                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                             FOR THE NINTH CIRCUIT                             FEB 18 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

DAVINDER SINGH,                                  No. 11-70644

              Petitioner,                        Agency No. A078-364-589

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     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’

        *
             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.
                                           -2-
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.
                                           -3-
      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.
                                          -4-
      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).
