Tuesday, December 2, 2025
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VanDyke Blasts Lack of Consistency in Asylum Jurisprudence
Judge Pens Concurring Opinion Calling for ‘Course Correction’ in Ninth Circuit’s Handling of Immigration Decisions Concerning Past-Persecution Claims
By a MetNews Staff Writer
Ninth U.S. Circuit Judge Lawrence VanDyke penned a concurring opinion to an immigration decision, released yesterday, calling the court’s jurisprudence in asylum cases a “mess” in need of U.S. Supreme Court intervention.
The majority opinion denies a petition for review filed by an Indian national seeking to avoid deportation due to purported persecution in his home country relating to his membership in the Sikh separatist group Shiromani Akali Dal, known as the “Mann party.”
At issue is whether the petitioner was eligible for asylum because he had established sufficient “past persecution” on account of his religion or membership in a particular group to trigger a presumption of future harm. Case law has established that a party who is able to avoid hostility by relocating to another region of his or her country of origin is not entitled to relief.
Circuit Judge Ryan D. Nelson authored yesterday’s opinion for the court, joined in by VanDyke as well as Senior Circuit Judge Sandra S. Ikuta, saying:
“Substantial evidence supports the BIA’s finding that Singh is ineligible for asylum or withholding of removal because his alleged injuries do not rise to the level of past persecution and because he could reasonably relocate within India to avoid future persecution.”
‘Course Correction’
VanDyke’s cry for a “course correction” came by way of a concurrence saying that the jurist agrees with the panel opinion that the Board of Immigration Appeals (“BIA”) properly determined that the petitioner, Baljit Singh, had failed to establish past persecution by citing two alleged physical assaults that followed his engagement with Mann party events in 2014 and 2015 as well as an warning to stop associating with the movement.
However, the jurist noted a “growing inconsistency with which our court has handled cases involving similar facts and issues,” pointing to two recent Ninth Circuit decisions finding sufficient persecution against Mann party members to warrant relief, including the 2024 opinion in Singh v. Garland (“A. Singh”) as well as the 2019 Singh v. Whitaker case (“N. Singh”).
VanDyke said that “[a]pplying the deferential substantial-evidence standard that the law requires us to apply, the panel opinion correctly denies Baljit Singh’s petition for review,” however, he argued:
“Our court’s derogation from the ‘basic principle of justice’ that ‘like cases should be decided alike’—not to mention the fundamentals of immigration law and the especially appropriate deference to executive-branch decisions in this particular area of the law mandated by Congress—warrants a course correction.”
Not Sufficient
The judge wrote:
“Start with the issue of past persecution. Right out of the gate, a panel can find binding precedent to support applying the substantial-evidence standard or a de novo standard of review to the agency’s conclusion about whether a petitioner’s harms rose to the level of past persecution….But merely clarifying that the substantial-evidence standard governs won’t solve the problem on its own.”
He continued:
“Even considering only the decisions that have purportedly ‘applied the substantial-evidence standard,’ any panel of our court that is eager to overturn the BIA’s lack-of-past-persecution finding can usually find more than enough recent precedent to justify its desired outcome….Compounding the inconsistency (and artificially tipping the scales in favor of not deferring to the agency) is that ‘decisions from our court that properly defer to the agency are usually resolved in unpublished dispositions with no precedential value,’….”
Relocation Question
Turning to the question of whether the petitioner can safely relocate, VanDyke remarked:
“Our court is no stranger to petitions for review of BIA decisions involving Mann party members from Punjab. You’d think that that would make our jurisprudence both coherent and consistent, but our caselaw is anything but. In support of its conclusion, our panel’s opinion properly points to multiple pieces of evidence that the BIA relied on in determining that Singh could safely and reasonably relocate, including the Law Library of Congress Report and past evidence of relocation. Our panel’s conclusion and analysis here thus comport with our precedents in A. Singh…and N. Singh…, both of which granted petitions for review based on the idea that similar reports from the Law Library of Congress were insufficient to show that internal relocation would have been reasonable.”
Asserting that “the A. Singh and N. Singh panels were more concerned with second-guessing the agency and picking nits than with applying the deferential substantial-evidence standard,” he pointed out that “[o]nce again,…most of the decisions that have reached the correct result have done so via unpublished decisions.”
He added:
“Our court has let these problems exacerbate for years, and we seem too preoccupied with other perceived crises to fix the resulting self-imposed chaos on our own. Our mess has rendered a great disservice to the immigration courts, which are constantly trying to keep up with our whims (but keep having their conclusions overturned because supposedly ‘no reasonable adjudicator’ could have reached them) and, more importantly, to the parties in these cases (for whom, let’s be honest, the outcome of a petition often hinges solely on which judges are drawn for the panel). It’s probably time for the Supreme Court to give us another little course correction, as it has to do with some regularity, and once again direct us to defer to the BIA not just in word but also in deed.”
The case is Singh v. Bondi, 24-815.
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