                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-5-2005

Singh v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 03-2788




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                                   PRECEDENTIAL

 UNITED STATES COURT OF APPEALS
      FOR THE THIRD CIRCUIT


                No. 03-2788


             KULVIER SINGH,

                                 Petitioner

                     v.

*ALBERTO R. GONZALEZ, Attorney General
         of the United States,

                                 Respondent

     * Substituted pursuant to Rule 43c, F.R.A.P.


   On Petition for Review of a Final Order
    of the Board of Immigration Appeals
             (No. A78-513-784)


          Argued October 26, 2004

      Before: NYGAARD, AMBRO,
  and VAN ANTWERPEN, Circuit Judges
                (Opinion filed May 5, 2005)

Parker Waggaman, Esquire
Amy N. Gell, Esquire (Argued)
Gell & Gell
299 Broadway, Suite 620
New York, NY 10007

      Attorney for Petitioner

Peter D. Keisler
  Assistant Attorney General
  Civil Division
Mary Jane Candaux
  Senior Litigation Counsel
William C. Erb, Esquire (Argued)
Douglas E. Ginsburg, Esquire
John M. McAdams, Jr., Esquire
United States Department of Justice
Office of Immigration Litigation
P.O Box 878
Ben Franklin Station
Washington, DC 20044

      Attorneys for Respondent




                OPINION OF THE COURT


                                2
AMBRO, Circuit Judge

       Kulvier Singh petitions for review of the order of the
Board of Immigration Appeals (“BIA”) denying his application
for asylum and withholding of removal because Singh had not
demonstrated that he was persecuted, or had a well-founded fear
of persecution, on account of a ground enumerated in the
Immigration and Nationality Act (“INA”). That order reversed
the decision of the Immigration Judge (“IJ”). We grant the
petition.

      I. Factual Background and Procedural History

       Singh, a native and citizen of India, arrived in the United
States on February 23, 2001, when he was fifteen years old.
Singh was born in the state of Punjab, and he and his parents are
religious Sikhs.1 He testified that he came to the United States
because the Indian police were “after” him and his father and
were attempting to kill them because of his father’s activities in
working for Khalistan, a putative independent state for Sikhs.
Singh and his father were members of Shirdarval Sahib, one of


  1
   The IJ found that Singh was “very credible”, and the BIA did
not disturb this finding. Therefore, we give Singh the benefit of
the BIA’s acceptance of his credibility, and our discussion of the
factual background of this case is principally based on Singh’s
testimony at his hearing before the IJ.

                                3
two groups under the Akali Dal, a political party in Punjab. The
leader of the Akali Dal told his followers that Khalistan would
be an independent state where Sikhs would “get their rights.”

        Beginning when Singh was ten years old, the police often
came to his home and took his father away for questioning. In
October 2000, the police came to Singh’s house while he was
sleeping, began beating Singh’s father, and then took Singh and
his father to a police station. While at the house, the police told
Singh’s father that he had arms and ammunition in the house,
which Singh’s father denied.2 The police also searched the
house.

        The police kicked Singh and his father while transporting
them to the police station. When they arrived at the station,
Singh was pushed into a corner and watched while his father
was stripped naked and beaten by the police. Singh began to
scream, at which point the police began to beat him also. Singh
believed that his father was beaten for half an hour or an hour
and that he himself was beaten for ten to fifteen minutes—to the
point of losing consciousness. While the police were beating the
father, they talked about his work for Khalistan, which Singh
understood as the officers’ way of telling his father “we have
told you so many times not to work for Khalistan. Now, by
beating this way, we are going to tell you that, how to ask for


   2
   One of the officers who arrested Singh and his father was
apparently also a Sikh.

                                4
Khalistan.”

        Later, the police told Singh and his father that a leader of
their village and others had come to get them out, and the police
let them go. Before their release, the police inspector reiterated
that Singh’s father had been told many times not to work for
Khalistan’s sovereignty and had not listened even though the
police had beat him. The inspector then threatened that, if
Singh’s father kept engaging in these political activities, the
police would kill Singh. Singh and his father could not walk
when they were released, and they were taken to a dispensary
where they were given medication.

