Filed: May 28, 2019
Latest Update: Mar. 03, 2020
Summary: 17-2545 Singh v. Barr BIA Hom, IJ A206 080 227 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
Summary: 17-2545 Singh v. Barr BIA Hom, IJ A206 080 227 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ..
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17-2545
Singh v. Barr
BIA
Hom, IJ
A206 080 227
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 28th day of May, two thousand nineteen.
PRESENT:
JON O. NEWMAN,
JOSÉ A. CABRANES,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
AMANDEEP SINGH,
Petitioner,
v. 17-2545
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Jaspreet Singh, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Bernard A.
Joseph, Senior Litigation Counsel;
Jason Wisecup, Trial Attorney,
Office of Immigration Litigation,
United States Department of
Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is GRANTED.
Petitioner Amandeep Singh, a native and citizen of India,
seeks review of a July 19, 2017, decision of the BIA affirming
a September 26, 2016, decision of an Immigration Judge (“IJ”)
denying Singh’s application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Amandeep Singh, No. A 206 080 227 (B.I.A. July
19, 2017), aff’g No. A 206 080 227 (Immig. Ct. N.Y. City Sep.
26, 2016). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA. See Xue Hong Yang
v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
Because the BIA assumed credibility, we make the same
assumption. See Yan Chen v. Gonzales,
417 F.3d 268, 271-72
(2d Cir. 2005). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
Holder,
562 F.3d 510, 513 (2d Cir. 2009). Singh alleged past
persecution and a fear of future persecution based on his
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membership in the Akali Dal Mann political party (“Mann
Party”).
Past Persecution
A valid past persecution claim can be based on harm other
than threats to life or freedom, including “non-life-
threatening violence and physical abuse,” Beskovic v.
Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006), but the harm
must be sufficiently severe, rising above “mere harassment,”
Ivanishvili v. U.S. Dep’t of Justice,
433 F.3d 332, 341 (2d
Cir. 2006). In evaluating past persecution, the agency must
consider the harm suffered in the aggregate. Poradisova v.
Gonzales,
420 F.3d 70, 79-80 (2d Cir. 2005).
The BIA erred in its analysis of whether Singh’s past
harm rose to the level of persecution. The BIA determined
that because Singh was attacked only twice by Congress Party
members and did not need serious medical attention, the harm
did not rise to the level of persecution. However, there is
no requirement that an applicant require serious medical
treatment for past physical abuse to constitute persecution.
See Edimo-Doualla v. Gonzales, 464 F.3d 276, 283 (2d Cir.
2007). Moreover, “non-life-threatening violence and
physical abuse,” can constitute persecution. Beskovic,
467
3
F.3d at 226 n.3; see also
Ivanishvili, 433 F.3d at 342
(Evidence that an alien has suffered “physical abuse and
violence . . . may preclude a finding that the conduct is
mere harassment that does not as a matter of law rise to the
level of persecution, for violent conduct generally goes
beyond the mere annoyance and distress that characterize
harassment.” (internal citation omitted)).
Additionally, the BIA should have analyzed the context
of the beatings. “‘[T]he difference between harassment and
persecution is necessarily one of degree,’ . . . the degree
must be assessed with regard to the context in which the
mistreatment occurs.” Beskovic, 467 F.3d at 226 (quoting
Ivanishvili, 433 F.3d at 341). The BIA discussed the medical
treatment that Singh required as a result of the beatings but
did not discuss the context of the beatings, e.g., that during
the second beating, he was attacked by six individuals who
threatened to kill him if he did not join the Congress Party.
Additionally, it is unclear whether the BIA was making this
finding in the first instance or mistakenly believed that the
IJ had also found that Singh’s harm did not rise to the level
of persecution; the IJ did not make such a finding and instead
based his past persecution analysis on the credibility
4
determination that the BIA declined to reach. See
Poradisova, 420 F.3d at 77 (“[W]e require a certain minimum
level of analysis from the IJ and BIA opinions denying asylum,
and indeed must require such if judicial review is to be
meaningful.”). Accordingly, we remand to the agency so that
it may further explain or reconsider whether Singh suffered
past persecution. See
Beskovic 467 F.3d at 227.
Well-Founded Fear of Future Persecution
Absent past persecution, an alien may establish
eligibility for asylum by demonstrating a well-founded fear
of future persecution, 8 C.F.R. § 1208.13(b)(2), which must
be both credible and objectively reasonable, Ramsameachire v.
Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). To demonstrate
a well-founded fear, an applicant must show either a
reasonable possibility that he would be singled out for
persecution or that the country of removal has a pattern or
practice of persecuting individuals similarly situated to
him. 8 C.F.R. § 1208.13(b)(2)(iii).
Even assuming that Singh’s past harm did not rise to the
level of persecution, the agency erred in its analysis of
future harm. Although both the IJ and BIA stated that they
were assuming credibility, they did not evaluate or credit
5
the instances of past harm in determining whether Singh had
an objectively reasonable fear of future persecution.
Although the IJ stated that he was assuming credibility, he
did not discuss Singh’s past beatings and death threats, but
instead stated that Singh’s unsubstantiated testimony was
entitled to little weight. The BIA also did not discuss
Singh’s testimony in analyzing whether he had a well-founded
fear of future persecution and only discussed a State
Department report. We have cautioned against placing
“excessive reliance” on State Department reports and
instructed “where a report suggests that, in general, an
individual in the applicant’s circumstances would not suffer
or reasonably fear persecution in a particular country, the
immigration court may consider that evidence, but it is
obligated to consider also any contrary or countervailing
evidence with which it is presented, as well as the particular
circumstances of the applicant’s case demonstrated by
testimony and other evidence.” Tian-Yong Chen v. U.S. INS,
359 F.3d 121, 130 (2d Cir. 2004). The agency determined that
the State Department Report did not show that regular members
of the Mann Party were persecuted by the Congress Party. But
because the agency stated that it was assuming that Singh was
6
credible, it was required to consider Singh’s testimony,
which showed, contrary to the report, that regular members of
his political party were targeted by the Congress Party. Id.
For the foregoing reasons, the petition for review is
GRANTED, the BIA’s decision is VACATED, and the case is
REMANDED for further proceedings consistent with the order.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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