he was

sleeping, began beating Singh’s father, and then took Singh and

his father to a police station. While at the house, the police told

Singh’s father that he had arms and ammunition in the house,

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which Singh’s father denied. The police also searched the

house.

The police kicked Singh and his father while transporting

them to the police station. When they arrived at the station,

Singh was pushed into a corner and watched while his father

was stripped naked and beaten by the police. Singh began to

scream, at which point the police began to beat him also. Singh

believed that his father was beaten for half an hour or an hour

and that he himself was beaten for ten to fifteen minutes—to the

point of losing consciousness. While the police were beating the

father, they talked about his work for Khalistan, which Singh

understood as the officers’ way of telling his father “we have

told you so many times not to work for Khalistan. Now, by

beating this way, we are going to tell you that, how to ask for

2

One of the officers who arrested Singh and his father was

apparently also a Sikh.

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Khalistan.”

Later, the police told Singh and his father that a leader of

their village and others had come to get them out, and the police

let them go. Before their release, the police inspector reiterated

that Singh’s father had been told many times not to work for

Khalistan’s sovereignty and had not listened even though the

police had beat him. The inspector then threatened that, if

Singh’s father kept engaging in these political activities, the

police would kill Singh. Singh and his father could not walk

when they were released, and they were taken to a dispensary

where they were given medication.

After Singh returned from the hospital six or seven days

later, his parents sent him to his uncle’s house, where he stayed

for about a month. Singh’s uncle told Singh that his father had

been taken away again by the police because a dead body was

found near their family’s lands and that the police used this

event as an excuse to take his father. He also told Singh that the

police made Singh’s mother give them the names and addresses

of all their relatives so that the officers could look for Singh.

A different uncle then took Singh in, but the police found

him there. When Singh’s uncle saw the police coming, he took

Singh to hide for a few hours at a neighbor’s house. Singh’s

uncle reported that the police said they would kill Singh if they

found him. Singh’s uncle and grandfather then made

arrangements for Singh to come to the United States. Singh

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testified that he is afraid that, if he is sent back, the police “will

get [him] at the airport because they will check [his] card or one

way or the other they will find out, and the police will take [him]

and they are going to kill [him].”

3

The Immigration and Naturalization Service (“INS”)

initiated removal proceedings against Singh on February 24,

2001 by issuing a Notice to Appear, alleging that Singh was

removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I) for arriving in

the United States without a valid visa. Singh conceded

removability but applied for asylum and withholding of removal.

On September 9, 2001, the IJ granted both applications. The IJ

found Singh to be “very credible” and further found that Singh

had suffered persecution “on account of his perceived political

opinion as being both his father’s son and a Sikh himself.” The

IJ also found that it is more likely than not that Singh will be

persecuted if returned to India.

The INS appealed, and the BIA upheld the IJ’s credibility

finding but vacated the grant of asylum and withholding of

removal, stating that even if Singh had been persecuted, he had

not “met his burden of proving persecution on account of one of

3

As a result of the Homeland Security Act of 2002, Pub. L.

No. 107-296, 116 Stat. 2135 (2002), the INS has since ceased to
exist as an agency within the Department of Justice, and its
enforcement functions have been transferred to the Department
of Homeland Security.

6

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the five enumerated grounds in the [INA].” Singh’s petition for

review of the BIA’s decision is now before us.

II. Jurisdiction and Standard of Review

Under 8 U.S.C. § 1252(a), we have jurisdiction to hear a

petition for review from a final order of the BIA. We must

uphold the BIA’s factual findings if they are supported by

substantial evidence. Singh-Kaur v. Ashcroft, 385 F.3d 293, 296

(3d Cir. 2004). Further, the BIA’s denial of asylum can be

reversed “only if the evidence presented by [petitioner] was such

that a reasonable factfinder would have to conclude that the

requisite fear of persecution existed.” INS v. Elias-Zacarias,

502 U.S. 478, 481 (1992); see also Abdille v. Ashcroft, 242 F.3d

477, 484 (3d Cir. 2001).

