Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 94-55400.

Attorney(S)

Robert B. Jobe, Jobe Melrod, San Francisco, CA (argued), and Daniel Wolf, Hughes, Hubbard and Reed, Washington, DC, for petitioner-appellant. Leon W. Weidman, Asst. U.S. Atty., John B. Bartos, Sp. Asst., Los Angeles, CA, for respondents-appellees.

Judges

John T. Noonan

Acts

Aliens And Nationality — Immigration And Nationality — Immigration — Admission Qualifications For Aliens; Travel Control Of Citizens And Aliens — Inadmissible Aliens
Aliens And Nationality — Immigration And Nationality — Immigration — Selection System — Asylum
Aliens And Nationality — Immigration And Nationality — Immigration — Adjustment And Change Of Status — Penalties Related To Removal
Aliens And Nationality — Immigration And Nationality — General Provisions — Definitions

See more information ...

Smart Summary

Case Summary: Hardev Singh v. Robert Moschorak, No. 94-55400 (9th Cir. Apr. 28, 1995)

Factual and Procedural Background

Hardev Singh entered the United States using an alias and was excludable under 8 U.S.C. § 1182(a)(6)(C). He did not contest excludability but applied for asylum under 8 U.S.C. § 1158(a) and withholding of deportation under 8 U.S.C. § 1253(h). At Immigration Judge (IJ) proceedings, Singh testified to a pattern of arrests, beatings, torture, and ill-treatment by Indian security forces and police at several points between 1984 and 1992, tied to his membership in the All India Sikh Student Federation and political activity as a Sikh. The IJ denied asylum and withholding of deportation. The Board of Immigration Appeals (Board) per curiam affirmed, concluding (1) there was no persuasive evidence that the mistreatment was on account of political opinion or mere fact of being Sikh (it viewed the actions as investigation/reaction against suspected militants) and (2) Singh had not shown a threat of prosecution outside the Punjab, citing a State Department advisory that many Sikhs lived peacefully elsewhere in India. Board Member Heilman filed a separate concurrence describing the situation of Sikhs in India. Singh brought a habeas action in the district court. The magistrate accepted Singh's testimony as true, concluded the Board's finding that Singh was not persecuted for political opinion was not supported by substantial evidence, found Singh had established asylum eligibility based on past persecution, and recommended remand to the Board to consider whether Singh could safely live in another region of India and whether conditions had changed. The district court adopted the recommendation and remanded to the Board. Singh appealed to the Ninth Circuit.

Legal Issues Presented

Whether Singh established refugee status (and thus eligibility for asylum) based on past persecution on account of political opinion under 8 U.S.C. § 1101(a)(42)(A) and § 1158.
Whether the Board's factual finding that Singh was not persecuted for his political opinion was supported by substantial evidence.
Whether a remand to the Board to determine whether Singh could safely live in another region of India (internal relocation) was required or appropriate where the persecution alleged was by the national government.

Arguments of the Parties

Petitioner-Appellant (Singh)

Singh relied on his testimony describing repeated arrests, severe beatings, torture, and threats by Indian security forces over a number of years tied to his Sikh identity and political activity with the Student Federation.
He asserted that these acts constituted past persecution and established eligibility for asylum and withholding of deportation.

Respondents-Appellees (INS / District Director)

