NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 11 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHINDA SINGH, No. 16-71345 16-73291 Petitioner, Agency No. A099-062-012 v.

MATTHEW G. WHITAKER, Acting MEMORANDUM* Attorney General,

Respondent.

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

Submitted December 20, 2018** San Francisco, California

Before: M. SMITH, NGUYEN, and BENNETT, Circuit Judges.

Petitioner Shinda Singh (“Singh”) seeks review of decisions of the Board of

Immigration Appeals (“BIA”) upholding the denial of his claims for asylum,

withholding of removal, and protection under the Convention Against Torture

(“CAT”), and denying his motion to reopen removal proceedings. We have

* 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). jurisdiction under 8 U.S.C. § 1252(a)(1) & (b)(6). We deny Singh’s petition for

review of the judgment of the BIA denying his claims for humanitarian asylum,

protection under CAT, and to reopen his removal proceedings. However, we grant

his petition for review and remand his withholding of removal and asylum claims

to the BIA for an individualized analysis of Singh’s ability to relocate in light of

Singh v. Whitaker, Nos. 16-70823/16-72285, 2019 WL 310400 (9th Cir. Jan. 24,

2019).

I. Asylum and Withholding of Removal

Singh asserted a claim for asylum and withholding of removal on the basis

of an imputed political opinion. Singh maintains that he will face persecution

anywhere in India because authorities believe (incorrectly) that he is a member of a

Khalistan separatist group advocating for an independent Sikh state. The BIA

assumed that Singh established past persecution but dismissed his asylum appeal

and his petition for withholding of removal on the ground that the immigration

judge (“IJ”) did not clearly err in finding that he could reasonably relocate within

India.

On January 24, 2019, we decided a substantially similar case. Singh, 2019

WL 310400. In Singh v. Whitaker, the petitioner, Narinder Pal Singh, was Sikh and

a member of the Mann Party, which “advocates for Sikh rights and an independent

Khalistan state.” Id. at *2. We found that the BIA did not conduct a sufficiently

2 individualized analysis of Singh’s ability to relocate within India for two reasons.

First, while the BIA examined whether Punjabi police from Narinder Pal

Singh’s original town were likely to follow him outside of Punjab, the BIA did not

examine whether he would face persecution outside of Punjab based on his

political opinion. Id. at *5. We noted that Punjabi police may “wrongly place

individuals involved in ordinary political activity on chronic offender lists.” Id. We

also noted the existence of a tenant registration system in India. Id. The BIA “erred

by failing to address the potential harm Congress Party members, or other local

authorities, might inflict upon Singh in a new state.” Id.

Second, we found that the BIA did not specifically address Narinder Pal

Singh’s intent to continue political advocacy for the Mann Party when it found he

could safely relocate in India outside Punjab. Id. “Thus, the BIA’s analysis

regarding whether Singh could reasonably relocate was inadequate.” Id. (citing

Knezevic v. Ashcroft, 367 F.3d 1206, 1214–15 (9th Cir. 2004)). We remanded the

asylum and withholding of removal claims for a reasoned analysis with respect to

the petitioner’s individualized situation. Id.

Here, Singh’s imputed political opinion is as a separatist. Here, also, the BIA

upheld the IJ’s findings that “Respondent is unlikely to be pursued by police

outside of Punjab.” While the BIA considered religious freedoms for Sikhs

throughout India, it did not specifically address the possibility of Singh’s future

3 persecution outside Punjab because of his imputed political opinion as a separatist.

See Popova v. INS, 273 F.3d 1251, 1259-60 (9th Cir. 2001) (holding “general”

information insufficient to rebut presumption of future persecution on a specific,

individualized ground).

For these reasons, we grant Singh’s petition to review his claims for asylum

and withholding of removal and remand this case to the BIA for consideration in

light of Singh v. Whitaker, 2019 WL 310400.1

II. Humanitarian Asylum

We reject Singh’s claim of humanitarian asylum under 8 C.F.R.

§ 1208.13(b)(1)(iii). Singh’s allegation of threats and incidents of physical abuse,

while sufficient to establish past persecution, does not fall within the “rare

situations of ‘atrocious’ persecution’” necessary for a petitioner to be eligible for

humanitarian asylum. Vongsakdy v. INS, 171 F.3d 1203, 1205 (9th Cir. 1999).

III. Convention Against Torture

Finally, we reject Singh’s claim for protection under CAT. Substantial

evidence supports the agency’s determination that Singh did not establish that he

would more likely than not be tortured if removed to India.

1 The IJ found that “the respondent did not testify in a credible manner.” The BIA stated that the IJ’s findings of fact were not “clearly erroneous.” However, it presumed Singh’s credibility. The BIA is not required to again presume Singh’s credibility on remand and is permitted to consider any facts that it finds are not clearly erroneous. 8 C.F.R. § 1003.1(d)(3)(i).

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IV. Motion to Reopen Proceedings

The BIA did not err by denying Singh’s motion to reopen. Singh’s motion

was based on his marriage to a United States citizen while his removal proceedings

were pending and his subsequent claim for adjustment of status. Singh failed to

present “clear and convincing evidence indicating a strong likelihood” that the

marriage was bona fide. Malhi v. INS, 336 F.3d 989, 993–94 (9th Cir. 2003)

(quoting In re Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002)). Contrary

to Singh’s argument, the BIA’s application of the fraudulent marriage presumption

recognized in Velarde and 8 C.F.R. § 204.2(a)(1)(iii) did not violate his right to

due process.

Each party shall bear its own costs on appeal.

PETITION GRANTED AND REMANDED IN PART; DENIED IN

PART.

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