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Singh v. Ilchert

filed: August 22, 1995.

HARPINDER SINGH, PETITIONER-APPELLANT-CROSS-APPELLEE,
v.
DAVID ILCHERT, DISTRICT DIRECTOR, INS, RESPONDENT-APPELLEE-CROSS-APPELLANT.



Appeals from the United States District Court for the Northern District of California. D.C. No. CV-93-01680-MHP. Marilyn H. Patel, District Judge, Presiding.

Before: Alfred T. Goodwin and Mary M. Schroeder, Circuit Judges, and A. Wallace Tashima*fn* , District Judge. Opinion by Judge Schroeder.

Author: Schroeder

SCHROEDER, Circuit Judge:

Petitioner-appellee Harpinder Singh is a Sikh who attempted to enter this country illegally from India. He filed a habeas corpus petition in district court after the Board of Immigration Appeals ("BIA") deemed him excludable and denied his applications for asylum pursuant to 8 U.S.C. §§ 1101(a) & 1158(a) and withholding of deportation pursuant to 8 U.S.C. § 1253(h). The district court held that Singh had established that he had suffered past persecution on account of political opinion within the meaning of the applicable statutes and Ninth Circuit case law and remanded to the BIA for further proceedings.

Two principal questions are presented in the government's appeal. The first is whether the district court erred when it rejected the BIA's position that a person who suffered torture at the hands of police, as a result of his suspected association with separatist Sikh militants, had not suffered persecution on account of political opinion within the meaning of 8 U.S.C. § 1101(a)(42)(A). The second is whether the BIA violated applicable law when it required the applicant to establish a fear of country-wide persecution. The second issue has recently been decided adversely to the government in Singh v. Moschorak, 53 F.3d 1031, 1034 (9th Cir. 1995). We have jurisdiction under 28 U.S.C. § 2253 and affirm the district court's holding that under the correct legal standards, Singh showed a well-founded fear of persecution on account of political opinion and thus is eligible for asylum consideration by the BIA. We further hold that Singh has established a "clear probability" of future persecution and has thus met the stricter standard for mandatory withholding of deportation.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts of Singh's case are drawn from the district court's statement of facts in its order granting Singh's petition for habeas corpus, which in turn is based on Singh's testimony before the Immigration Judge ("IJ"). The IJ expressly found the material elements of that testimony credible.

Petitioner Harpinder Singh is a 24-year-old native and citizen of India, who fled that country and attempted to enter the United States at Los Angeles International Airport without proper documentation in September, 1991. Singh was born in Malpur, in the District of Hashpur, in the State of Punjab. Before leaving India, he lived in the State of Punjab and worked with his family farming their land. Singh is a member of the Sikh religion. Although he is not a member of any political party, he supports the movement for formation of an independent Sikh state, Khalistan, through peaceful means.

On April 23, 1991, seven armed members of a militant Sikh separatist organization, the Bhindrawal Tiger Force, visited Singh's home in the middle of the night and demanded food and shelter. The militants spent the night at Singh's home and asked Singh to join their organization. Although he disapproved of the militants' violent methods and had no intention of joining in them, Singh responded that he would "think it over." After this encounter, the militants visited Singh's home on six other occasions. Each time they stayed for a short while, ate, and pressured Singh to join their group.

In the early morning hours of May 10, 1991, the police raided Singh's home while his family slept. The police searched the home and arrested Singh without a warrant. They beat him with their fists and wooden rods and then transported him to the village police station.

The police detained Singh without charge for ten days. The first five days he was beaten periodically with a baton and a wide leather belt while suspended upside down with his legs stretched far apart. During the course of this abuse Singh lost consciousness several times. He testified that as a result of the beatings he has suffered lasting damage to his legs and has difficulty standing up because of the pain.

During the beatings the police interrogated Singh about the Sikh militants. The police asked him for information regarding when the militants visited him, what they did, and where they went upon their departure. Singh testified that because of his fear of retribution from the militants he refused to give any information to the police. Singh was released after ten days when his family paid a 20,000 rupee bribe to the police inspector. Singh returned home upon his release.

