Swaraj Singh v. Eric Holder, Jr.

dissenting.

I respectfully dissent. In order to obtain asylum, a petitioner must show that he was or will be persecuted based on a protected ground. 8 U.S.C. § 1158 (b)(l)(B)(i). In my view, the BIA’s determination that Petitioner Singh had not made the required showing was based on substantial evidence.

Here, the BIA held that Singh failed to show any persecution on account of an imputed political opinion. It is true that a petitioner may show he has been persecuted on account of an imputed political opinion when he is accused by the police of terrorism based solely on his relationship with a known terrorist. See Singh v. Holder, 764 F.3d 1153, 1159-60 (9th Cir.2014). However, the BIA’s finding in this case that Singh failed to show past persecution on account of an imputed political opinion was based on substantial evidence because the few instances of police questioning that he endured did not rise to the level of persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.2003) (unfulfilled threats constituted harassment, not persecution); cf. Khup v. Ashcroft, 376 F.3d 898, 904 (9th Cir.2004), (finding persecution when the police threatened the petitioner after…

FILED

NOT FOR PUBLICATION OCT 21 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SWARAJ SINGH, No. 12-72309

Petitioner, Agency No. A089-318-735

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 October 9, 2014 Seattle, Washington

Before: PAEZ, BYBEE, and CALLAHAN, Circuit Judges.

Swaraj Singh petitions this court for review of the Board of Immigration

Appeals’s (“BIA”) denial of his claims for asylum, withholding of removal, and

protection under the Convention Against Torture. For the reasons stated herein, we

grant the petition.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. The BIA commits reversible error when it “fail[s] to mention highly

probative or potentially dispositive evidence.” Cole v. Holder, 659 F.3d 762, 772

(9th Cir. 2011). The BIA denied Singh’s asylum application based, in part, on its

conclusion that Singh…

MEMORANDUM *

Swaraj Singh petitions this court for review of the Board of Immigration Appeals’s (“BIA”) denial of his claims for asylum, withholding of removal, and protection under the Convention Against Torture. For the reasons stated herein, we grant the petition.

The BIA commits reversible error when it “fail[s] to mention highly probative or potentially dispositive evidence.” Cole v. Holder, 659 F.3d 762, 772 (9th Cir.2011). The BIA denied Singh’s asylum application based, in part, on its conclusion that Singh had not established past persecution. However, in drawing that conclusion, the BIA considered only Singh’s “questioning by the Indian police and being punched in the face.” It made no mention of Singh’s allegations that Khalistan Liberation Force (“KLF”) members threatened to kill him and held a gun to his head, or of the murder of Singh’s brother, Gobinder. These facts formed an important basis of Singh’s asylum claim, and the BIA erred in failing to consider them for two reasons.

First, “we have consistently held that death threats alone can constitute persecution,” Navas v. I.N.S., 217 F.3d 646, 658 *531 (9th Cir.2000) (collecting cases), and where death threats…