The Board's per curiam position: the mistreatment described was not shown to be on account of political opinion or mere fact of being Sikh, but rather was investigatory or a reaction against suspected militants; and Singh failed to show a threat beyond the Punjab, pointing to a State Department advisory that many Sikhs live peacefully elsewhere in India.
The Service (in the district court and before this Court) argued, among other points, that Singh's return to political activity after earlier incidents indicated he was not afraid of the police (an argument the Ninth Circuit characterized as failing to distinguish fortitude from absence of fear).
The Service also invoked analogy to Ninth Circuit cases (Quintanilla-Ticas and Diaz-Escobar) where localized danger (a single village from guerrillas) did not establish eligibility for asylum, arguing those principles should control here.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
INS v. Elias-Zacharias, 502 U.S. 478 (1992)	General rule that the Board's factual determinations must be accepted unless unsupported by substantial evidence.	The district court and magistrate invoked this rule in evaluating whether the Board's factual finding (that Singh was not persecuted for political opinion) was supported by substantial evidence.
Castillo v. INS, 951 F.2d 1117 (9th Cir. 1991)	Reinforcement of the rule concerning deference to the Board's factual findings unless lacking substantial evidence.	Used by the district court/magistrate as part of the substantial-evidence standard in reviewing the Board's factual conclusions.
Desir v. Ilchert, 840 F.2d 723 (9th Cir. 1988)	Application of refugee definition and asylum principles under the governing statute.	The Ninth Circuit cited Desir in concluding that, given Singh's unwillingness to avail himself of India's protection due to persecution, he qualifies as a refugee under 8 U.S.C. § 1101(a)(42)(A).
Quintanilla-Ticas v. INS, 783 F.2d 955 (9th Cir. 1986)	Where danger is localized (e.g., in a single village from guerrillas known to the petitioner), lack of showing of such danger elsewhere in the country may preclude eligibility for asylum.	The Court distinguished Quintanilla-Ticas on the ground that its rule applies to localized non-governmental persecution, not to persecution by a national government; the Service's attempt to analogize was rejected.
Diaz-Escobar v. INS, 782 F.2d 1488 (9th Cir. 1986)	Similar principle to Quintanilla-Ticas concerning localized threats and asylum eligibility.	The Court treated Diaz-Escobar as another example of cases involving localized non-governmental danger and explained that those cases are not controlling where the persecution is by the national government.

Court's Reasoning and Analysis

The Ninth Circuit began with the statutory framework: asylum is discretionary under 8 U.S.C. § 1158, and a "refugee" is defined in 8 U.S.C. § 1101(a)(42)(A) as a person outside his country of nationality who is unable or unwilling to return 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.

The Court accepted the district court's factual finding that Singh was the victim of actual past persecution on the basis of political opinion. The Service did not contest that finding on appeal; the Court rejected the Service's argument that Singh's continued political activity after earlier incidents negated fear, observing that fortitude in the face of danger is not equivalent to absence of fear.

Applying the statutory definition, the Court concluded Singh was unwilling to avail himself of India's protection because of persecution by India and therefore met the refugee definition under § 1101(a)(42)(A). The Court cited Desir v. Ilchert in support of the conclusion that Singh thereby qualifies as a refugee.

The Ninth Circuit addressed the district court's remand to the Board to determine whether Singh could "live safely in another region of India." The Court held that the district court's apparent belief that asylum would be unavailable if persecution were confined to the Punjab was incorrect as a matter of law when the persecution is by the nation's government. The Court distinguished prior Ninth Circuit decisions (Quintanilla-Ticas and Diaz-Escobar) that denied asylum where danger was localized — those involved non-governmental actors (guerrillas) whose threat was limited and known to the petitioner — and explained that those precedents do not apply where the national government itself has engaged in persecutory acts. The Court relied on the statutory language and implementing regulations that frame refugee analysis in terms of the applicant's country of nationality and "conditions in the applicant's country of nationality," concluding that it is not appropriate to regard some parts of a country as safe when the national government has engaged in the persecutory conduct that caused the applicant to flee.

Given that Singh established past persecution by the national government on account of his race or political opinion and is unwilling to return to India, the Court held he is a refugee eligible for asylum. The Court also agreed that remand was appropriate to allow the Attorney General (through the Board) to exercise discretion under § 1158(a), and therefore directed remand to the district court with instructions to remand to the Attorney General for proceedings consistent with the opinion.

Holding and Implications

Core Ruling: The Ninth Circuit held that Singh established refugee status based on past persecution by the national government of India on account of his political opinion (and race), and that the district court's remand to the Board for exercise of the Attorney General's discretion under 8 U.S.C. § 1158(a) was proper.

Disposition: REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO REMAND TO THE ATTORNEY GENERAL FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

Implications:

Direct effect on the parties: Singh is found to have established refugee status as a matter of law under the statutory definition and the case is to proceed on remand for the Attorney General's discretionary consideration of asylum under § 1158(a).
The Court clarified that where persecution is carried out by a nation's government, the presence of regions in the country where members of the persecuted group live peacefully does not, by itself, negate the applicant's eligibility for asylum; the internal-relocation inquiry that applies to localized non-governmental threats (as in Quintanilla-Ticas and Diaz-Escobar) is not controlling in that situation.

Source: Opinion of the United States Court of Appeals for the Ninth Circuit, No. 94-55400, decided April 28, 1995 (Noonan, Circuit Judge).

Show full summary ...