On July 13, 1991 four Sikh militants came to Singh's home while he was working in the fields. They demanded that he join them, and when he refused, they beat him. Immediately afterwards, the militants blindfolded Singh, kidnapped him, took him to an unknown location, and held him captive for ten days. During his captivity the militants beat him and insisted that he join their ranks. The militants also sent a ransom note to his family demanding money in exchange for Singh's release. He eventually was released after his family paid a 100,000 rupee ransom. However, when the militants released Singh they instructed him to relay information to them about the police or police informants. Because Singh feared that the militants would kill him if he refused, he agreed to do so.

On August 3, 1991 the Indian police again went to Singh's home early in the morning. The police arrested him and his father without a warrant and transported them to the village police station. Singh's father was beaten by the police and released the next day, but Singh was held for eight days. Neither Singh nor his father was ever formally charged or brought before a magistrate or a Judge.

Periodically during his detention, Singh was beaten with bamboo sticks by the police while suspended upside down. The police also interrogated him about his stay with the militants. Singh did not disclose any information to the police about the militants, however, because he feared that the militants would kill his family. Singh was released after paying a bribe to a police inspector. Again, Singh returned home.

Three days after his release Singh was visited by the militants who had kidnapped him. Singh testified that the militants had intended to induct him into their organization, but, upon discovering the extent of the injuries he suffered in police custody, they departed without him. Singh later fled his home and went to stay with an aunt who lived about fifty kilometers away from his village. He testified that he stayed there for only fifteen days because he felt unsafe and afraid.

After his stay with his aunt, Singh moved to New Delhi, where he stayed for about twenty-five days with a friend. During this period he continued to feel insecure and did not leave the house except to attend the Sikh temple, and even then felt afraid. He testified that he was afraid the police would locate him in New Delhi. Singh also testified that he felt he could not move to another region in India because he did not speak Hindi, the national language or other regional dialect, and would easily be identified as a Sikh.

Singh returned to his home in the Punjab for one month, because his father had made arrangements for Singh to flee the country. Singh departed from New Delhi and arrived at Los Angeles International Airport on September 29, 1991 without proper documentation. He was immediately arrested by the INS and charged with being excludable pursuant to the 8 U.S.C. § 1182(a)(6)(C)(i), Immigration and Nationality Act § 212(a)(6)(C)(i) (attempted entry with fraudulent documents), and 8 U.S.C. § 1182(a)(7)(i)(I), INA § 212(a)(7)(i)(I) (attempted entry without a valid document).

In a hearing before the IJ on February 14, 1992, Singh conceded excludability and requested asylum and withholding of deportation to India. The IJ denied Singh's application for both forms of relief. Finding "the heart of Singh's testimony" credible, the IJ took judicial notice of the fact that due to the conflict and violence between Sikhs attempting to create an independent state and the Indian security forces there have been a number of documented instances of human rights abuses. Nevertheless, the IJ found that Singh had failed to establish either "past persecution" or "a reasonable fear of future persecution at the hands of the Indian security forces" based on any of the five factors enumerated in the asylum statute. Specifically, the IJ held that neither the coercion by the militants to secure Singh's cooperation nor the mistreatment suffered at the hands of the police constituted past persecution on account of political belief. The IJ added in closing:

Because the decision to grant or deny asylum is discretionary in nature, the Court will state for the record, in the event of an appeal, that if the Court had found that the applicant met the statutory criteria for asylum the Court would have found that asylum was merited as a matter of discretion.

Singh appealed the IJ's decision to the BIA. In February of 1993, the BIA dismissed Singh's appeal in a short opinion in which it agreed with the IJ that Singh had not demonstrated past persecution or a well-founded fear of persecution on account of political belief. Specifically, the BIA found:

there is no persuasive evidence that the mistreatment suffered by the applicant at the hands of the Indian police was on account of his political opinion or the mere fact that he was a "Sikh". He did not show that the police action extended beyond an investigation of and reaction against those thought, rightly or wrongly, to be militants seeking the violent overthrow of the government.

The BIA did not disturb the IJ's favorable credibility finding. Additionally, the BIA held that even if Singh had established past persecution it would deny him asylum under its discretionary power "in view of the absence of a threat of ...


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