                            In the
    United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 04-3125
HARPAL SINGH,
                                                        Petitioner,
                                v.


ALBERTO R. GONZALES,
                                                       Respondent.
                         ____________
                Petition for Review of a Decision of
                the Board of Immigration Appeals.
                          No. A73-423-013
                         ____________
       SUBMITTED MAY 11, 2005*—DECIDED AUGUST 5, 2005
                         ____________




    Before COFFEY, MANION, and WILLIAMS, Circuit Judges.
  MANION, Circuit Judge. Harpal Singh seeks asylum and
withholding of removal. An immigration judge, however,
found that Singh assisted or otherwise participated in the
wrongful persecution of others while a member of a local


*
  On May 9, 2005, we granted Singh’s motion to waive oral
argument; thus, this appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(f); 7th Cir. R. 34(e).
2                                                No. 04-3125

police force in India. The immigration judge therefore
denied asylum and withholding of removal. The Board of
Immigration Appeals (“BIA”) affirmed, as do we.
  In 1979, Singh went to work for a local police department
in Punjab, India. In 1982, he became a “head constable.” In
that position, he managed other constables and performed
customary police duties, e.g., patrolling, interrogating,
investigating, preparing reports, and taking people into
custody.
  Sikhism is a minority religion in India, which is domi-
nated by the Hindu religion. There is, however, a substantial
Sikh population in India’s Punjab region. A Sikh separatist
movement grew in Punjab during the course of the twenti-
eth century, with considerable violence erupting in the early
to mid-1980s between Sikh militants and the authorities. The
intense upheaval persisted until the militants were quelled
in the mid-1990s.
  Singh, himself a non-militant Sikh, served as head consta-
ble during those hostilities. Stopping true militants—who
were, for example, perpetrating indiscriminate bombings on
railway stations and other public places—is certainly a
legitimate police activity. Nevertheless, consistent with our
own State Department reports, Singh concedes that the
Punjabi police force crossed the line. They systematically
arrested without cause innocent Sikhs accused of being mili-
tants. The police further tortured and sometimes killed the
detainees, then falsely claimed that they violently resisted
arrest. Singh denies direct involvement in this acknowl-
edged wrongdoing. Yet, Singh does admit that he brought—
supposedly unwittingly but certainly repeatedly—innocent
Sikhs into the police station where they were wrongfully
beaten by others. Singh similarly concedes that he went on
nighttime raids that led to false charges against and beatings
of innocent Sikh families. He asserts that his role in these
No. 04-3125                                                    3

raids was limited to standing guard outside homes to
prevent occupants from escaping while other officers were
unjustifiably arresting and beating the family members
inside. Additionally, Singh states that while he was per-
sonally opposed to his police force’s oppression of his
fellow Sikhs, he elected to continue working for the police
for financial reasons.
   Finally, however, when a member of his family was
affected, Singh had enough. In November 1993, the police
raided a local college, arresting several individuals accused
of being Sikh militants, including Singh’s cousin. Singh did
not participate in this particular raid because he was late for
work. Nonetheless, Singh was on duty when his cousin
arrived at the police station. The police chief had Singh
accompany him into the cousin’s interrogation room. There
is no indication that the chief or any other officer knew that
Singh was related to their subject at that juncture. In the
room, Singh’s cousin was lying handcuffed and unclothed
on the floor. The chief interrogated the cousin for informa-
tion about militants and their activities and did so while
kicking the cousin in the stomach. When the chief became
dissatisfied with the cousin’s denials, he had the cousin
hung upside down and beaten by other officers with
wooden rods, causing the cousin to vomit.
  To all of this, Singh was an observer, but, at some point
during the session, the police chief told Singh to retrieve a
belt studded with nails to be used against the cousin. Singh
did not comply with the chief’s order due to his self-de-
scribed state of shock at witnessing a relative being tortured.
The chief berated Singh, yelling that Singh was “crazy” for
not following orders. The chief then dismissed Singh from
the room. Later, in the chief’s office, the chief told Singh that
Singh should consider himself “lucky” because the chief
was not going to suspend Singh since it was the first time
4                                                 No. 04-3125

