                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-28-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4255




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                                                                  NOT PRECEDENTIAL


                          IN THE UNITED STATES COURT
                                   OF APPEALS
                              FOR THE THIRD CIRCUIT


                                      NO. 04-4255


                                LAKHWINDER SINGH,
                                    Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                               Respondent




        On Petition for Review of an Order of the Board of Immigration Appeals
                                   No. A97-390-364
                        Immigration Judge: Hon. Mirlande Tadal


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 25, 2006

                BEFORE: RENDELL and STAPLETON, Circuit Judges,
                          and GILES,* District Judge

                           (Opinion Filed February 28, 2006 )




*Hon. James T. Giles, Chief Judge, United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
                                OPINION OF THE COURT




STAPLETON, Circuit Judge:


       Petitioner Lakwhinder Singh is a native and citizen of India and a member of the

Sikh religion. He seeks review of an order of the Board of Immigration Appeals (“BIA”)

denying him asylum, withholding of removal, and relief under the Convention Against

Torture. We will deny the petition for review.

                                              I.

       Singh gave the following testimony before the Immigration Judge (“IJ”) in support

of his petition for relief.

       Singh joined the Akali Dal (Mann) political party in 1998 because of its advocacy

for the rights of Sikh people and related causes. His father is also a member of the party.

As a member of the party, Singh was involved with the collection of money and in

providing assistance for families whose family members were killed in the 1984 Sikh

massacre.

       Singh testified that he was arrested by Indian police in Punjab on three occasions.

He was first arrested during a June 1999 rally against the government. Singh testified

that, when the police arrived at a rally organized to protest the destruction of a temple, the



                                              2
police began “beating the people who were having the rally.” App. at 121. Singh himself

was beaten and then arrested. He was detained at the police station for three days and

beaten twice “with sticks and the butts of the gun and leather strap.” Id. at 122. Singh

testified that the police berated him for speaking out against the government and for his

support for an independent nation for Sikhs. After he was released without being

charged, Singh went to the hospital and stayed for roughly three days.

       Singh was again arrested in March 2000 in connection with his participation in a

demonstration in front of a government office. After the demonstration, the police

arrested Singh when he was attempting to pick up his scooter. Singh testified that the

police removed his turban and pulled his hair. He was then held for two days in a police

station with his hands tied behind his back. While Singh was detained, two policemen

beat him with a stick and the butt of a rifle while Singh was held upside down. Singh

testified that the police told him to “stop the activities of the party.” Id. at 127.

       Singh testified that he was arrested for a third time when the police raided his

house at night. He testified that the police tied him and beat him. Singh was then held at

the police station for two days. He testified that while at the station, the police kicked

him and dragged him through the station by his hair. Singh’s father was able to secure

Singh’s release through a “heavy” bribe and by promising that Singh would not take part

in other political activities.

       Following this last arrest, Singh went to live with relatives in another town. While



                                               3
he was gone, the police raided the homes of relatives looking for him. As a result,

Singh’s father sent him out of the country in the summer of 2003. Singh has received

reports from his father that the situation in Punjab remains hostile for members of the

Akali Dal (Mann) party. Singh testified that he believes that if he returns to India he will

be arrested and killed.

       As the IJ noted, Singh gave the following testimony on cross-examination:

              The respondent testified on cross that the Akali Dal Mann is not an
       extremist organization. The respondent testified that to the best of his
       knowledge this organization does not promote violence and has never at any
       time attacked police, the police officers or made any threat against the
       government. The respondent confirmed that the Akali Dal Mann operates
       peacefully and has not enticed any form of violence in India.

               The respondent testified that he traveled from India by plane and he
       boarded the plane at the Delhi International Airport. The respondent
       claimed that he presented his own passport which was issued to him in 1996
       to the immigration authorities at the Delhi airport. The respondent testified
       that the passport presented in his home country to depart India is in the
       possession of an agent. The agent took access of the passport when he
       arrived in Argentina. The respondent was asked how it was that he was
       able to leave India without any difficulties. The respondent testified that he
       was not suspected as being a terrorist, hence his ability to leave India
       without any encounters or any inquiries at the airport.

                                            ***

              The respondent acknowledged that Akali Dal Mann is a legal party
       in India and Mr. Mann, the leader of Akali Dal Mann is actually a member
       of parliament.

              The respondent was specifically asked about the nature of injuries, if
       any as a result of the alleged beatings on those three arrests. The
       respondent testified that as to the third arrest which allegedly [sic] in
       November, 2002 the lasting injuries that he sustained was that one of his

                                             4
       elbows had a small scratch. As to the first arrest the respondent
       acknowledged on cross examination that he suffered no serious injury. He
       stated that he had severe pain on most or part of his body. As to the second
       arrest the respondent was asked whether he suffered any serious injury. The
       respondent testified that his entire body suffered pain.

App. at 62-63.

       In addition to his own testimony, Singh offered at the hearing background

materials on conditions in Punjab, a letter from his father corroborating his account of his

arrests, a letter from the leader of the Akali Dal (Mann) party, and a document purporting

to be a certificate of a “Medical Officer” regarding Singh’s hospitalization following his

first alleged assault.

                                             II.

       Singh testified that he came to this country because he was afraid of being further

persecuted by the Indian police because of his membership in the Akali Dal (Mann) party.

