                                                                            FILED
                             NOT FOR PUBLICATION                             JUN 03 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



DAVINDER SINGH,                                  No. 09-70161

               Petitioner,                       Agency No. A099-482-949

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

               Respondent.



                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted May 24, 2011 **

Before:        PREGERSON, THOMAS, and PAEZ, Circuit Judges.

       Davinder Singh, a native and citizen of India, petitions for review of the

Board of Immigration Appeals’ order dismissing his appeal from an immigration

judge’s decision denying his application for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). We have jurisdiction


          *
             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).
under 8 U.S.C. § 1252. We review for substantial evidence factual findings.

Afriyie v. Holder, 613 F.3d 924, 931 (9th Cir. 2010). We deny in part and grant in

part the petition for review, and we remand.

      Substantial evidence supports the agency’s denial of CAT relief because

Singh failed to establish it is more likely than not that he will be tortured if

returned to India. See Hasan v. Ashcroft, 380 F.3d 1114, 1122-23 (9th Cir. 2004).

      As to asylum and withholding of removal, Singh’s declaration and testimony

indicate Singh reported several incidents of harm to Indian police, and they took no

action to protect him from further harm. Despite Singh’s testimony that a

government hospital allowed him to stay for a period of time following the final

attack he experienced in India, substantial evidence does not support the agency’s

finding that Singh failed to demonstrate past persecution by a person or group that

the Indian government was unable or unwilling to control. See Afriyie, 613 F.3d at

931-34; see also Singh v. INS, 94 F.3d 1353, 1360 (9th Cir. 1996). Accordingly,

we remand for the agency to consider whether Singh has otherwise established past

persecution, see Afriyie, 613 F.3d at 934, and in light of this, we also remand as to

Singh’s future fear, see id. at 934-35 (if past persecution is established or assumed,

the government has the burden of showing that relocation is both safe and

reasonable; further, the agency must consider the requisite regulatory factors


                                            2                                      09-70161
pertinent to the reasonableness of relocation). We therefore grant the petition and

remand Singh’s asylum and withholding of removal claims for further proceedings

consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002)

(per curiam).

      Each party shall bear its own costs for this petition for review.

      PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.




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