that Singh had disobeyed the chief’s orders. Prior to his
cousin’s ordeal, Singh served under the direct command of
this particular police chief for approximately nine months.
Even before he began working for this chief, Singh says that
he knew that this chief was “corrupt and notorious,”
describing the chief as the most “vicious person in the
whole Punjab Police Force” and as having the “worst record
of torturing Sikhs and killing them.”
  Fearing that the chief would continue to live up to this
brutal billing, Singh went to speak with his cousin after the
interrogation and after another detainee arrested with the
cousin had died in the jail. The cousin told Singh that he
was innocent, denying all involvement in the militant move-
ment. Shortly thereafter, Singh snuck his cousin out of the
police station. Later discovering that Singh had facilitated
the escape, the police chief raided Singh’s home and
arrested Singh. At the police station, the chief interrogated
and beat Singh much as he had done with Singh’s cousin.
The next day, the police released Singh on the condition
that, within two weeks, he had to bring his cousin back to
the station or otherwise assist the police in capturing the
cousin. If he did so, Singh would be forgiven. If he failed, he
would be subject to rearrest and further punishment.
  In the face of such odious alternatives, Singh fled. From
December 1993 to August 1994, he hid at a relative’s home
in another Indian village. Then, using a false identity, Singh
traveled to Thailand. From there, he made his way to Belize,
Guatemala, and Mexico and ultimately crossed into the
United States in December 1994. According to Singh’s
conversations with his relatives in India, he is still wanted
by the police.
  The United States government initiated removal proceed-
ings against Singh in 1999. Singh conceded his removability
but sought relief in the form of asylum, 8 U.S.C. § 1158, and
No. 04-3125                                                        5

withholding of removal, 8 U.S.C. § 1231. The immigration
judge denied each application on the basis of her finding
that Singh had assisted or otherwise participated in the
wrongful persecution of Sikhs. Singh appealed. The BIA
summarily affirmed. Singh now petitions this court for
        1
review.


1
    The immigration judge did grant Singh relief under the
Convention Against Torture (“CAT”). The immigration judge’s
opinion is ambiguous as to the exact relief awarded; while
she labeled it as “withholding of removal” under the CAT, it
strongly appears that the relief granted is “deferral of removal”
under the CAT. See 8 C.F.R. §§ 208.16(d)(2), 208.17(a),
1208.16(d)(2), & 1208.17(a); Vukmirovic v. Ashcroft, 362 F.3d 1247,
1253 (9th Cir. 2004); 3 Charles Gordon, et al., Immigration Law and
Procedure § 33.10[4] (Rev. ed. 2005). When Singh appealed to the
BIA, the government cross-appealed the CAT ruling to correct
this mislabeling. Curiously however, the BIA affirmed on the
cross-appeal and did so without comment. The government
moreover has not appealed the BIA’s cross-appeal decision, and,
thus, the CAT matter is not before us. We do however note that
despite the apparent grant of deferral of removal under the CAT,
there is a still a live case/controversy for us to adjudicate in this
appeal. That is because deferral of removal is “a less durable form
of relief” and is not as desirable as the other forms of relief that
the immigration judge denied. 3 Gordon, Immigration Law and
Procedure § 33.10[4]; compare id. with id. at §§ 33.05[7] & 33.06[6].
Specifically, “[d]eferral of removal has two significant limitations:
(1) it does not confer a right to release for aliens in . . . [the
government’s] custody, and (2) it may be terminated at any
time.” Id. at § 33.10[4][b] (citing 8 C.F.R. §§ 208.17(c)-(f) &
1208.17(c)-(f)). Alternatively, even if the immigration judge’s label
given to the relief was considered accurate, we would still have
a live dispute before us because withholding of removal is
different from and generally not as favorable as asylum. See id. at
                                                     (continued...)
6                                                      No. 04-3125

