                                                                              FILED
                              NOT FOR PUBLICATION                              SEP 26 2012

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



                              FOR THE NINTH CIRCUIT



RAJINDER SINGH KHATRA-MAVI,                       No. 10-71634

               Petitioner,                        Agency No. A098-594-677

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

               Respondent.


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

                             Submitted September 18, 2012 **

Before:        LEAVY, PAEZ, and NGUYEN, Circuit Judges.

       Rajinder Singh Khatra-Mavi, a native and citizen of India, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s (“IJ”) decision denying his application for asylum,

withholding of removal, and protection under the Convention Against Torture

(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial

          *
             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).
evidence the agency’s factual findings. Wakkary v. Holder, 558 F.3d 1049, 1056

(9th Cir. 2009). 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

Khatra-Mavi failed to demonstrate it is more likely than not he will be tortured by

or with the acquiescence of the government if returned to India. See id. at 1067-68.

Accordingly, we deny the petition with respect to Khatra-Mavi’s CAT claim.

      Khatra-Mavi alleges that Congress Party members beat him on three

occasions, including one in which he needed stitches on his lips and another in

which the injuries were severe enough to require medical treatment. His attackers

also threatened him with future beatings and death. In another incident, Congress

Party members caused Khatra-Mavi and his father to drive off the road and crash

their scooter. Substantial evidence does not support the BIA’s finding that these

experiences do not rise to the level of persecution. See Mamouzian v. Ashcroft,

390 F.3d 1129, 1134 (9th Cir. 2004) (“We have consistently found persecution

where, as here, the petitioner was physically harmed . . . [particularly where] such

harm was inflicted on more than one occasion over a period of years, and where

the physical abuse was combined with other incidents . . . .”) (internal citation

omitted).



                                           2                                    10-71634
      It is unclear whether the BIA also relied on lack of nexus in finding that

Khatra-Mavi failed to establish past persecution. See Recinos De Leon v.

Gonzales, 400 F.3d 1185, 1189 (9th Cir. 2005) (“When the agency’s reasoning is

indiscernible, the courts cannot exercise their duty of review, and instead must

remand to the agency.”) (citation and internal quotation marks omitted).

Accordingly, we grant the petition with respect to asylum and withholding of

removal and remand to the BIA for clarification. Id. at 1194.

      With respect to future persecution, it is unclear whether the BIA placed the

burden of proof regarding relocation on Khatra-Mavi or on the government, and

the IJ’s decision is similarly unclear on this point. See Afriyie v. Holder, 613 F.3d

924, 935 (9th Cir. 2010); see also Recinos De Leon, 400 F.3d at 1189. We remand

to the BIA to analyze the relocation issue in accord with the proper burden of

proof. See id. at 1194; see also 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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