        After Singh returned from the hospital six or seven days
later, his parents sent him to his uncle’s house, where he stayed
for about a month. Singh’s uncle told Singh that his father had
been taken away again by the police because a dead body was
found near their family’s lands and that the police used this
event as an excuse to take his father. He also told Singh that the
police made Singh’s mother give them the names and addresses
of all their relatives so that the officers could look for Singh.

       A different uncle then took Singh in, but the police found
him there. When Singh’s uncle saw the police coming, he took
Singh to hide for a few hours at a neighbor’s house. Singh’s
uncle reported that the police said they would kill Singh if they
found him.      Singh’s uncle and grandfather then made
arrangements for Singh to come to the United States. Singh

                                 5
testified that he is afraid that, if he is sent back, the police “will
get [him] at the airport because they will check [his] card or one
way or the other they will find out, and the police will take [him]
and they are going to kill [him].”

        The Immigration and Naturalization Service 3 (“INS”)
initiated removal proceedings against Singh on February 24,
2001 by issuing a Notice to Appear, alleging that Singh was
removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I) for arriving in
the United States without a valid visa. Singh conceded
removability but applied for asylum and withholding of removal.
On September 9, 2001, the IJ granted both applications. The IJ
found Singh to be “very credible” and further found that Singh
had suffered persecution “on account of his perceived political
opinion as being both his father’s son and a Sikh himself.” The
IJ also found that it is more likely than not that Singh will be
persecuted if returned to India.

       The INS appealed, and the BIA upheld the IJ’s credibility
finding but vacated the grant of asylum and withholding of
removal, stating that even if Singh had been persecuted, he had
not “met his burden of proving persecution on account of one of


   3
    As a result of the Homeland Security Act of 2002, Pub. L.
No. 107-296, 116 Stat. 2135 (2002), the INS has since ceased to
exist as an agency within the Department of Justice, and its
enforcement functions have been transferred to the Department
of Homeland Security.

                                  6
the five enumerated grounds in the [INA].” 4 Singh’s petition for
review of the BIA’s decision is now before us.

          II. Jurisdiction and Standard of Review

       Under 8 U.S.C. § 1252(a), we have jurisdiction to hear a
petition for review from a final order of the BIA. We must
uphold the BIA’s factual findings if they are supported by
substantial evidence. Singh-Kaur v. Ashcroft, 385 F.3d 293, 296
(3d Cir. 2004). Further, the BIA’s denial of asylum can be
reversed “only if the evidence presented by [petitioner] was such
that a reasonable factfinder would have to conclude that the
requisite fear of persecution existed.” INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992); see also Abdille v. Ashcroft, 242 F.3d
477, 484 (3d Cir. 2001).


   4
    The BIA also apparently did not question that Singh was
persecuted, as it did not address the INS’s argument that the IJ’s
decision should be reversed because the harm Singh suffered did
not rise to the level of persecution. See A.R. at 2 (“On appeal,
the Service asserts that the respondent failed to meet his burden
of proving eligibility for asylum and withholding of removal
because the respondent was not credible, the harm he suffered
did not amount to persecution, and he has failed to establish that
the harm he did suffer was on account of imputed political
opinion (his father’s) . . . . While we agree with the Service’s
argument relating to ‘on account of,’ we do not find adequate
grounds to reverse the Immigration Judge’s credibility
determination.”).

                                7
                          III. Discussion

         The Attorney General and his delegates may grant asylum
to any alien who qualifies as a refugee under the INA. 8 U.S.C.
§ 1158(b)(1). A refugee is an alien who is “unable or
unwilling” to return to his or her country of origin “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.” 8 U.S.C. § 1101(a)(42)(A). Aliens
have the burden of supporting their asylum claims. Gao v.
Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). “Testimony, by
itself, is sufficient to meet this burden, if ‘credible.’” Id. (citing
8 C.F.R. § 208.13(a)).

