Dharwinder Singh v. Merrick B. Garland, U.S. Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Dharwinder Singh,
Petitioner,
v.
Merrick B. Garland, U.S. Attorney
General,
Respondent.
No. 22-41
Agency No. A216-570-244
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 29, 2023**
San Francisco, California
Before: BOGGS,*** M. SMITH, and OWENS, Circuit Judges.
Dharwinder Singh, a native and citizen of India, petitions for review of
the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal of an
immigration judge’s (“IJ”) denial of his applications for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We
* This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 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 Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
FILED
APR 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2 22-41
have jurisdiction under 8 U.S.C. § 1252. We review factual findings for
substantial evidence and questions of law de novo. Bhattarai v. Lynch, 835
F.3d 1037, 1042 (9th Cir. 2016). As the parties are familiar with the facts, we
do not recount them here. We grant the petition for review and remand for
further proceedings.
1. Singh sought relief based on his fear of harm on account of his
political opinion. He is from Punjab, a member of the Shiromani Akali Dal
Amritsar Party (“Mann Party”), and fears members of the Bharatiya Janata
Party (“BJP”). Singh stated that he was attacked on two occasions by BJP
members.
The BIA upheld the IJ’s determination that Singh’s asylum and
withholding claims failed because he did not establish past persecution
“committed by the government or forces the government is either unable or
unwilling to control.” J.R. v. Barr, 975 F.3d 778, 782 (9th Cir. 2020) (citation
omitted). We remand for the BIA to consider in the first instance the impact, if
any, of our recent decision in Kaur v. Wilkinson, 986 F.3d 1216 (9th Cir. 2021).
In Kaur, the petitioner was a member of the Mann Party, and we
remanded for the BIA to consider the petitioner’s contention that the members
of the Indian National Congress Party—“one of India’s major political parties
and one of the leading parties in Punjab”—who harmed her were “government
actors.” Id. at 1227-30. We stated that “when a petitioner credibly asserts that
her persecutor is the government itself, she is not required to show that the

-- 2 of 4 --

3 22-41
persecutor cannot be controlled.” Id. at 1229. We relied on our prior decision
in Reyes-Guerrero v. INS, 192 F.3d 1241 (9th Cir. 1999), which we stated
showed that “when a petitioner suffers persecution at the hands of a major
political party both during and after its rise to power from a minority voting
bloc in the legislature to the head of government, the source of the persecution
is the government itself.” Kaur, 986 F.3d at 1228.
Here, Singh argues that the BJP members who attacked him were
“government actors” because the BJP is “one of India’s major political parties,”
id. at 1227-28, and had controlled the national government in India for several
years at the time of his attacks. We remand for the BIA to consider Singh’s
argument in light of Kaur. We are not persuaded by the Government’s
contention that Singh failed to exhaust this issue.
2. The BIA also upheld the IJ’s alternative determination that even if
Singh had established past persecution, the Department of Homeland Security
had met its burden to demonstrate that Singh could safely and reasonably
relocate within India. Whether Singh could relocate safely and reasonably
within India outside of Punjab is linked to whether his attacks by BJP members
constitute persecution by the government itself. This is because “[w]here the
applicant has established a well-founded fear of future persecution at the hands
of the government, a rebuttable presumption arises that the threat exists
nationwide.” Singh v. Whitaker, 914 F.3d 654, 661 (9th Cir. 2019) (citation
omitted). Here, the BIA did not apply a presumption of a nationwide threat.

-- 3 of 4 --

4 22-41
Nor are we persuaded by the Government’s argument that Singh failed to
exhaust this issue. Therefore, we also remand for the BIA to potentially
reconsider its relocation analysis if it determined that Singh’s attackers were
government actors. See Kaur, 986 F.3d at 1230-31 (remanding for the BIA to
reconduct its internal-relocation analysis with the Singh presumption applied in
the event that the petitioner established on remand that her attackers were
government actors).
3. Singh additionally argues that the IJ erred in relying on changed
country conditions regarding the role of the BJP within the state government of
Punjab. However, the BIA did not address this finding, and therefore this issue
is not before us. See Budiono v. Lynch, 837 F.3d 1042, 1046 (9th Cir. 2016)
(“Our review is limited to those grounds explicitly relied upon by the Board.”
(citation omitted)). We only note that the parties agree that the IJ appeared to
rely on incorrect information regarding the BJP’s role in the Punjab government
at the time of Singh’s attacks.
4. Singh does not raise, and therefore has waived, any challenge to the
BIA’s determination that he waived his CAT claim. See Lopez-Vasquez v.
Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised
and argued in an opening brief are waived).
5. The motion for a stay of removal (Dkt. No. 4) is granted. Singh’s
removal is stayed pending a decision by the BIA.
PETITION GRANTED; REMANDED.

-- 4 of 4 --