HARDEV SINGH, PETITIONER-APPELLANT, v. ROBERT MOSCHORAK, DISTRICT DIRECTOR, UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE; IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENTS-APPELLEES.

NOONAN, Circuit Judge:

Hardev Singh appeals a decision of the district court remanding his case to the Board of Immigration Appeals (the Board). We remand to the district court.

PROCEEDINGS

Singh entered the United States using an alias and was therefore excludable under 8 U.S.C. § 1182(a)(6)(C). He did not contest his excludability but sought asylum under 8 U.S.C. § 1158(a) and withholding of deportation under 8 U.S.C. § 1253(h). At proceedings initiated by the Immigration and Naturalization Service (the Service) before Immigration Judge Thomas Fong, Singh testified as follows:

He was born in 1959 and was a resident of the Amristar district, Punjab, India. A Sikh, he had been since 1977 a member of the All India Sikh Student Federation (the Student Federation). His father was the treasurer of Akali Dal, a political party of Sikhs. According to Singh, the elected representatives who were members of this party were not permitted to take up their elected positions because as Sikhs they carried small swords from which, on religious grounds, they could not separate themselves.

On June 7, 1984 the Indian army engaged in conflict with Sikhs at the Sikhs' Golden Temple in Amristar; many Sikhs were killed; and the Golden Temple was seriously damaged. By loudspeaker Singh summoned the people of his village to go with him to see the Golden Temple. He was arrested by the army, beaten, blindfolded, a tin box was put on his head, and he was put in a well for four days; he became unconscious. For the next 20 days he was blindfolded and made to stand in the sun and questioned by officials. He was released on August 2 and resumed his work for the Student Federation.

In June 1985 he was carrying posters to another town to commemorate "the black day" of the previous year's attack on the Golden Temple; the posters instructed Sikhs to wear black in memory of the day. He was picked up by India Reserve Police and security forces, taken to Amristar, beaten on his feet for 20 minutes, and held for 10 days. His brother-in-law, who was the president of the Student Federation, died under interrogation by the reserve police.

In June 1989 Singh was attending a conference in Amristar commemorating members of the Student Federation who had been killed by the police. Permission to hold the conference had been given by the district commissioner. Singh was arrested, beaten and kicked and his legs pulled apart, racking his muscles; he became unconscious. He was threatened with death unless he left the Student Federation. After a second day of treatment in this fashion he had lumps all over his body and was unable to walk. The third day he was beaten and hung upside down. The following day melted wax was poured on his feet, causing blisters. On the next day the police trampled on the blisters and kicked him in the face; his front teeth were broken. He was again hung upside down and was drenched in blood. He was unable to eat because his face was swollen. He was given no medical aid. After two and one half months in custody, he was released after his family paid 50,000 rupees to the police. On release from custody Singh entered the hospital for two weeks where he was treated for injury to his feet, kidneys and liver. During this period both his mother and his wife were interrogated about him and beaten. His brother was also arrested and his whereabouts since his arrest are unknown.

On July 20, 1992 Singh was again caught carrying posters on behalf of a strike on July 22 to protest the disappearance of Sikhs. He was again beaten and his legs were again racked; he lost consciousness. The second day he was treated in the same way. On the third day he was subjected to electric shock and his arms were racked. He was told that he must leave the Student Federation.

After this episode, he decided to leave India. His father, a farmer, sold his tractor in order to finance his trip to Nepal and then to the United States.

After hearing this testimony the Immigration Judge denied Singh's asylum and the withholding of deportation. Singh appealed to the Board, which per curiam affirmed the decision of the Immigration Judge. The basis of the Board's decision was twofold. First, there was "no persuasive evidence that the mistreatment suffered by the applicant at the hands of security officials was on account of his political opinion or the mere fact that he was a Sikh. He did not show that the action extended beyond an investigation of, and reaction against, those thought — rightly or wrongly — to be militants seeking the violent overthrow of the government." Second, Singh had failed to show that he faced a threat of prosecution in any other part of India except the Punjab; the Board noted the advisory opinion of the State Department that large numbers of Sikhs led peaceful lives in other parts of India. In a separate opinion setting out the situation of the Sikhs in India, Board Member Heilman concurred.