       To establish eligibility for asylum, an applicant must
demonstrate past persecution by substantial evidence or a well-
founded fear of persecution that is both subjectively and
objectively reasonable. Lukwago v. INS, 329 F.3d 157, 177 (3d
Cir. 2003). An applicant who establishes that he or she has
suffered past persecution on account of one of the five grounds
enumerated in the INA “triggers a rebuttable presumption of a
well-founded fear of future persecution, as long as that fear is
related to the past persecution.” Id. at 174 (citing 8 C.F.R.
§ 208.13(b)(1)). Whereas asylum is discretionary, withholding
of removal under INA § 241(b)(3)(A), 8 U.S.C.
§ 1231(b)(3)(A), is mandatory if the applicant meets a more
stringent standard—that it is “more likely than not” that he or
she will be persecuted on account of race, religion, nationality,

                                  8
membership in a particular social group, or political opinion if
deported to his or her home country. Id. at 182.

        Singh advances two principal arguments. The first is that
the BIA erred in determining that he did not establish imputed
political opinion. The second is that the BIA should have
applied “mixed motive” case law in reaching its decision and
upheld the IJ’s grant of asylum because the harm Singh suffered
at the hands of the Indian police was, in large part, on account
of one of the grounds enumerated in the INA—imputed political
opinion.5 We agree with him on both counts.


    5
      Singh may also have a strong argument that the BIA’s
conclusory statement that it did “not agree with the Immigration
Judge’s determination that the respondent has established
persecution on account of . . . membership in a particular social
group” is not supported by substantial evidence because being
his father’s son is a characteristic he cannot change. Our Circuit
has adopted the BIA’s definition of “particular social group” as
referring to “‘a group of persons all of whom share a common,
immutable characteristic.’” Lukwago, 329 F.3d at 171 (quoting
Matter of Acosta, 19 I. & N. Dec. 211, 233 (1985), overruled in
part as stated in Matter of Mogharrabi, 19 I. & N. Dec. 439
(1987)). We have also noted that the BIA has identified kinship
ties as an innate, shared characteristic. Fatin v. INS, 12 F.3d
1233, 1239 (3d Cir. 1993) (discussing Matter of Acosta, 19 I. &
N. Dec. at 233); see also Lopez-Soto v. Ashcroft, 383 F.3d 228,
235 (4th Cir. 2004) (noting that all the Courts of Appeal that
have considered the issue have held that “family” qualifies as a

                                9
       A.     Imputed Political Opinion

       We have recognized that an alien may be eligible for
asylum if the persecution he suffered, or has a well-founded fear
of suffering, is “‘on account of a political opinion the applicant
actually holds or on account of one the foreign government has
imputed to him.’” Lukwago, 329 F.3d at 181 (quoting
Balasubramanrim v. INS, 143 F.3d 157, 165 n.10 (3d Cir.
1998)); see also In re S-P-, 21 I. & N. Dec. 486, 489 (BIA 1996)
(“Persecution for ‘imputed’ grounds (e.g., where one is
erroneously thought to hold particular political opinions . . . )
can satisfy the ‘refugee’ definition.”). In determining whether
persecution existed on account of political opinion, we focus on
whether the persecutor has attributed a political view to the
victim and acted on that attribution. Sangha v. INS, 103 F.3d
1482, 1489 (9th Cir. 1997).

        The BIA did not engage in any substantial discussion
regarding its conclusion that Singh had not established imputed
political opinion, but it did “acknowledge” that Singh’s youth



particular social group and joining in this holding) (collecting
cases). Unfortunately, despite Singh’s counsel’s representation
at oral argument that she hoped she had not waived his
particular social group argument, we conclude that we cannot
reach the merits of this issue because it was not raised in Singh’s
brief. See Laborers’ Int’l Union of N. Am. v. Foster Wheeler
Corp., 26 F.3d 375, 398 (3d Cir. 1994).

