Davinder Singh v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVINDER SINGH,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-70644
Agency No. A078-364-589
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 13, 2015 **
San Francisco California
Before: NOONAN and SILVERMAN, Circuit Judges, and GARBIS, Senior
District Judge. ***
Davinder Singh, an Indian citizen, practicing Sikh, and supporter of the Sikh
separatist movement, petitions for review of the Board of Immigration Appeals’
FILED
FEB 18 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.

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dismissal of his appeal from the Immigration Judge’s denial of his application for
deferral of removal under the Convention Against Torture. We have jurisdiction
pursuant to 8 U.S.C. § 1252. We GRANT the petition and REMAND for further
proceedings.
There is no question, as the BIA found, that Singh was tortured by Indian
police. The only question now is whether he would be in jeopardy if forced to
return. In concluding that he would not be, the BIA failed to give adequate reasons
for according little weight to the affidavits of Singh’s wife and brother that state
that the police continue to come looking for Singh. It is true that the affidavits are
hearsay, and it is also true that the agency is within its right to accord little weight
to hearsay that is contradicted by non-hearsay. Gu v. Gonzales, 454 F.3d 1014,
1021 (9th Cir. 2006). The problem is that these affidavits are not contradicted by
any non-hearsay or even other hearsay. To the contrary, the affidavits are
consistent with facts that, in the prior petition for review, this court already found
to be true. Specifically, we previously found that “[t]he record shows that police
have actively searched for Singh in multiple Indian states and continue to be
interested in his whereabouts.” (Davinder) Singh v. Mukasey, 262 F. App’x 45, 48
(9th Cir. 2007). This finding was based on, inter alia, Singh’s credible testimony,
as well as his wife’s and mother’s detailed declarations.

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The country conditions reports upon which the BIA relied, although
generally authoritative, are themselves hearsay and based on hearsay. More
importantly, the BIA’s citation to them as supporting the conclusion that
“conditions in the Punjab have considerably been changing for the better, as have
conditions for Sikhs all over India,” is not inconsistent with the specific facts
contained in the affidavits: that individuals of the Sikh faith generally are no longer
targeted for discriminatory treatment does not refute the statement that police
continue looking for Singh, who provided material support to militant Sikh
separatists.
The other reason given by the BIA for discrediting the affidavits – “lack of
detail” – also does not hold water. Singh’s wife’s affidavit specifically states that
it was Haryana police (not some unnamed agency) who specifically inquired about
Singh’s whereabouts and specifically sought to confirm that he had not returned to
India. Singh’s brother’s affidavit is to the same effect and adds a couple of
additional details: that the police came to the brother’s home (not some unnamed
location) and that this happened whenever a new officer was put in charge of the
local police station. Taken together, in context, these affidavits are not so lacking
in detail as to automatically justify disbelief.

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Aside from its failure to give adequate reasons for according little weight to
the affidavits, the BIA also erred in failing “‘to make an individualized
determination’” of [Singh’s] claim for relief by ‘assessing the impact of changed
country conditions on an individualized basis.’” (Jagtar) Singh v. Holder, 753
F.3d 826, 834 (9th Cir. 2014) (citing Lopez v. Ashcroft, 366 F.3d 799, 806 (9th Cir.
2004)) (emphasis in (Jagtar) Singh); see also Gui v. INS, 280 F.3d 1217, 1229 (9th
Cir. 2002).
To support its conclusion that conditions for Sikhs in general have
improved, the BIA cited generally to two reports in the record as well as generally
to DHS’s entire submission of country conditions documents. In so doing, the BIA
failed to address the specific basis for Singh’s asylum claim and tie it to specific
support in the record. That people of the Sikh faith are generally no longer at risk
of discriminatory violence is irrelevant to the question whether those the Indian
police believe voluntarily aided militants remain at risk of torture. 1
PETITION FOR REVIEW GRANTED; REMANDED.
1 The panel lacks jurisdiction to consider Singh’s additional argument – that
he fears deportation to India because he is afraid the Indian police will detain and
torture him as a means of extorting money – because Singh did not make this
argument before the BIA. Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.
2004).

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