  Congress has unequivocally prohibited asylum and with-
holding of removal for any alien who “ordered, incited, as-
sisted, or otherwise participated in the persecution” of any
individual on account of the individual’s “race, religion,
nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i),
1231(b)(3)(B)(i); see also 8 U.S.C. § 1158(b)(1) (applying
§ 1101(a)(42)). The question here is whether Singh “assisted”
or “otherwise participated” in the persecution of Sikhs in
India.
  This case presents our first opportunity to squarely
address the terms “assisted” or “otherwise participated” in
persecution for purposes of asylum under §§ 1101(a)(42)
and 1158(b)(2)(A)(i) and of withholding of removal under
§ 1231(b)(3)(B)(i) in a published opinion. See Mousa v. INS,
223 F.3d 425, 428-29 (7th Cir. 2000) (raising issue but resolv-
ing case on another ground); see also Ofosu v. McElroy, 98
F.3d 694, 701 (2d Cir. 1996) (different procedural posture but
observing absence of published authority). We have applied
these terms in a different statutory context concerning the
deportation of former Nazi concentration camp guards and
similar officers. See 8 U.S.C. §§ 1182(a)(3)(E)(i) &
1227(a)(4)(D); see, e.g., Naujalis v. INS, 240 F.3d 642, 646-47
(7th Cir. 2001); Tittjung v. Reno, 199 F.3d 393, 397-99 (7th Cir.
1999). In that statutory setting, which exclusively pertains to
Nazis from the period of 1933 to 1945, our case law is quite
clear: membership in the ranks of Nazi guards is sufficient
to constitute assistance in prohibited persecution. See
Naujalis, 240 F.3d at 646-47; Tittjung, 199 F.3d at 397-99
(citing Kalejs v. INS, 10 F.3d 441, 444 (7th Cir. 1993); Kairys


(...continued)
§§ 33.05[7], 33.06[6], & 33.10[4][a]; see also Tsevegmid v. Ashcroft,
336 F.3d 1231, 1234 (10th Cir. 2003).
No. 04-3125                                                     7

v. INS, 981 F.2d 937, 942-43 (7th Cir. 1992); Kulle v. INS, 825
F.2d 1188, 1192-93 (7th Cir. 1987); Schellong v. INS, 805 F.2d
655, 661 (7th Cir. 1987)). This line of cases, however, is not
fully compatible with the present statutory and factual situ-
ation for an important reason. Unlike Nazi concentration
camps, whose complete existence was premised upon the
persecution of innocent civilians, see Schellong, 805 F.2d at
661, local Punjabi police departments served traditional,
legitimate law enforcement purposes and did not exclu-
sively engage in the persecution of innocent Sikhs, see id.
(observing difference between Nazi concentration camp
guards and local police officers).
   Singh’s case therefore requires a certain amount of “line-
drawing”; a distinction must be made between genuine
assistance in persecution and inconsequential association
with persecutors. Fedorenko v. United States, 449 U.S. 490,
512-13 n.34 (1981) (different statutory setting but seminal
case on persecution assistance matters; indicating that pers-
ecution cases beyond the Nazi-guard context “may present
more difficult line-drawing problems.”). In other words,
simply being a member of a local Punjabi police department
during the pertinent period of persecution is not enough to
trigger the statutory prohibitions on asylum and withhold-
ing of removal. See Hernandez v. Reno, 258 F.3d 806, 813-14
(8th Cir. 2001) (citing Fedorenko, 449 U.S. at 512-13 n.34); see
also Vukmirovic v. Ashcroft, 362 F.3d 1247, 1251-52 (9th Cir.
2004). Rather, for the statutory bars contained in
§§ 1101(a)(42) and 1158(b)(2)(A)(i) as well as in § 1231(b)(3)
(B)(i) to apply, the record must reveal that the alien actually
assisted or otherwise participated in the persecution of an-
other on account of race, religion, nationality, membership
in a particular social group, or political opinion. See, e.g., Bah
v. Ashcroft, 341 F.3d 348, 351 (5th Cir. 2003) (per curiam).
Furthermore, as an applicant has the burden of showing his
8                                                 No. 04-3125