                                10
contributed to his “lack of knowledge about his father’s political
and other affiliations.” 6 There is nothing in the case law that
suggests that an asylum applicant claiming imputed political
opinion is required to have any knowledge about the political
belief that is being imputed to him. The focus is instead on
whether this attribution has in fact occurred, and that is what we
look at here.

        In a case presenting facts similar to ours, the Ninth
Circuit Court of Appeals held that a petitioner’s father’s
political opinion was not imputed to the petitioner when
guerillas sought out and beat up only the petitioner’s father,
who, like Singh’s father, was a member of the Akali Dal. Id. at
1490. However, the Sangha court noted that “[i]f the [militant
separatist group] had imputed the Akali Dal political views to


   6
     The BIA also noted that one of the officers who arrested
Singh and his father and one of the officers at the police station
were Sikhs. The Government has also emphasized this in its
response to Singh’s petition. Although this fact might be
relevant to a determination of whether Singh was persecuted, or
had a well-founded fear of persecution, on account of his
religious beliefs, Singh has not pressed such an argument before
us. The record supports the IJ’s finding that not all Sikhs are
separatists. Thus, the fact that some of the officers involved in
the events at issue in this case may also have been Sikhs does
not undercut Singh’s argument that he was mistreated on
account of having his father’s separatist political views imputed
to him.

                               11
[petitioner], it seems likely that the [group] would also have
sought and beat up [petitioner].” Id. The facts in our case fit
well into the hypothetical posed in Sangha.

        Here the police did not only seek out and beat Singh’s
father, whose political views were known to them; they also
arrested, beat, threatened, and repeatedly sought out Singh
himself. Singh, who was deemed “very credible,” testified
about his father’s prior arrests, his father’s activities for a free
Khalistan, and the faction of the Akali Dal to which his father
belonged. He also testified that he was a member of the same
faction of the Akali Dal as his father. Singh further testified that
while the police were beating him and his father, they said that
they were trying to stop Singh’s father from continuing his
work. This context poses a classic imputed political opinion
case. Singh’s credible, uncontradicted testimony compels the
conclusion that the Indian police attributed his father’s separatist
political opinion to him.

       This determination nonetheless does not end our analysis.
The Government also asserts that we should deny Singh’s
petition for review because he failed to establish that any
imputed political opinion was “the motivating factor” behind his
arrest and other mistreatment. We must therefore consider
Singh’s argument that the BIA should have applied a “mixed
motive” analysis to his case and should have concluded that he
was eligible for asylum because he was persecuted, in
significant part, on account of imputed political opinion.

                                12
       B.     “Mixed Motive” Analysis

        The Government argues that the motivating factor behind
Singh’s arrest (as well as his father’s) was a legitimate law
enforcement purpose—investigating the police’s suspicion that
there were illegal firearms in the family home. The Government
is correct that “prosecution for criminal violations of fairly
administered laws is ordinarily not one of the statutory grounds
upon which a claim for asylum can be based.” Janusiak v. INS,
947 F.2d 46, 48 (3d Cir. 1991). However, we (and the BIA
itself) have recognized that an applicant for asylum need not
prove that the persecution he or she suffered (or fears suffering
in the future) occurred solely on account one of the five grounds
enumerated in the INA. Rather, an applicant must show that the
persecution was motivated, at least in part, by one of the
protected characteristics. See Amanfi v. Ashcroft, 328 F.3d 719,
727 (3d Cir. 2003) (noting that the BIA’s decision in In re S-P-
“held that an alien need only prove that the persecutor was
motivated in significant part by a protected characteristic”); In
re S-P-, 21 I. & N. Dec. at 497 (holding that an alien had
established eligibility for asylum where, although there was a
legitimate government attempt to gather intelligence information
from the alien, “an additional underlying reason for the abuse
was the belief that the victim held political views opposed to the
government.”); see also Chang v. INS, 119 F.3d 1055, 1065 (3d
Cir. 1997) (granting petition for review where, inter alia,
petitioner had a well-founded fear of persecution because the
Chinese government, which may have been partially motivated

