Ranjit Singh v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RANJIT SINGH,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 13-74311
14-70700
Agency No. A078-368-364
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 17, 2022
Portland, Oregon
Before: PAEZ and BADE, Circuit Judges, and R. COLLINS,** District Judge.
Partial Concurrence and Partial Dissent by Judge PAEZ.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
FILED
DEC 2 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Ranjit Singh, a native and citizen of India, petitions for review of the Board
of Immigration Appeals’ (“BIA”) dismissal of his appeal from an immigration
judge’s (“IJ”) decision denying his applications for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). He also
petitions for review of the BIA’s denial of his motion for reconsideration. We have
jurisdiction under 8 U.S.C. § 1252(a)(1). We review the agency’s “legal
conclusions de novo and its factual findings for substantial evidence.” Bringas-
Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (citations
omitted). We deny the consolidated petition for review.
1. First, substantial evidence supports the agency’s finding that Singh is not
eligible for asylum or withholding of removal. Ghaly v. INS, 58 F.3d 1425, 1429
(9th Cir. 1995) (“[F]ailure to satisfy the lesser standard of proof required to
establish eligibility for asylum necessarily results in a failure to demonstrate
eligibility for withholding of deportation as well.”). The evidence presented by the
government demonstrates that individuals like Singh are no longer targeted in
India, and the BIA did not err in granting less weight to Singh’s testimony and the
letter from his wife. Because the evidence does not “compel[] a contrary
conclusion” to the one reached by the BIA, see Bolshakov v. INS, 133 F.3d 1279,
1281 (9th Cir. 1998), substantial evidence supports the BIA’s denial of Singh’s
claims for asylum and withholding of removal.

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2. Second, substantial evidence supports the agency’s finding that Singh is not
eligible for CAT relief. While Singh asserts that he was clearly the victim of
torture during his prior police detentions, the country reports provided substantial
evidence to find that conditions have changed such that the likelihood that people
like Singh would continue to be seriously pursued by police is low. Singh also
cursorily asserts on appeal that he would face torture from militants. Even
assuming this argument was properly presented, Singh fails to provide substantial
evidence to support this assertion. See United States v. Graf, 610 F.3d 1148, 1166
(9th Cir. 2010) (explaining that arguments “made in passing and not supported by
citations to the record or to case authority are generally deemed waived”).
3. Finally, Singh argues that he is eligible for discretionary relief based on the
atrocity of his past persecution and the risk of other serious harm if he is returned
to India. But at no point did Singh argue that the IJ or the BIA erred by failing to
consider whether Singh’s past persecution compared to the treatment in Matter of
Chen, Int. Dec. 3104 (BIA 1989). Nor did Singh argue for “other serious harm”
before the BIA. Because Singh failed to present these claims for review by the
BIA, we lack jurisdiction to hear his appeal on these claims. See, e.g., Honcharov
v. Barr, 924 F.3d 1293, 1296 n.2 (9th Cir. 2019) (noting that the exhaustion
requirement “is jurisdictional and therefore generally bars [the court], for lack of
subject-matter jurisdiction, from reaching the merits of a legal claim not presented

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in the administrative proceedings below” (internal quotation marks omitted)).
PETITION FOR REVIEW DENIED.

