MEMORANDUM **
Bahbui Singh Sidhu,
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a citizen of India, petitions for review of the order by the Board of Immigration Appeals (BIA) dismissing his appeal from a decision by an Immigration Judge (IJ) denying his claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Because the parties are familiar with the facts, we do not recount them here, except as necessary to provide context to our ruling. We review the BIAs legal conclusions de novo and its factual findings for substantial evidence. Singh v. Whitaker, 914 F.3d 654, 658 (9th Cir. 2019) (citing Ali v. Holder, 637 F.3d 1025, 1028–29 (9th Cir. 2011)). Where the BIA issues its own decision affirming the IJs decision, we review the BIAs decision alone, except to the extent it incorporates portions of the IJs decision. Doe v. Holder, 736 F.3d 871, 877 (9th Cir. 2013). We have jurisdiction pursuant to 8 U.S.C. § 1252.
We grant the petition for review and remand Sidhus asylum, withholding of removal, and CAT claims to the BIA. Our analysis is informed by Singh v. Whitaker, which held that the BIAs analysis of a petitioners ability to safely and reasonably relocate was inadequate because it was not “sufficiently individualized.” 914 F.3d at 659. In Singh, the BIA afforded the petitioner the presumption of a well-founded fear of persecution, but the BIA failed to apply the presumption nationwide before conducting a relocation analysis. Id. at 661 (“[W]here the applicant has established a well-founded fear of future persecution at the hands of the government, a rebuttable presumption arises that the threat exists nationwide.” (quoting Melkonian v. Ashcroft, 320 F.3d 1061, 1070 (9th Cir. 2003)). We found that the BIAs analysis neglected to “specifically address [the petitioners] stated intent to continue proselytizing for his party wherever he went.” Id.
Here, the government produced no evidence on the relocation issue despite the fact that it bore the burden of proof. Nevertheless, the BIA concluded that the IJ permissibly relied upon the evidence Sidhu provided, including his testimony. According to the BIA, the IJ “implicit[ly]” found that Chandigarh is the area in India where Sidhu could safely and reasonably relocate, and the BIA adopted the IJs finding regarding Sidhus ability to reside in Chandigarh for 26 months without harm.
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Notably, the persecution Sidhu experienced before and after his time in Chandigarh occurred at the hands of the government and related to his work on behalf of the Mann Party. During the time Sidhu lived in Chandigarh, however, he was a student and did not work for the Mann Party. We conclude that the BIA failed to apply the presumption of a well-founded fear of persecution nationwide and that the BIA failed to address the safety and reasonableness of relocation if Sidhu continued his work for the Mann Party. For these reasons, we grant Sidhus petition to review his claims for asylum, withholding of removal, and CAT protection.
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PETITION FOR REVIEW GRANTED; REMANDED.
I respectfully dissent. The Boards determination that a petitioner can safely and reasonably relocate within their country is reviewed for substantial evidence. Kaiser v. Ashcroft, 390 F.3d 653, 659 (9th Cir. 2004). I would deny the petition for review.
At Sidhus merits hearing, he testified that in 2009, members of Indias Congress Party beat Sidhu and fellow Mann Party supporters for running a water station outside of a temple in Sidhus village of Sekha. Sidhu stated that when he and his fellow Mann Party supporters reported the incident to the local police station, the police officers beat them with batons and accused them of working for the “opposition party.” Sidhu testified that in November 2009, his cousin was hanged outside of the village and that Sidhu believed Congress Party members or the police were responsible. He stated that because the police did not take action with respect to his cousins death, Sidhus family sent him to live in Chandigarh, approximately 150 kilometers from his village. Sidhu testified that while living in Chandigarh, he took some trade courses and lived with a cousin. When asked if he continued to work for the Mann Party in Chandigarh, Sidhu responded that he attended “a few rallies, one or two rallies,” and then elaborated, “No, I did not[.] I only would go for the rallies. Because there was nothing towards the election and there was ․ no need.” Sidhu lived in Chandigarh for 26 months before returning to Sekha in January 2012.
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With respect to Sidhus asylum application, the IJ determined that Sidhu established past persecution. However, the IJ found that, “based on the evidence of record, and the [governments] argument,” the government overcame the presumption of future persecution if Sidhu were to return to India. The IJ determined that Sidhu could safely and reasonably relocate within India. Specifically, the IJ found that “based on [Sidhus] three years in Chandigarh, ․ the respondent can safely relocate away from his village.” Taking into account Sidhus prior work for the Mann Party, the IJ found that Sidhu “lived safely in Chandigarh and was able to participate in his partys activities.” The IJ stated “that [Sidhus] own actions support the fact that he can safely relocate to some other part of India.”