                               13
by “legitimate concerns of protecting confidential state
information”, “was also motivated, at least in part, by
[petitioner’s] opposition to official policy”).7

        Singh may therefore establish eligibility for asylum even
if, as the Government contends and the BIA found, there was
some “legitimate security purpose” (searching for weapons)
behind his arrest and mistreatment, if he establishes that the
mistreatment was also motivated by the police’s attribution of
his father’s political opinion to him. As stated above, the record
in this case compels the conclusion that Singh established an
imputed political opinion. Singh also testified at length that he
was beaten, arrested, and threatened because of that imputed
political opinion.



    7
      Other Courts of Appeal have also adopted the “mixed
motive” mode of analysis in asylum cases. See, e.g., Singh v.
Ilchert, 63 F.3d 1501, 1509 (9th Cir. 1995) (“[P]ersecutory
conduct may have more than one motive, and so long as one
motive is one of the statutorily enumerated grounds, the
requirements [to establish eligibility for asylum] are satisfied.”);
Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir. 1994) (“The plain
meaning of the phrase ‘persecution on account of the victim’s
political opinion[]’ does not mean persecution solely on account
of the victim’s political opinion. That is, the conclusion that a
cause of persecution is economic does not necessarily imply that
there cannot exist other causes of the persecution.”) (emphasis
in original).

                                14
        As already recounted, while the police were beating
Singh’s father, they talked about his work for a free Khalistan,
and Singh understood these statements as equating to the police
telling his father that they were beating him in order to get him
to stop this work. Singh also testified that, when he and his
father were released, the police inspector threatened that Singh
would be killed if his father continued his activities on behalf of
Khalistan. These statements demonstrate that Singh’s arrest,
subsequent beating, and particularly the threats to his life, were
motivated in significant part by the police’s desire to punish
Singh and his father for the father’s political activities regardless
of any legitimate law enforcement purpose the police may have
had in investigating Singh’s father for harboring illegal
weapons. Cf. In re S-P-, 21 I. & N. Dec. at 494 (stating that
among the factors that should be considered in deciding mixed
motive cases are “indications in the particular case that the
abuse was directed toward modifying or punishing opinion
rather than conduct (e.g., statements or actions by the
perpetrators or abuse out of proportion to nonpolitical ends)”).
Our conclusion that the police were largely motivated by the
political opinion in favor of a separate state for Sikhs that they
imputed to Singh is bolstered by the fact that there is no
evidence in the record that Singh (or his father, for that matter)
was ever questioned about the weapons that were supposedly
being kept in his home during his beating at the police station.
Cf. id. at 495 (applying the mixed motive analysis and finding
that the alien was persecuted on account of his political views
because, among other things, “the harm inflicted upon the

                                 15
applicant in this case went well beyond the bounds of legitimate
questioning for intelligence gathering and continued long after
questioning for this purpose had ended.”).

        Despite this compelling evidence in the record that Singh
was persecuted—in large part, if not entirely—on the basis of
the political opinion that was imputed to him, the Government
contends that he is nonetheless not entitled to relief in light of
our decision in Amanfi, 328 F.3d 719. This case, however, is
nothing like Amanfi. There we held that the mere “mention of
religion” in the petitioner’s testimony was insufficient to
establish persecution on account of religion under the mixed
motive framework when the record demonstrated that the
petitioner’s mistreatment was based on a dispute with private
actors regarding his father’s preaching “and not Amanfi’s or his
father’s belief in Christianity.” 328 F.3d at 727. As discussed
above, Singh did much more than merely mention his father’s
political opinion in relating his story at the hearing before the IJ.
The bulk of Singh’s testimony, in stark contrast to the testimony
in Amanfi, concerned his father’s political activities and the
connection between those activities and the harm that Singh
suffered in the past and fears suffering in the future.

