                                                                              FILED
                             NOT FOR PUBLICATION                              OCT 21 2014

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



                             FOR THE NINTH CIRCUIT


SWARAJ SINGH,                                    No. 12-72309

               Petitioner,                       Agency No. A089-318-735

  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 October 9, 2014
                               Seattle, Washington

Before: PAEZ, BYBEE, and CALLAHAN, Circuit Judges.

       Swaraj Singh petitions this court for review of the Board of Immigration

Appeals’s (“BIA”) denial of his claims for asylum, withholding of removal, and

protection under the Convention Against Torture. For the reasons stated herein, we

grant the petition.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The BIA commits reversible error when it “fail[s] to mention highly

probative or potentially dispositive evidence.” Cole v. Holder, 659 F.3d 762, 772

(9th Cir. 2011). The BIA denied Singh’s asylum application based, in part, on its

conclusion that Singh had not established past persecution. However, in drawing

that conclusion, the BIA considered only Singh’s “questioning by the Indian police

and being punched in the face.” It made no mention of Singh’s allegations that

Khalistan Liberation Force (“KLF”) members threatened to kill him and held a gun

to his head, or of the murder of Singh’s brother, Gobinder. These facts formed an

important basis of Singh’s asylum claim, and the BIA erred in failing to consider

them for two reasons.

      First, “we have consistently held that death threats alone can constitute

persecution,” Navas v. I.N.S., 217 F.3d 646, 658 (9th Cir. 2000) (collecting cases),

and where death threats are combined with physical violence or displays of

imminent force, a petitioner is even more likely to be able to establish past

persecution. See, e.g., Ruano v. Ashcroft, 301 F.3d 1155, 1160 (9th Cir.2002)

(finding past persecution where petitioner was threatened by men who had “closely

confronted” him and drawn their pistols in his presence). Thus, Singh’s statement

that the KLF members held a gun to his head when they threatened him was a




                                          2
particularly important aspect of his claim to consider in assessing whether he had

experienced past persecution.

      Second, applicants can establish past persecution when threats are coupled

with harm to people close to the applicant. See, e.g., Khup v. Ashcroft, 376 F.3d

898, 904 (9th Cir. 2004) (holding that threats combined with the murder of a

fellow preacher constituted past persecution). Therefore, the BIA should have

considered the KLF members’ threats in conjunction with his brother Gobinder’s

murder.

      The BIA erred in failing to consider two of the essential aspects of Singh’s

claim of past persecution, and we remand so that it may do so. We note that Singh

argued that he was targeted on account of imputed political opinion before the

BIA, and the BIA appeared to conduct its analysis of the police’s treatment of

Singh under the assumption that, were Singh to establish persecution, this would

be the protected ground underlying his claim. Should the BIA determine that these

incidents amount to past persecution, it should reconsider whether Singh was

targeted on account of a protected ground.

      Petition GRANTED and REMANDED.




                                         3
                                                                                 FILED
Swarag Singh v Holder 12-72309                                                   OCT 21 2014

                                                                           MOLLY C. DWYER, CLERK
CALLAHAN, Circuit Judge, dissenting.                                           U.S. COURT OF APPEALS



      I respectfully dissent. In order to obtain asylum, a petitioner must show that

he was or will be persecuted based on a protected ground. 8 U.S.C.

§ 1158(b)(1)(B)(I). In my view, the BIA’s determination that Petitioner Singh had

not made the required showing was based on substantial evidence.

      Here, the BIA held that Singh failed to show any persecution on account of

an imputed political opinion. It is true that a petitioner may show he has been

persecuted on account of an imputed political opinion when he is accused by the

police of terrorism based solely on his relationship with a known terrorist. See

Singh v. Holder, 764 F.3d 1153, 1159–60 (9th Cir. 2014). However, the BIA’s

finding in this case that Singh failed to show past persecution on account of an

imputed political opinion was based on substantial evidence because the few

instances of police questioning that he endured did not rise to the level of

persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003)

(unfulfilled threats constituted harassment, not persecution); cf. Khup v. Ashcroft,

376 F.3d 898, 904 (9th Cir. 2004), (finding persecution when the police threatened

the petitioner after torturing, killing, and dragging a fellow preacher’s body

through the streets). Further, in his petition to the Ninth Circuit, Singh disclaims

any argument that he was persecuted on account of an imputed political opinion.
See Pet’r’s Br. at 30 (“Mr. Singh never claimed to have been persecuted on account

of his actual or imputed political opinion . . . .”). Thus, Singh waived this

argument on appeal. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010)

(noting that the court generally will not “take up arguments not raised in an alien’s

opening brief.”).

      Despite having only argued to the BIA that he had been persecuted on

account of an imputed political opinion, Singh now faults the BIA for failing to

consider whether he had been persecuted on account of his religion or membership

in a particular social group. However, the BIA cannot be faulted for its failure to

consider arguments that a petitioner never properly raised before it. See 8 U.S.C. §

1252(d)(1) (stating that a petitioner must exhaust all remedies before judicial

review of a final order of removal is appropriate); Omari v. Holder, 562 F.3d 314,

321 (5th Cir. 2009) (interpreting the statute as barring appellate consideration of

issues not raised before the BIA). Further, Singh even now does not explain how

he was persecuted on account of his religion or social group. Nor does he identify

his social group. Thus remand to consider whether he was persecuted on another

protected ground is not warranted.1


      1
       Singh recently filed a motion to reopen with the BIA based on his
conversion to Christianity in October 2012. See Pet’r’s Mot. to Stay Proceedings,
September 11, 2014, ECF No. 25. It is unclear whether any of his current claims
are moot in light of this conversion, though that motion is not at issue in the instant
       Because the BIA’s conclusion that Singh failed to show past persecution on

account of an imputed political opinion was based on substantial evidence, and

because Singh failed to raise before the BIA the argument that he had been

persecuted on some other protected ground, I would deny Singh’s petition.




petition.