4

The BIA also apparently did not question that Singh was

persecuted, as it did not address the INS’s argument that the IJ’s
decision should be reversed because the harm Singh suffered did
not rise to the level of persecution. See A.R. at 2 (“On appeal,
the Service asserts that the respondent failed to meet his burden
of proving eligibility for asylum and withholding of removal
because the respondent was not credible, the harm he suffered
did not amount to persecution, and he has failed to establish that
the harm he did suffer was on account of imputed political
opinion (his father’s) . . . . While we agree with the Service’s
argument relating to ‘on account of,’ we do not find adequate
grounds to reverse the Immigration Judge’s credibility
determination.”).

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III. Discussion

The Attorney General and his delegates may grant asylum

to any alien who qualifies as a refugee under the INA. 8 U.S.C.

§ 1158(b)(1). A refugee is an alien who is “unable or

unwilling” to return to his or her country of origin “because of

persecution or a well-founded fear of persecution on account of

race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Aliens

have the burden of supporting their asylum claims. Gao v.

Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). “Testimony, by

itself, is sufficient to meet this burden, if ‘credible.’” Id. (citing

8 C.F.R. § 208.13(a)).

To establish eligibility for asylum, an applicant must

demonstrate past persecution by substantial evidence or a well-

founded fear of persecution that is both subjectively and

objectively reasonable. Lukwago v. INS, 329 F.3d 157, 177 (3d

Cir. 2003). An applicant who establishes that he or she has

suffered past persecution on account of one of the five grounds

enumerated in the INA “triggers a rebuttable presumption of a

well-founded fear of future persecution, as long as that fear is

related to the past persecution.” Id. at 174 (citing 8 C.F.R.

§ 208.13(b)(1)). Whereas asylum is discretionary, withholding

of removal under INA § 241(b)(3)(A), 8 U.S.C.

§ 1231(b)(3)(A), is mandatory if the applicant meets a more

stringent standard—that it is “more likely than not” that he or

she will be persecuted on account of race, religion, nationality,

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membership in a particular social group, or political opinion if

deported to his or her home country. Id. at 182.

Singh advances two principal arguments. The first is that

the BIA erred in determining that he did not establish imputed

political opinion. The second is that the BIA should have

applied “mixed motive” case law in reaching its decision and

upheld the IJ’s grant of asylum because the harm Singh suffered

at the hands of the Indian police was, in large part, on account

of one of the grounds enumerated in the INA—imputed political

5

opinion. We agree with him on both counts.

5

Singh may also have a strong argument that the BIA’s

conclusory statement that it did “not agree with the Immigration
Judge’s determination that the respondent has established
persecution on account of . . . membership in a particular social
group” is not supported by substantial evidence because being
his father’s son is a characteristic he cannot change. Our Circuit
has adopted the BIA’s definition of “particular social group” as
referring to “‘a group of persons all of whom share a common,
immutable characteristic.’” Lukwago, 329 F.3d at 171 (quoting
Matter of Acosta, 19 I. & N. Dec. 211, 233 (1985), overruled in
part as stated in Matter of Mogharrabi
, 19 I. & N. Dec. 439
(1987)). We have also noted that the BIA has identified kinship
ties as an innate, shared characteristic. Fatin v. INS, 12 F.3d
1233, 1239 (3d Cir. 1993) (discussing Matter of Acosta, 19 I. &
N. Dec. at 233); see also Lopez-Soto v. Ashcroft, 383 F.3d 228,
235 (4th Cir. 2004) (noting that all the Courts of Appeal that
have considered the issue have held that “family” qualifies as a

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A.

Imputed Political Opinion

We have recognized that an alien may be eligible for

asylum if the persecution he suffered, or has a well-founded fear

of suffering, is “‘on account of a political opinion the applicant

actually holds or on account of one the foreign government has

imputed to him.’” Lukwago, 329 F.3d at 181 (quoting

Balasubramanrim v. INS, 143 F.3d 157, 165 n.10 (3d Cir.