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Singh v. Garland, Nos. 13-74311 & 14-70700
Paez, J., concurring in part and dissenting in part:
I concur in the majority’s disposition of Singh’s Convention Against Torture
and humanitarian asylum claims, but I respectfully dissent from the majority’s
decision to uphold the agency’s denial of Singh’s claims for asylum and
withholding of removal. In my view, the agency failed properly to consider
whether the government rebutted the presumption of future persecution due to
changed circumstances. Thus, I would remand Singh’s asylum and withholding of
removal claims to the BIA for further proceedings. See Ali v. Holder, 637 F.3d
1025, 1031 (9th Cir. 2011).
1. An asylum applicant who establishes past persecution is entitled to a
presumption of a well-founded fear of future persecution. 8 C.F.R. §
1208.13(b)(1). The IJ must explicitly apply the presumption. Matter of D-I-M-, 24
I. & N. Dec. 448, 451 (BIA 2008). The government may rebut the presumption by
making either of two showings by a preponderance of evidence: (1) that “there has
been a fundamental change in circumstances such that the applicant no longer has a
well-founded fear of persecution” on the basis of the original claim, or (2) that the
applicant could avoid persecution by relocating within the applicant’s home
country. 8 C.F.R. § 1208.13(b)(1).
To determine whether circumstances have fundamentally changed under the
FILED
DEC 2 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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first prong, the agency must conduct an “individualized analysis that focuses on the
specific harm suffered and the relationship to it of the particular information
contained in the relevant country reports.” Chand v. INS, 222 F.3d 1066, 1079 (9th
Cir. 2000); see also Ali v. Holder, 637 F.3d 1025, 1030 (9th Cir. 2011). This
analysis of the circumstances as they relate to the applicant’s past experience of
harm is important because the presumption of future persecution recognizes that an
individual who has been singled out in the past may be more likely than the general
population of individuals within the protected group to be singled out in the future.
See Chand, 222 F.3d at 1078–79; Ali, 637 F.3d at 1030 (discussing Lal v. INS, 255
F.3d 998, 1010 (9th Cir. 2001).
2. Here, the BIA purported to adopt the IJ’s “alternative conclusion that that
the presumption of future persecution . . . is rebutted by the evidence submitted by
the Department of Homeland Security (“DHS”) reflecting a fundamental change in
country conditions.” While the BIA provided a brief discussion of the country
conditions evidence, it relied entirely on the IJ’s decision for the analysis of this
evidence as related to the circumstances of Singh’s case. As the BIA stated, “the
[IJ] conducted an individualized analysis in determining that there were
fundamental changes in conditions in India since the respondent’s last arrest . . . ,
evaluating the respondent’s specific claim in light of evidence of country
conditions and other submitted evidence.” Because the IJ neither made nor

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conducted the analysis required to support such a finding, and the BIA did not
conduct its own analysis, the BIA erred.
The IJ’s alternative holding makes only a single reference to the
presumption of future persecution and does not explain the basis for finding that:
“[Singh] is not entitled to the rebuttal presumption, and this Court finds that even if
he were entitled to the rebuttable presumption, [the] Government has established
that the presumption is rebutted. See Exhibit 3.” Exhibit 3 refers to the
government’s submission of Indian Background Materials, consisting of two
country condition reports. “See Exhibit 3” does not constitute an analysis of
Singh’s individualized circumstances. Moreover, the IJ does not say whether the
presumption is rebutted on the basis of fundamentally changed circumstances or on
the basis of feasible internal relocation. See 8 C.F.R. § 1208.13(b)(1). The IJ’s
subsequent discussion of country conditions concludes that Singh could internally
relocate and that Singh did not establish an independent well-founded fear of
future persecution, but does not analyze whether or make a finding that the
presumption was rebutted by a showing of a fundamental change in circumstances.
Neither the internal relocation nor the well-founded fear analysis can suffice
to replace a finding that circumstances have fundamentally changed such that
someone who suffered Singh’s specific past harms would no longer have a well-
founded fear of future persecution. Indeed, permitting an analysis of whether an

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applicant has met his burden to show an objectively reasonable fear of future
persecution to substitute for an analysis of whether the government has met its
burden to show fundamentally changed circumstances undermines the presumption
required by the regulation, the BIA’s own precedent, and Ninth Circuit case law.
See 8 C.F.R. § 208.13(b)(1); Matter of D-I-M-, 24 I. & N. Dec. 448, 451 (BIA
2008) (remanding to IJ for failure to explicitly apply the presumption where the IJ
instead “concluded, without specific reference to the voluminous background
materials in the record,” that the applicant could safety relocate); Ali v. Holder, 637
F.3d 1025, 1031 (9th Cir. 2011).
3. The agency’s finding that the presumption of future persecution was
rebutted by fundamentally changed circumstances required an analysis that
considered the country conditions evidence in light of Singh’s specific past harms,
including arrests, beatings, and false accusations of affiliation with a terrorist
organization. Ali, 637 F.3d at 1031. Because neither the BIA nor the IJ undertook
this analysis, the BIA’s decision as to asylum and withholding of removal cannot
be sustained on its own reasoning. I respectfully dissent.

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