He insists that he fears such persecution if he returns to India. Both the IJ and the BIA

declined to credit Singh on this score and concluded that he had “failed to meet his

burden of proving that he is a refugee.” App. at 66.1 We must uphold this conclusion

unless “no reasonable fact finder could make that finding on the administrative record.”

Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003).

   1
    Singh contends that the BIA and the IJ analyzed his case is disparate ways and
decided it on different grounds. On the contrary, we read the BIA’s opinion as being in
complete agreement with the IJ’s oral opinion. Both found Singh’s testimony to be
unpersuasive, primarily because of its inconsistency with recent background material and
the medical report, and because of its internal inconsistency. Both concluded that Singh
had accordingly failed to carry his burden.

                                             5
       The primary problem that the IJ and the BIA had with Singh’s testimony was that

it seemed “inconsistent with the recent background materials.” App. at 3. After a

thorough review of the background materials submitted by both sides, the IJ concluded

that, while Punjab Sikhs are occasional victims of violence at the hands of the police or

rival factions within the Akali Dal (Mann) movement, it did not appear that “Akali Dal’s

are systematically mistreated by the authorities because of their membership with the

Akali Dal Mann or Akali Dal Badal.” App. at 70. The absence of such systematic

persecution together with Singh’s inability to identify anything about his activities or

beliefs that would make him of special interest to the authorities caused the IJ and the

BIA to be unpersuaded by his testimony. They failed to understand why a “mere party

member” would be persecuted and pursued to the extent that Singh testified he was. As

the IJ explained in her oral opinion:

       If the respondent was of interest to the authorities why did they release him
       on three separate occasions and why did they continue to inquire about the
       respondent after he presumably left his home and the home of family
       members. No explanation was offered as to this continued interest in the
       respondent on the part of the police. The respondent was a mere member of
       the Akali Dal Mann. The Akali Dal Mann is a party with [a] large amount
       of followers. What was specific about the respondent was [sic] that he was
       of interest to the authorities? The background materials provide no
       evidence that there’s a pattern of practice whereby mere members of Akali
       Dal are systematically taken into custody and mistreated by the authorities.
       As there is not evidence of a pattern or practice it is the respondent’s burden
       to establish the reason why the police continued to maintain an interest in
       him even after he left his area. The respondent has been a member of Akali
       Dal Mann as early as 1998. Therefore why in the year 2003 the police
       sought [sic] to take him into custody just for being a member of Akali Dal
       Mann? Respondent left India with his passport. Respondent did not have

                                              6
       any problems at the airport. He stated that he was not of interest to the
       authorities because he was not classified as a terrorist, that they never
       accused him of being a terrorist. . . . If the government was not interested in
       him because they did not believe he was a terrorist what other interest did
       the government have in him? That question is not answered and the
       respondent did not provide any persuasive testimony that he is a person of
       interest to the police in India or in the Punjab area.

App. at 75-76.

       This basic problem with Singh’s account was exacerbated by several

inconsistencies in the evidence he tendered. First, Singh testified that, after his first

arrest, he was a patient in the hospital for three days. This, however, was inconsistent

with his hospital certificate which indicated he was treated on an out-patient basis.

       Second, inconsistencies were found in the evidence regarding the injuries Singh

sustained during his alleged arrests:

       [Singh] testified that he was severely beaten on all three occasions.
       However he stated that he suffered no serious injury on cross examination
       as a result of the first arrest. This would not be mesh [sic] with his
       testimony that he was injured to the point that he was admitted at the
       hospital for three days. The respondent testified that [after] the second
       arrest his entire body was in pain. He did not elaborate any further and as to
       the third arrest after all of this mistreatment the respondent only had a
       scratch on his elbow. Such testimony clearly undermines prior testimony
       that he was seriously mistreated by the police when he was allegedly held in
       custody on three separate occasions.

App. at 74-75.

       Both the IJ and the BIA were troubled not only with the inconsistency between the

content of the hospital certificate and Singh’s testimony, but also with the misspelling of

the name of the hospital and the question that raised about its authenticity.

                                               7
       Finally, while the BIA did not expressly comment on it, the IJ was concerned by

the fact that Mr. Mann, the head of Singh’s party, while expressing a general opinion that

Singh might be persecuted if he returned, made no mention of Singh’s three arrests. In

the IJ’s view, “if indeed Mr. Mann was aware that [Singh] was arrested, as claimed by

[Singh], it is not likely that he would fail to . . . provide the specific information in [his]

letter.” App. at 73.

                                               III.

       We have reviewed the background materials submitted by each side and find the

conclusion drawn by the IJ and the BIA to be a reasonable one. A reasonable fact finder

could well conclude from those materials that it would be unlikely that a “mere member”

of the Akali Dal (Mann) would receive the degree of attention that Singh claims to have

received from the authorities. Likewise, a reasonable fact finder could well conclude

from the evidence that Singh gave an inadequate explanation for that alleged attention.

Moreover, the inconsistencies that troubled the IJ and the BIA were about material

matters and concerned matters of sufficient importance that they could not easily be

attributed to oversight or loss of memory.

       It follows that we may not overturn the conclusion that Singh’s account of his past

persecution is unpersuasive. The petition for review will be denied.




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