The Board affirmed the IJs decision and addressed Sidhus argument that the government “produced no evidence on this issue [of relocation] despite the fact that it bore the burden of proof.” The Board recognized that at the merits hearing, the government “did not submit any documentary evidence related to relocation.” However, the Board concluded that the IJ “permissibly relied upon the testimonial evidence of the respondent and other evidence produced by the respondent, such as information included in his asylum application and statement, to support his findings that the respondent could safely and reasonably relocate within India.” [Id.] The Board acknowledged that Sidhus political activity in Chandigarh differed in degree from that in Sekha but reasoned that Sidhu does not need to “be able to participate in exactly the same political activities that led to his past persecution, and [Sidhu] provides no authority which would support that notion.”
“[W]here the applicant has established a well-founded fear of future persecution at the hands of the government, a rebuttable presumption arises that the threat exists nationwide and therefore that internal relocation is unreasonable.” Melkonian v. Ashcroft, 320 F.3d 1061, 1070 (9th Cir. 2003). The Board can rely on a petitioners testimony and evidence in the record to overcome the presumption and find that the petitioner can safely and reasonably relocate within their country. See Ochave v. I.N.S., 254 F.3d 859, 867 (9th Cir. 2001) (holding that where “the unrebutted evidence [was] that [petitioner] and her family not only could, but did, relocate successfully within” their country, the IJ permissibly relied on the petitioners successful relocation as a ground for denying asylum); see also Amilcar-Funez v. Lynch, 623 F. Appx 395, 396 (9th Cir. 2015) (“Substantial evidence supports the BIAs determination that petitioners could internally relocate, where the evidence showed that petitioners had already successfully relocated to avoid harm in Honduras for at least one year before leaving the country.”).
I disagree with the majority that the Board failed to apply the presumption of a well-founded fear of persecution nationwide. Here, the Board acknowledged that the government did not submit evidence related to relocation but concluded that the IJ permissibly relied upon the evidence Sidhu provided, including his testimony. Sidhus testimony that he lived in Chandigarh for 26 months and continued to attend rallies in support of the Mann Party without incident provides substantial evidence that he could safely and reasonably relocate within India, specifically to Chandigarh. The Board and IJ appropriately relied on Sidhus testimony to reach the relocation finding. See Ochave, 254 F.3d at 867. Moreover, disturbing the Boards decision because the government did not produce additional evidence to supplement Sidhus testimony is inconsistent with the substantial evidence standard of review our court is required to apply.
I also disagree with the majority that Board failed to address the safety and reasonableness of relocation to Chandigarh if Sidhu continued his work for the Mann Party. There are two issues with the majoritys holding. First, in my view, the IJ conducted a sufficiently individualized analysis of Sidhus ability to relocate. The majority states that when Sidhu lived in Chandigarh, “he was a student and did not work for the Mann Party.” However, Sidhu testified that he continued to attend Mann Party rallies while living in Chandigarh. The IJ relied on this testimony to find that Sidhu “lived safely in Chandigarh and was able to participate in his partys activities,” and the Board cited Sidhus political activity in Chandigarh in its reasoning to affirm the IJs decision. Sidhus testimony indicates that his prior work for the Mann Party in Sekha consisted of gathering additional supporters to attend rallies and running events such as the water station. Accordingly, I do not think that the distinction of whether Sidhu worked for the Mann Party is a meaningful one that should undermine the IJs relocation analysis. The Board was correct in reasoning that Sidhu need not be able to participate in exactly the same political activities that led to his past persecution, and the majority cites no authority to support such a requirement.
Second, even if this were an important distinction, Sidhus decision not to work for the Mann Party in Chandigarh was voluntary and not the result of any fear of persecution. When asked why he did not work for the Mann Party while living in Chandigarh, Sidhu testified that there was no election coming up and therefore no need. He did not cite any fear of persecution by Congress Party members or the police. The majoritys faulting the Board and IJ for relying on Sidhus experience in Chandigarh because he voluntarily chose to somewhat scale back his political activity based on the election cycle significantly undermines the IJs ability to conduct an individualized relocation analysis and does not reflect the deference that our court owes the Board and IJ.
For these reasons, I would deny the petition for review and respectfully dissent.
FOOTNOTES
1
. Sidhu asserted in earlier proceedings that the government misspelled his first name as “Bahbui” on the Notice to Appear. Sidhu informed Immigration Judge Silvia Arellano at his first master calendar appearance that his first name is actually “Bahadur.” At his subsequent appearance before Immigration Judge Charles Greene III, Sidhu referred to his first name as “Bahbui.” Sidhus identification documents reflect that his first name is “Bahadur.”
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. The IJ actually incorrectly calculated the amount of time Sidhu lived in Chandigarh to be three years rather than 26 months, and the BIA determined that this was harmless error.
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. In Singh, we upheld the BIAs denial of CAT relief because the BIA relied only “in part” on the relocation determination. 914 F.3d at 663. Here, however, we remand Sidhus CAT claim because the IJs denial of CAT protection, which the BIA adopted, was premised entirely on its relocation analysis.
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. Sidhu testified that and the IJ found that Sidhu lived in Chandigarh for three years. The Board determined that Sidhu lived in Chandigarh for 26 months and held that the IJs miscalculation was harmless error.
Dissent by Judge WALLACE