entitlement to asylum and withholding of removal, see
Jamal-Daoud v. Gonzales, 403 F.3d 918, 922, 925 (7th Cir.
2005), it follows that, “[i]f there is any evidence that an
applicant for either kind of relief has assisted or participated
in persecution, that individual has the burden of demon-
strating by a preponderance of the evidence that he has not
been involved in such conduct.” Hernandez, 258 F.3d at 812.
   Here, the immigration judge found that Singh assisted or
otherwise participated in prohibited persecution. On this
record, that finding is supported by substantial evidence.
See Ali v. Ashcroft, 395 F.3d 722, 726-27 (7th Cir. 2005) (“[We]
defer to the BIA’s factual findings, reversing them only if
they lack the support of substantial evidence in the record.
Because the BIA affirmed the [immigration judge’s] . . .
determination without opinion, the [immigration judge’s]
opinion becomes the basis of our review.”) (citations
omitted). By his own admission, Singh was aware that his
fellow officers were systematically persecuting innocent
Sikhs from about 1983 until the time he fled in 1993. For his
part, Singh took innocent Sikhs into custody during that
period and transported them to the police station, where he
knew they would be subjected to unjustified physical abuse.
Further, Singh participated in raids on the homes of inno-
cent Sikh families, guarding homes to prevent escapes while
other officers were inside arresting and beating family
members without cause. Singh’s role in these events quali-
fies as actual assistance or participation in persecution.
Singh complains that others decided who was to be arrested
and whose homes were to be raided and that he was simply
following orders; he further claims that he did not learn that
people he was handling/guarding were innocent Sikhs until
after the fact. Even if his assertions are true, they do not
excuse his repeated role in such events over the course of a
decade. Given the repetition of the conduct over an ex-
No. 04-3125                                                   9

tended period and his admitted awareness that police
persecution of innocent Sikhs was ongoing during that
period, his protestations of case-specific ignorance do not
alter the conclusion that he assisted or participated in the
persecution. Additionally, Singh vows that he was person-
ally opposed to this persecution, becoming increasing bitter
toward the police force on account of its campaign against
innocent Sikhs. Nevertheless, during his lengthy term of
employment, he refused to quit the police force due to his
need for a steady paycheck and his apparent desire to avoid
searching for work with a different employer. Just because
Singh supposedly did not share in the persecutory motive
and his assistance/participation was premised upon
pecuniary concerns does not change his fate under
§§ 1101(a)(42), 1158(b)(2)(A)(i) and 1231(b)(3)(B)(i) as these
statutes indicate “that the alien’s personal motivation [for
assisting or otherwise participating in the persecution] is not
relevant.” Bah, 341 F.3d at 351.
   In addition, Singh’s detailed account of the brutalization
of his cousin and his subsequent light reprimand from the
police chief is particularly telling. The chief required Singh’s
presence in the interrogation room, not because of a known
relation to the cousin, but as matter of routine. This strongly
indicates that Singh was regularly present for such sessions
with persons who were unjustly accused. Further, Singh
testified that he did not respond to the chief’s request for a
nail-studded belt because he was numbed by seeing his
cousin subjected to such treatment and not the treatment
itself. Singh’s testimony thus suggests that had it been
anyone other than one of his own relatives, he would have
complied with the chief’s order. These conclusions are
further supported by the reasoning behind the chief’s
reprimand. The chief did not suspend Singh because this
was the first time Singh disobeyed him. Ordering someone
10                                               No. 04-3125

to retrieve a belt lined with protruding nails so it can be
used against another is shockingly abhorrent. If this order
was the first order Singh disobeyed during his nine months
with this “notorious” police chief, it is reasonable to assume
that Singh obeyed previous orders that were similarly
despicable. Singh’s account of this entire episode bolsters
the conclusion that, before his cousin’s ordeal, Singh
assisted or otherwise participated in wrongful persecution.
The record demonstrates that the immigration judge had
substantial evidence to conclude that Singh’s conduct is the
type that Congress intended to target by including the terms
“assisted” and “otherwise participated” in §§ 1101(a)(42),
1158(b)(2)(A)(i), and 1231(b)(3)(B)(i).
  For all these reasons, we see no reason to disturb the
immigration judge’s factual finding that Singh actually as-
sisted or otherwise participated in the persecution of Sikhs
in India. Consequently, the applications for asylum and
withholding of removal are subject to mandatory denial in
accordance with the congressional intent expressed in
§§ 1101(a)(42), 1158(b)(2)(A)(i), and 1231(b)(3)(B)(i). There-
fore, despite aiding his cousin and suffering on account of
that aid, Singh’s past wrongs preclude him from obtaining
the relief he now seeks. The petition for review is DENIED.

A true Copy:
        Teste:

                          _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




                    USCA-02-C-0072—8-5-05
