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Thursday, May 22, 2014


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Ninth Circuit Approves Denial of Political Asylum to Sikh Activist

Panel Says Conditions Have Changed in India Since Man Was Persecuted in 1990s




A Sikh activist who presented credible evidence of being targeted and harassed by Indian authorities in the 1990s was ordered removed to his native country by the Ninth U.S. Circuit Court of Appeals yesterday.

In a 2-1 decision, the court said that Jagtar Singh established past persecution, but that the Board of Immigration Appeals relied on substantial evidence in holding that changed conditions in India mean Singh will not be persecuted if forced to return.

Singh did not dispute having entered the United States without inspection in 1999, but sought asylum or withholding of removal. At a 2003 immigration hearing, he testified that he was a native of Punjab and a member of the Akali Dal party, which advocates an independent Sikh state of Khalistan.

As an activist on behalf of the party, he said, he provided trucks for rallies and adorned them with pro-Khalistan posters. Police responded, he said, by beating and detaining him for four days in 1994, 10 days in 1995, and five days in 1997, releasing him each time in exchange for bribes. They also harassed his wife, father, uncle and cousin.

The immigration judge found him ineligible for asylum, finding his petition untimely and his testimony not credible and uncorroborated, and ruling that even if the testimony was true, he did not establish that he was persecuted for his politics, as opposed to being arrested for violating general laws.

Case Sent Back

The BIA affirmed, but the Ninth Circuit, in a 2007 memorandum disposition, ordered the BIA to consider the issue of credibility, which it did not expressly rule on in its original decision, and held that the finding Singh was not persecuted was, as to the last two arrests, unsupported by substantial evidence.

The BIA sent the case back to the IJ, who found Singh’s testimony that police were still harassing his family and searching for him to lack credibility, and further ruled that State Department reports and other documents had successfully rebutted the inference that he faced renewed persecution in his native land.

The BIA did not adopt the IJ’s findings on credibility, but agreed that “conditions in India have greatly improved” and that pro-Khalistan activists, and Sikhs in general, were no longer likely to be targets of persecution.

Judge Jay Bybee, writing yesterday for the Ninth Circuit, said the BIA’s ruling was entitled to deference.

He cited a 2008 State Department report, noting that members of Singh’s faith “have ascended to the highest level of the Indian government.” While the report acknowledged that police abuse continues to occur throughout India, it said that Sikhs were not being singled out and that the national government did not give “overt or tacit consent” to abusive conduct by police.

Human Rights Report

Emphasizing that an applicant for asylum or withholding of removal must show not only that he faces a threat to his life or freedom, but also that the threat is based on “race, religion, nationality, membership in a particular social group, or political opinion,” Bybee also cited an earlier report on human rights in India. The 2007 report recounted threats to a number of groups, but made no mention of any persecution of Sikhs.

The judge also noted that the prime minister, in 2005, apologized to the Sikhs for atrocities committed in the 1980s and 1990s, and that dozens of police officials were reported to have been criminally charged in connection with the violence.

While hundreds of other officers may have gone unpunished, Bybee said, the deferential standard of review allows the BIA “to rely on country reports that contain mixed messages, ambiguities, or inconsistencies.”

  Bybee also cited more specific documents, showing that members of Singh’s political party and other pro-Khalistan activists have not been targeted for police harassment in more than 10 years.

  Senior Judge J. Clifford Wallace concurred in the opinion, but visiting Senior District Judge Robert W. Gettleman of the Northern District of Illinois dissented.

  Gettleman argued that the country reports were inadequate to rebut the presumption that Singh would be persecuted upon his return. The rulings of the IJ and BIA, he wrote, “do not address petitioner’s precise claim and…erroneously require petitioner to meet an improper and near-impossible burden of proof, instead of placing the burden on the government, as required by law.”

  The case is Singh v. Holder, 10-71999.


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