1998)); see also In re S-P-, 21 I. & N. Dec. 486, 489 (BIA 1996)

(“Persecution for ‘imputed’ grounds (e.g., where one is

erroneously thought to hold particular political opinions . . . )

can satisfy the ‘refugee’ definition.”). In determining whether

persecution existed on account of political opinion, we focus on

whether the persecutor has attributed a political view to the

victim and acted on that attribution. Sangha v. INS, 103 F.3d

1482, 1489 (9th Cir. 1997).

The BIA did not engage in any substantial discussion

regarding its conclusion that Singh had not established imputed

political opinion, but it did “acknowledge” that Singh’s youth

particular social group and joining in this holding) (collecting
cases). Unfortunately, despite Singh’s counsel’s representation
at oral argument that she hoped she had not waived his
particular social group argument, we conclude that we cannot
reach the merits of this issue because it was not raised in Singh’s
brief. See Laborers’ Int’l Union of N. Am. v. Foster Wheeler
Corp.
, 26 F.3d 375, 398 (3d Cir. 1994).

10

contributed to his “lack of knowledge about his father’s political

6

and other affiliations.” There is nothing in the case law that

suggests that an asylum applicant claiming imputed political

opinion is required to have any knowledge about the political

belief that is being imputed to him. The focus is instead on

whether this attribution has in fact occurred, and that is what we

look at here.

In a case presenting facts similar to ours, the Ninth

Circuit Court of Appeals held that a petitioner’s father’s

political opinion was not imputed to the petitioner when

guerillas sought out and beat up only the petitioner’s father,

who, like Singh’s father, was a member of the Akali Dal. Id. at

1490. However, the Sangha court noted that “[i]f the [militant

separatist group] had imputed the Akali Dal political views to

6

The BIA also noted that one of the officers who arrested

Singh and his father and one of the officers at the police station
were Sikhs. The Government has also emphasized this in its
response to Singh’s petition. Although this fact might be
relevant to a determination of whether Singh was persecuted, or
had a well-founded fear of persecution, on account of his
religious beliefs, Singh has not pressed such an argument before
us. The record supports the IJ’s finding that not all Sikhs are
separatists. Thus, the fact that some of the officers involved in
the events at issue in this case may also have been Sikhs does
not undercut Singh’s argument that he was mistreated on
account of having his father’s separatist political views imputed
to him.

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[petitioner], it seems likely that the [group] would also have

sought and beat up [petitioner].” Id. The facts in our case fit

well into the hypothetical posed in Sangha.

Here the police did not only seek out and beat Singh’s

father, whose political views were known to them; they also

arrested, beat, threatened, and repeatedly sought out Singh

himself. Singh, who was deemed “very credible,” testified

about his father’s prior arrests, his father’s activities for a free

Khalistan, and the faction of the Akali Dal to which his father

belonged. He also testified that he was a member of the same

faction of the Akali Dal as his father. Singh further testified that

while the police were beating him and his father, they said that

they were trying to stop Singh’s father from continuing his

work. This context poses a classic imputed political opinion

case. Singh’s credible, uncontradicted testimony compels the

conclusion that the Indian police attributed his father’s separatist

political opinion to him.

This determination nonetheless does not end our analysis.

The Government also asserts that we should deny Singh’s

petition for review because he failed to establish that any

imputed political opinion was “the motivating factor” behind his

arrest and other mistreatment. We must therefore consider

Singh’s argument that the BIA should have applied a “mixed

motive” analysis to his case and should have concluded that he

was eligible for asylum because he was persecuted, in

significant part, on account of imputed political opinion.

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B.

