                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 25 2013

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




                            FOR THE NINTH CIRCUIT



SURINDER SINGH,                                  No. 08-72612

              Petitioner,                        Agency No. A096-169-896

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

              Respondent.

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

                       Argued and Submitted March 14, 2013
                             San Francisco, California

Before: FISHER and NGUYEN, Circuit Judges, and GARBIS, District Judge.**

      Surinder Singh petitions for review of the BIA’s denial of his application for

asylum, withholding of removal and relief under the Convention Against Torture.

We grant the petition and remand to the BIA.




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
         The Honorable Marvin J. Garbis, Senior United States District Judge for
the District of Maryland, sitting by designation.
      1.     The BIA did not engage in impermissible factfinding, in violation of 8

C.F.R. § 1003.1(d)(3)(iv), in concluding that the government met its burden of

rebutting the presumption of a well-founded fear of future persecution

notwithstanding the IJ’s failure to reach the issue. In making its determination, the

BIA applied the pertinent legal standard to the facts as found by the IJ.

Consequently, the BIA decided a mixed question of law and fact, as permitted by 8

C.F.R. § 1003.1(d)(3)(ii).

      2.     In denying Singh’s asylum and withholding of removal claims, the

BIA and IJ failed to conduct an “individualized determination” of whether and how

any changed conditions in India affect Singh’s particular situation, based on the

nature of the past persecution he experienced at the hands of Punjabi police. See

Ali v. Holder, 637 F.3d 1025, 1030 (9th Cir. 2011) (“The hallmark of an

‘individualized determination’ is a tailored analysis of the petitioner’s specific

harms and circumstances. Where past persecution has been established,

generalized information from a State Department report on country conditions is

not sufficient to rebut the presumption of future persecution.” (internal quotation

marks omitted)); Lal v. INS, 255 F.3d 998, 1010-11 (9th Cir. 2001) (stating that

when a State Department report generally indicates that human rights violations are

no longer widespread, the BIA must undertake an individualized assessment to


                                           2
determine whether “the individual who suffered past persecution is among the

general population that is not suffering from a ‘sustained pattern’ of human rights

violations, or whether the applicant is among the unlucky few who are most

vulnerable to abuse . . . [,] tak[ing] account of the specific attributes of the past

persecution on record”).

       The BIA did not undertake its own analysis of this issue, instead concluding

that the IJ’s analysis was adequate. The IJ made only general references to

improving conditions in India, relying largely on the end of the period of militancy

in the mid-1990s and the State Report’s failure to discuss whether human rights

violations are still occurring in Punjab. The BIA erred in relying on the IJ’s

observations. First, the IJ’s statements regarding changed country conditions were

made in the context of Singh’s CAT claim, for which Singh bears the burden of

proving that he is more likely than not to be tortured if removed to India. See 8

C.F.R. § 1208.16(c)(2). The BIA improperly extrapolated the IJ’s conclusion

regarding Singh’s CAT claim to support a conclusion the IJ did not make with

respect to Singh’s asylum and withholding of removal claims, for which the

government bears the burden of proof once past persecution has been established.

See 8 C.F.R. § 208.13(b)(1) (asylum); id. § 1208.16(b)(1)(i)(A) (withholding of

removal).


                                            3
      Second, the IJ’s generalized observations regarding changed country

conditions were themselves insufficient to constitute an “individualized” or

“tailored” analysis of whether and how the current conditions in India affect

Singh’s own circumstances. The IJ’s statement “that the period of militancy from

the mid 1980s until the mid 1990s is long over and that it is very unusual for

someone who is just a rank and file Akali Dal Mann party member to be

mistreated” does not “take account of the specific attributes of [Singh’s] past

persecution” as required by our precedent. Lal, 255 F.3d at 1011. Singh testified

that he and numerous family members were arrested and beaten by the police in

2001, after the counterinsurgency of the 1980s and 1990s was “long over,” and

that even though he was not a leader of Akali Dal Mann, he was persecuted

because he was suspected of having information about, or being an “accomplice”

of, suspected militants. The IJ failed to explain why Singh would no longer be

persecuted upon return to India in light of extensive record evidence of ongoing

illegal arrests, disappearances and mistreatment or killings of arrestees in that

country.

      Although we are skeptical that the government can meet its burden of

rebutting the presumption of future persecution to which Singh is entitled, we




                                           4
remand to the BIA to conduct an individualized analysis of the record and Singh’s

particular situation. See Ali, 637 F.3d at 1031.

      3.     In affirming the IJ’s denial of CAT relief, the BIA relied upon the IJ’s

changed country conditions analysis. The IJ’s failure to conduct a sufficiently

individualized analysis of whether and how changed conditions in India would

affect Singh’s particular situation warrants remand as to Singh’s CAT claim as

well. See Nuru v. Gonzales, 404 F.3d 1207, 1218 & n.6 (9th Cir. 2005) (holding

that individualized consideration of changed country conditions is also required in

the context of CAT claims).

      Accordingly, we grant the petition and remand to the agency for further

consideration consistent with these proceedings. See INS v. Ventura, 537 U.S. 12,

16 (2002) (per curiam).

      PETITION GRANTED.




                                          5
