                                                                            FILED
                             NOT FOR PUBLICATION                            FEB 25 2014

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



                             FOR THE NINTH CIRCUIT


NAVTEJ SINGH,                                    No. 09-72830

               Petitioner,                       Agency No. A098-822-026

  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 November 6, 2013
                             San Francisco, California

Before: REINHARDT, NOONAN, and WATFORD, Circuit Judges.

       Navtej Singh, a native and citizen of India, petitions for review of a Board of

Immigration Appeals’ (BIA) decision affirming an immigration judge’s (IJ) denial

of his applications for asylum and withholding of removal. We have jurisdiction

under 8 U.S.C. § 1252(a)(1). We grant the petition and remand for further

proceedings.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The IJ and BIA found that Singh testified credibly but relied on Dinu v.

Ashcroft, 372 F.3d 1041 (9th Cir. 2004) to find that Singh had not demonstrated

that the persecution he suffered was on account of an imputed political opinion or

his membership in a particular social group. The factual findings underlying the

agency’s denial of relief are reviewed under the substantial evidence standard.

Kumar v. Gonzales, 444 F.3d 1043, 1049 (9th Cir. 2006). We review de novo

“purely legal questions” and “mixed questions of law and fact requiring us to

exercise judgment about legal principles.” United States v. Ramos, 623 F.3d 672,

679 (9th Cir. 2010).

      We find Singh’s case distinguishable from Dinu. Unlike the petitioner in

Dinu, Singh was not suspected of any crime. Yet he was tortured for ten days and

given no reason for his arrest except that he was Gill’s relative. Even if the Indian

authorities might have had other motives for targeting Singh, their actions may

amount to persecution if they were motivated, at least in part, by a protected

ground. Hoque v. Ashcroft, 367 F.3d 1190, 1198 (9th Cir. 2004). In contrast to

Dinu, where the petitioner presented “no direct evidence” that he was persecuted

on account of a protected ground, Dinu, 372 F.3d at 1044, here the IJ failed to

consider whether Singh had presented evidence that he may have been persecuted,

at least in part, because of his familial ties to Gill. See Borjas v. INS, 175 F.3d 732,


                                           2
735-36 (9th Cir. 1999) (en banc), superseded by statute, Real ID Act of 2005, Pub.

L. No. 109-13, div. B, 119 Stat. 231, as recognized in Parussimova v. Mukasey,

555 F.3d 734, 739-40 (9th Cir. 2009); see also Mihalev v. Ashcroft, 388 F.3d 722,

727 (9th Cir. 2004) (citing Navas v. INS, 217 F.3d 646, 656 (9th Cir. 2000)).



      Finally, the IJ did not determine whether Gill’s family presents the kind of

“kinship ties” that constitute a “particular social group.” Gonzales v. Thomas, 547

U.S. 183, 186 (2006). Without prior resolution by the BIA, the proper course “is

to remand to the agency for additional investigation or explanation.” INS v.

Ventura, 537 U.S. 12, 16 (2002) (internal quotation marks omitted). We remand to

the BIA with instructions to consider whether Gill’s family constituted a particular

social group within the statutory meaning and, if so, to remand to the IJ, to

reconsider the denial of asylum and withholding of removal.



      PETITION FOR REVIEW GRANTED. REMANDED.




                                          3
                                                                             FILED
Singh v. Holder, No. 09-72830                                                 FEB 25 2014

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



      Both the IJ and the BIA considered and rejected Singh’s claim that he was

persecuted at least in part because of his familial ties to Gill. Singh points to no

direct evidence in the record that compels a contrary conclusion. See Dinu v.

Ashcroft, 372 F.3d 1041, 1044 (9th Cir. 2004). The record instead supports the

BIA’s conclusion that Singh suffered persecution during the course of a criminal

investigation, which, while reprehensible, does not afford a basis for relief. See id.

at 1045. The majority says “Singh was not suspected of any crime,” Maj. Op. at 2,

but the record shows that police officers suspected Singh of assisting in a high-

profile prison escape. Singh’s most egregious mistreatment occurred during the

investigation of that escape, and he testified that officers repeatedly questioned him

about it. I would deny the petition.