“Mixed Motive” Analysis

The Government argues that the motivating factor behind

Singh’s arrest (as well as his father’s) was a legitimate law

enforcement purpose—investigating the police’s suspicion that

there were illegal firearms in the family home. The Government

is correct that “prosecution for criminal violations of fairly

administered laws is ordinarily not one of the statutory grounds

upon which a claim for asylum can be based.” Janusiak v. INS,

947 F.2d 46, 48 (3d Cir. 1991). However, we (and the BIA

itself) have recognized that an applicant for asylum need not

prove that the persecution he or she suffered (or fears suffering

in the future) occurred solely on account one of the five grounds

enumerated in the INA. Rather, an applicant must show that the

persecution was motivated, at least in part, by one of the

protected characteristics. See Amanfi v. Ashcroft, 328 F.3d 719,

727 (3d Cir. 2003) (noting that the BIA’s decision in In re S-P-

“held that an alien need only prove that the persecutor was

motivated in significant part by a protected characteristic”); In

re S-P-, 21 I. & N. Dec. at 497 (holding that an alien had

established eligibility for asylum where, although there was a

legitimate government attempt to gather intelligence information

from the alien, “an additional underlying reason for the abuse

was the belief that the victim held political views opposed to the

government.”); see also Chang v. INS, 119 F.3d 1055, 1065 (3d

Cir. 1997) (granting petition for review where, inter alia,

petitioner had a well-founded fear of persecution because the

Chinese government, which may have been partially motivated

13

by “legitimate concerns of protecting confidential state

information”, “was also motivated, at least in part, by

7

[petitioner’s] opposition to official policy”).

Singh may therefore establish eligibility for asylum even

if, as the Government contends and the BIA found, there was

some “legitimate security purpose” (searching for weapons)

behind his arrest and mistreatment, if he establishes that the

mistreatment was also motivated by the police’s attribution of

his father’s political opinion to him. As stated above, the record

in this case compels the conclusion that Singh established an

imputed political opinion. Singh also testified at length that he

was beaten, arrested, and threatened because of that imputed

political opinion.

7

Other Courts of Appeal have also adopted the “mixed

motive” mode of analysis in asylum cases. See, e.g., Singh v.
Ilchert
, 63 F.3d 1501, 1509 (9th Cir. 1995) (“[P]ersecutory
conduct may have more than one motive, and so long as one
motive is one of the statutorily enumerated grounds, the
requirements [to establish eligibility for asylum] are satisfied.”);
Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir. 1994) (“The plain
meaning of the phrase ‘persecution on account of the victim’s
political opinion[]’ does not mean persecution solely on account
of the victim’s political opinion. That is, the conclusion that a
cause of persecution is economic does not necessarily imply that
there cannot exist other causes of the persecution.”) (emphasis
in original).

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As already recounted, while the police were beating

Singh’s father, they talked about his work for a free Khalistan,

and Singh understood these statements as equating to the police

telling his father that they were beating him in order to get him

to stop this work. Singh also testified that, when he and his

father were released, the police inspector threatened that Singh

would be killed if his father continued his activities on behalf of

Khalistan. These statements demonstrate that Singh’s arrest,

subsequent beating, and particularly the threats to his life, were

motivated in significant part by the police’s desire to punish

Singh and his father for the father’s political activities regardless

of any legitimate law enforcement purpose the police may have

had in investigating Singh’s father for harboring illegal

weapons. Cf. In re S-P-, 21 I. & N. Dec. at 494 (stating that

among the factors that should be considered in deciding mixed

motive cases are “indications in the particular case that the

abuse was directed toward modifying or punishing opinion

rather than conduct (e.g., statements or actions by the

perpetrators or abuse out of proportion to nonpolitical ends)”).

Our conclusion that the police were largely motivated by the

political opinion in favor of a separate state for Sikhs that they

imputed to Singh is bolstered by the fact that there is no

evidence in the record that Singh (or his father, for that matter)

was ever questioned about the weapons that were supposedly

being kept in his home during his beating at the police station.

Cf. id. at 495 (applying the mixed motive analysis and finding

that the alien was persecuted on account of his political views

because, among other things, “the harm inflicted upon the

15

applicant in this case went well beyond the bounds of legitimate

questioning for intelligence gathering and continued long after

questioning for this purpose had ended.”).

Despite this compelling evidence in the record that Singh

was persecuted—in large part, if not entirely—on the basis of

the political opinion that was imputed to him, the Government

contends that he is nonetheless not entitled to relief in light of

our decision in Amanfi, 328 F.3d 719. This case, however, is

nothing like Amanfi. There we held that the mere “mention of

religion” in the petitioner’s testimony was insufficient to

establish persecution on account of religion under the mixed

motive framework when the record demonstrated that the

petitioner’s mistreatment was based on a dispute with private

actors regarding his father’s preaching “and not Amanfi’s or his

father’s belief in Christianity.” 328 F.3d at 727. As discussed

above, Singh did much more than merely mention his father’s

political opinion in relating his story at the hearing before the IJ.

