Ajit Singh v. Eric Holder, Jr.

FILED

NOT FOR PUBLICATION MAR 16 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

AJIT SINGH, No. 09-73276

Petitioner, Agency No. A072-174-109

v.

MEMORANDUM *

ERIC H. HOLDER, Jr., United States Attorney General,

Respondent.

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

Argued and Submitted November 4, 2010 Seattle, Washington

Before: B. FLETCHER and BYBEE, Circuit Judges, and WILKEN, District Judge.**

Petitioner Ajit Singh appeals the decision of the Board of Immigration

Appeals (BIA) affirming an Immigration Judge's (IJ) denial of his claims for

asylum, withholding of removal and relief under the Convention Against Torture

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Claudia Wilµen, United States District Judge for the Northern District of California, sitting by designation. (CAT). We have jurisdiction under 8 U.S.C. y 1252. We grant in part the petition

for review, deny it in part…

MEMORANDUM **

*759 Petitioner Ajit Singh appeals the decision of the Board of Immigration Appeals (BIA) affirming an Immigration Judge’s (IJ) denial of his claims for asylum, withholding of removal and relief under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252 . We grant in part the petition for review, deny it in part and remand for further proceedings.

The BIA’s determination that an alien is not eligible for asylum must be upheld if supported by reasonable, substantial and probative evidence in the record; reversal should occur only where the evidence is such that a reasonable fact finder would have to conclude that the requisite fear of persecution existed. INS v. Elias-Zacari-as, 502 U.S. 478, 481 , 112 S.Ct. 812 , 117 L.Ed.2d 38 (1992); Yazitchian v. INS, 207 F.3d 1164, 1168 (9th Cir.2000). Administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. 8 U.S.C. § 1252 (b)(4)(B). Credibility determinations are also reviewed for substantial evidence and, thus, must be upheld unless the evidence presented would compel a reasonable fact finder to reach a contrary result, de…

dissenting:

I dissent. We are required to defer to the factfinding conducted by the Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA”) unless “no reasonable factfinder could have reached the agency’s result.” Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007) (quoting Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir.2005)). Ignoring this deferential standard of review, the panel majority overturns the IJ’s adverse credibility determination based purely on speculative arguments that Petitioner never advanced before the BIA, in his briefs, or at oral argument.

Petitioner Ajit Singh (“Singh”) seeks asylum on the basis that he was persecuted in India because of his activities on behalf of the Akali Dal (Mann) Party (“ADM”), a secessionist movement which supports the creation of an independent state for Sikhs called “Khalistan.” Singh had testified that he had become involved in the ADM through his brother, and that he spoke out at an ADM rally after his brother was allegedly arrested and detained for his pro-Khalistan views. He claims that since his brother’s arrest, he remains unaware of his brother’s whereabouts. On account of his involvement with the ADM and…