                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       MAY 15 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

SATNAM SINGH,                                   No.    17-72405

                Petitioner,                     Agency No. A087-995-270

 v.
                                                MEMORANDUM*
WILLIAM P. BARR, Attorney General,

                Respondent.

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

                               Submitted May 12, 2020**
                                 Pasadena, California

Before: WARDLAW, COOK,*** and OWENS, Circuit Judges.

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

of Immigration Appeals’ (BIA) final removal order dismissing his appeal from the

Immigration Judge’s (IJ) decision denying him asylum, withholding of removal,


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Deborah L. Cook, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
and protection under the Convention Against Torture (CAT). As the parties are

familiar with the facts, we do not recount them here. We review questions of law

de novo and the BIA’s factual findings for substantial evidence. Lopez-Vasquez v.

Holder, 706 F.3d 1072, 1078 (9th Cir. 2013). We have jurisdiction under 8 U.S.C.

§ 1252. We grant the petition in substantial part, and remand to the BIA for further

consideration consistent with this disposition.

      1.     For the first time in his Reply Brief, Singh argues that the BIA lacked

jurisdiction over his case in light of Pereira v. Sessions, 138 S. Ct. 2105 (2018).

However, Pereira considered only whether the issuance of a defective notice to

appear stops the accrual of continuous residency for petitioners seeking

cancellation of removal. Karingithi v. Whitaker, 913 F.3d 1158, 1160–61 (9th Cir.

2019). Singh’s defective notice to appear therefore did not strip the BIA of

jurisdiction over this case. Id.

      2.     In denying Singh’s applications for asylum and withholding of

removal, the BIA held that the government had rebutted any presumption of future

persecution because circumstances had fundamentally changed in Punjab and

because Singh could avoid such persecution by relocating within India. See 8

U.S.C. § 1208.16(b)(1). On appeal, the government mentions changed

circumstances only in a footnote, with no argument in support of the BIA’s

findings. The government therefore forfeits any argument that the BIA’s changed


                                          2                                    17-72405
circumstances finding was supported by substantial evidence. United States v.

Strong, 489 F.3d 1055, 1060 n.4 (9th Cir. 2007) (“The summary mention of an

issue in a footnote, without reasoning in support of the [party’s] argument, is

insufficient to raise the issue on appeal.” (citation omitted).

      As for internal relocation, the BIA failed to conduct a “reasoned analysis

with respect to a petitioner’s individualized situation.” Narinder Singh v.

Whitaker, 914 F.3d 654, 661 (9th Cir. 2019). The BIA spent, at most, two

paragraphs considering whether Singh could relocate within India. The BIA did

not meaningfully apply any of the factors listed in 8 C.F.R. § 1208.13(b)(3) to

Singh’s individual circumstances. See Knezevic v. Ashcroft, 367 F.3d 1206, 1214–

15 (9th Cir. 2004) (remanding reasonableness question after BIA failed to consider

several factors under § 1208.13(b)(3)). It is not enough to show that a petitioner is

physically capable of relocating; instead, the BIA must consider “the persons or

entities that caused the past persecution” and “the nature and extent of the

persecution” to determine whether the petitioner would be “substantially safer in a

new location.” Narinder Singh, 914 F.3d at 660–61. We remand the BIA’s

decisions regarding asylum and withholding so it can complete this necessary

analysis.

      3.     To receive humanitarian asylum, the applicant must show either

“compelling reasons for being unwilling or unable to return to the country [of


                                           3                                   17-72405
nationality] arising out of the severity of the past persecution” or “a reasonable

possibility that he or she may suffer other serious harm upon removal to that

country.” 8 C.F.R. § 1208.13(b)(1)(iii). This form of relief is reserved for

“atrocious forms of persecution,” and this is not the case here. Kebede v. Ashcroft,

366 F.3d 808, 812 (9th Cir. 2004) (citation omitted). Substantial evidence supports

the BIA’s decision denying humanitarian asylum.

      4.     The BIA failed to properly review Singh’s application for CAT relief

based on the totality of the circumstances. “CAT’s implementing regulations

explicitly require the agency to consider ‘all evidence relevant to the possibility of

future torture,’” which “includes the petitioner’s testimony and country conditions

evidence.” Parada v. Sessions, 902 F.3d 901, 914–15 (9th Cir. 2018) (quoting

Cole v. Holder, 659 F.3d 762, 770–72 (9th Cir. 2011)). Here, the BIA failed to

discuss the voluminous country conditions evidence that Singh introduced into the

record. To the extent the BIA may have considered some country conditions

evidence in connection with Singh’s asylum and withholding claims, the BIA

nonetheless committed reversible error by failing to evaluate that evidence

explicitly in connection with Singh’s CAT claim. Parada, 902 F.3d at 916. We

remand so the BIA can perform the proper analysis.

      5.     The BIA also improperly denied Singh’s motion to reopen or remand

proceedings to the IJ. Such a motion should be granted if the “evidence sought to


                                           4                                    17-72405
be offered is material and was not available and could not have been discovered or

presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). Singh’s proffered

evidence shows that the Congress Party—whose members allegedly persecuted

Singh in Punjab—won the 2017 regional elections in Punjab. This directly rebuts

the BIA’s finding that circumstances have fundamentally changed, which was

based largely on the Bharatiya Janata Party’s rise to power in 2014. The BIA

abused its discretion by denying Singh’s motion, and we remand so Singh may

introduce this new evidence into the record.

      PETITION FOR REVIEW GRANTED IN PART, DENIED IN PART,

AND REMANDED ON AN OPEN RECORD.1




      1
          The respondent shall bear costs on appeal.

                                           5                                17-72405