        Moreover, the BIA itself explicitly acknowledged that
Singh’s arrest was “probably related to [his] father’s political
affiliations” in addition to a “legitimate security purpose.” The
BIA’s failure to apply a mixed motive analysis to Singh’s case
after noting that there was likely more one than one reason for

                                 16
Singh’s arrest, one of which was a protected ground under the
INA, is inexplicable. When the mixed motive framework is
properly applied, Singh’s credible, unrebutted testimony
compels the conclusion that the mistreatment he suffered at the
hands of the police after his arrest and the threats that were
made against his life were motivated, at least in significant part,
by the political opinion that was imputed to him. Singh has
therefore established eligibility for asylum.8

                        IV. Conclusion

       Because the record compels the conclusion that Singh
established that the Indian police imputed his father’s political
opinion to him and mistreated him, at least in large part, based


  8
    Because we have determined that Singh is entitled to relief
on the merits of his asylum claim, we need not reach his
additional argument that the BIA’s decision ran afoul of the
Administrative Procedure Act because the legal basis of the
decision was not properly explained. We nonetheless note that
we do not find this argument persuasive. “When deficiencies in
the BIA’s decision make it impossible for us to meaningfully
review its decision, we must vacate that decision and remand so
that the BIA can further explain its reasoning.” Kayembe v.
Ashcroft, 334 F.3d 231, 238 (3d Cir. 2003). Although we have
found the BIA’s reasoning to be erroneous, we do not believe
this is a case in which the BIA’s reasoning was not adequately
explained in its decision such that we could not engage in
meaningful review.

                                17
on that opinion, we grant Singh’s petition for review. The BIA
did not question Singh’s persecution, see note 4 supra, and the
record is completely devoid of evidence rebutting the conclusion
that Singh has a well-founded fear of persecution based upon his
past persecution and the threats the police have made against his
life. We therefore conclude that there are no disputed issues
remaining to be resolved by the BIA on Singh’s asylum claim.

        However, we recognize that the decision whether to grant
asylum lies within the discretion of the Attorney General and
that the Supreme Court has instructed that appellate courts
should, upon reversing an agency decision (particularly a
decision of the BIA), remand the matter to the agency except in
rare circumstances. INS v. Ventura, 537 U.S. 12, 16 (2002) (per
curiam). Thus, we remand this case to the BIA for further
proceedings consistent with this opinion as to Singh’s asylum
claim and his claim for withholding of removal (that was
previously summarily denied by the BIA).9


   9
     As the Government pointed out in its November 3, 2004
letter to our Court, Singh also sought relief under the
Convention Against Torture (“CAT”) before the IJ. The
Government suggested that we remand this case to the BIA for
consideration of that claim. The IJ found, in the context of
discussing whether Singh had suffered past persecution and/or
had a well-founded fear of future persecution, that Singh had
been tortured. However, the IJ granted Singh relief only on his
asylum and withholding of removal claims without mentioning

                               18
his CAT claim. Singh argued in his November 3, 2004 letter to
us that the record in his case supported his claim for CAT relief.
He did not, however, raise the issue of CAT relief in his opening
brief before us. Therefore, although the Government may be
correct that, as a general matter, the BIA errs in failing to
consider a CAT claim once it is raised, we are unfortunately
compelled to conclude that, due to his counsel’s lack of
diligence, Singh has waived that argument here. See Lie v.
Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005) (holding that
petitioner waived any argument relating to the denial of her
CAT claim by not presenting it in her brief). We thus leave to
the BIA the question whether Singh’s CAT claim should be
reinstated on remand.

                               19