Singh then brought this action of habeas corpus in the district court. The magistrate noted that the Board had accepted Singh's testimony as true and so he would accept it as true. He followed the usual rule that the Board's factual determinations must be accepted unless there is a lack of substantial evidence to support them. INS v. Elias-Zacharias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992); Castillo v. INS, 951 F.2d 1117, 1120 (9th Cir. 1991). The magistrate held that the Board's finding that Singh had not been persecuted for his political opinion was not supported by substantial evidence, observing that the Board failed to distinguish efforts to arrest and persecute individuals suspected of criminal activity from punishment without judicial process. No doubt, the magistrate must have had in mind the occasion where, without any judicial process, Singh was arrested, imprisoned, and tortured for attending a conference to be held by the permission of the district commissioner. The magistrate concluded: "Consequently, petitioner has established asylum eligibility on the basis of past persecution and is presumed to have a well-founded fear of persecution. 8 C.F.R. § 208.13(b)(1)(i)."

The magistrate also addressed the alternative ground of the Board's decision and noted that the advisory opinion from the State Department did not "address the issue of whether this petitioner can live safely in another region of India nor does it address this issue of whether conditions have changed in India." The magistrate recommended that the case should be remanded to the Board so that the Board could consider both questions. The district court adopted the magistrate's report and recommendation and remanded to the Board "for further proceedings consistent with this report and recommendation."

Singh appeals.

ANALYSIS

Under the relevant statute the Attorney General has established a procedure "for an alien physically present in the United States or at a land border or port of entry" and in his discretion may grant the alien asylum "if the Attorney General determines that such alien is a refugee within the meaning of § 1101(a)(42)(A) of this title." 8 U.S.C. § 1158. Under § 1101(a)(42)(A) the term refugee means "any person who is outside any country of such person's nationality" and who is "unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of . . . political opinion. . . ."

The statute controls the case. The district court determined that Singh was the victim of actual past persecution on the basis of political opinion. The Service does not challenge this finding, although, surprisingly, the Service urges that his returning to his political work for the Student Federation shows that he was not afraid of the police. The Service fails to distinguish fortitude in the face of danger from absence of fear. It is evident from his application for asylum that Singh is unwilling to avail himself of the protection of India owing to his persecution by India. Consequently, he qualifies as a refugee as defined by § 1101(a)(42)(A). Desir v. Ilchert, 840 F.2d 723, 739 (9th Cir. 1988).

Adopting the recommendation of the magistrate, the district court remanded to the Board to determine if Singh can "live safely in another region of India" distinct from his home. The district court apparently believed that Singh would not qualify for asylum if his persecution by India for political opinion was confined to the Punjab. Such is not the law. Singh's contention is not that Sikhs in general or Sikhs in the Punjab are persecuted, but that he, a particular Sikh, has been persecuted for his political opinion; and so he has. That thousands of Sikhs live peacefully in some parts of India has no bearing on his case.

We have recognized that where there was a danger of persecution in a single village from guerrillas who knew the petitioner, and no showing of such danger elsewhere in the country, the petitioner failed to establish eligibility for asylum. Quintanilla-Ticas v. INS, 783 F.2d 955, 957 (9th Cir. 1986); Diaz-Escobar v. INS, 782 F.2d 1488, 1493 (9th Cir. 1986). The Service argues by analogy that these cases control this case. But where the persecution is by the government of the nation no such distinction may be taken. The basic definitional statute defines a refugee in terms of a person "who is outside the country of such person's nationality." 8 U.S.C. § 1101(a)(42)(A). The regulations as to establishing refugee status speak consistently in terms of "general conditions in the applicant's country of nationality." 8 C.F.R. § 208.13(a); persecution "in his country of nationality" and unwillingness to return to "that country" id. § 208.13(b)(1); changed "conditions in the applicant's country of nationality" id. § 208.13(b)(1)(i); and compelling reasons not to return to "his country of nationality" id. § 208.13(b)(1)(ii). It has never been thought that there are safe places within a nation when it is the nation's government that has engaged in the acts of punishing opinion that have driven the victim to leave the country.

Singh has established that he is unwilling to return to India due to past persecution by the national government of that country on the basis of his race or political opinion. He is a refugee eligible for asylum under 8 U.S.C. § 1101(a)(42) and 1158. The district court was, of course, right in remanding to the Board for the exercise of the Attorney General's discretion under 8 U.S.C. § 1158(a). This case is remanded to the district court with instructions to remand to the Attorney General for proceedings consistent with this opinion.

SINGH v. MOSCHORAK