The bulk of Singh’s testimony, in stark contrast to the testimony

in Amanfi, concerned his father’s political activities and the

connection between those activities and the harm that Singh

suffered in the past and fears suffering in the future.

Moreover, the BIA itself explicitly acknowledged that

Singh’s arrest was “probably related to [his] father’s political

affiliations” in addition to a “legitimate security purpose.” The

BIA’s failure to apply a mixed motive analysis to Singh’s case

after noting that there was likely more one than one reason for

16

Singh’s arrest, one of which was a protected ground under the

INA, is inexplicable. When the mixed motive framework is

properly applied, Singh’s credible, unrebutted testimony

compels the conclusion that the mistreatment he suffered at the

hands of the police after his arrest and the threats that were

made against his life were motivated, at least in significant part,

by the political opinion that was imputed to him. Singh has

8

therefore established eligibility for asylum.

IV. Conclusion

Because the record compels the conclusion that Singh

established that the Indian police imputed his father’s political

opinion to him and mistreated him, at least in large part, based

8

Because we have determined that Singh is entitled to relief

on the merits of his asylum claim, we need not reach his
additional argument that the BIA’s decision ran afoul of the
Administrative Procedure Act because the legal basis of the
decision was not properly explained. We nonetheless note that
we do not find this argument persuasive. “When deficiencies in
the BIA’s decision make it impossible for us to meaningfully
review its decision, we must vacate that decision and remand so
that the BIA can further explain its reasoning.” Kayembe v.
Ashcroft
, 334 F.3d 231, 238 (3d Cir. 2003). Although we have
found the BIA’s reasoning to be erroneous, we do not believe
this is a case in which the BIA’s reasoning was not adequately
explained in its decision such that we could not engage in
meaningful review.

17

on that opinion, we grant Singh’s petition for review. The BIA

did not question Singh’s persecution, see note 4 supra, and the

record is completely devoid of evidence rebutting the conclusion

that Singh has a well-founded fear of persecution based upon his

past persecution and the threats the police have made against his

life. We therefore conclude that there are no disputed issues

remaining to be resolved by the BIA on Singh’s asylum claim.

However, we recognize that the decision whether to grant

asylum lies within the discretion of the Attorney General and

that the Supreme Court has instructed that appellate courts

should, upon reversing an agency decision (particularly a

decision of the BIA), remand the matter to the agency except in

rare circumstances. INS v. Ventura, 537 U.S. 12, 16 (2002) (per

curiam). Thus, we remand this case to the BIA for further

proceedings consistent with this opinion as to Singh’s asylum

claim and his claim for withholding of removal (that was

9

previously summarily denied by the BIA).

9

As the Government pointed out in its November 3, 2004

letter to our Court, Singh also sought relief under the
Convention Against Torture (“CAT”) before the IJ. The
Government suggested that we remand this case to the BIA for
consideration of that claim. The IJ found, in the context of
discussing whether Singh had suffered past persecution and/or
had a well-founded fear of future persecution, that Singh had
been tortured. However, the IJ granted Singh relief only on his
asylum and withholding of removal claims without mentioning

18

his CAT claim. Singh argued in his November 3, 2004 letter to
us that the record in his case supported his claim for CAT relief.
He did not, however, raise the issue of CAT relief in his opening
brief before us. Therefore, although the Government may be
correct that, as a general matter, the BIA errs in failing to
consider a CAT claim once it is raised, we are unfortunately
compelled to conclude that, due to his counsel’s lack of
diligence, Singh has waived that argument here. See Lie v.
Ashcroft
, 396 F.3d 530, 532 n.1 (3d Cir. 2005) (holding that
petitioner waived any argument relating to the denial of her
CAT claim by not presenting it in her brief). We thus leave to
the BIA the question whether Singh’s CAT claim should be
reinstated on remand.

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