Shamsher Singh v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHAMSHER SINGH, No. 20-72806

Petitioner, Agency No.

A215-906-373

v.

MERRICK B. GARLAND, Attorney ORDER AND

General, AMENDED

OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted June 7, 2022

Seattle, Washington

Filed September 14, 2022

Amended January 12, 2023

Before: Ronald Lee Gilman, * Sandra S. Ikuta, and Eric D.

Miller, Circuit Judges.

*

The Honorable Ronald Lee Gilman, United States Circuit Judge for the

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

2 SINGH V. GARLAND

Order;

Opinion by Judge Gilman;

Concurrence by Judge Miller;

Dissent by Judge Ikuta

SUMMARY **

Immigration

The panel filed an order (1) amending the opinion filed

on September 14, 2022; (2) denying the Respondent’s

petition for panel rehearing, noting that the majority voted to

deny, and Judge Ikuta voted to grant, the petition for panel

rehearing; and (3) indicating that no further petitions for

rehearing or for rehearing en banc would be entertained. In

the amended opinion, the panel granted in part and denied in

part Shamsher Singh’s petition for review of a decision of

the Board of Immigration Appeals, and remanded, holding

that substantial evidence did not support the BIA’s

determination that the harm Singh suffered did not rise to the

level of past persecution, but substantial evidence did

support the BIA’s determination that the harm did not

amount to past torture and that Singh failed to show that he

would more likely than not face a clear probability of future

torture.

As an initial matter, the panel noted that the immigration

judge found Singh to be a credible witness. There were only

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

SINGH V. GARLAND 3

two concerns the IJ expressed regarding Singh’s credibility:

(1) a minor omission in his declaration; and (2) his testimony

contained speculation. The panel wrote that neither concern

was sufficient for an adverse credibility determination. The

panel noted that the IJ concluded that Singh’s testimony was

“otherwise consistent with his written statement and

plausible in light of evidence of country conditions.” The

panel further noted that the BIA did not question this

credibility determination, and there was no indication that

the BIA implicitly found the presumption of credibility

rebutted. The panel wrote that the only question for judges

reviewing the BIA’s factual determinations is whether any

reasonable adjudicator could have found as the agency

did. Here, the panel deferred to the agency’s credibility

determination, which was supported by substantial evidence.

Observing that this court has applied both de novo and

substantial evidence review to the question of whether a

petitioner’s past harm rose to the level of persecution, the

panel wrote that it need not address which standard applied

because the harm Singh suffered rose to the level of

persecution under the more deferential substantial evidence

standard. The panel concluded that five factors compelled

the conclusion that Singh experienced serious harm

amounting to persecution: (1) he was forced to flee his home

after being repeatedly assaulted; (2) one of those incidents

involved a death threat; (3) he was between the ages of 16

and 18 when the attacks occurred; (4) his brother also

experienced this violence; and (5) this court has already

recognized that Mann Party members have faced persistent

threats in the region of India where Singh was twice

attacked. The panel noted that the IJ and the BIA found no

reason to doubt the truth, or persuasiveness, of these five

core factors. Explaining that the past-persecution analysis is

4 SINGH V. GARLAND

informed by comparing the facts of a petitioner’s case with

those of similar cases, the panel considered the cases the BIA

cited in its decision and concluded that they were

distinguishable. The panel wrote that the combination of

death threats and physical violence that Singh experienced

was squarely in line with what this court has held is

sufficient to compel a finding of past persecution.

The panel clarified that the BIA had not resolved other

issues relevant to past persecution, including whether the

Indian government was unwilling or unable to control

Singh’s attackers, and whether the persecution was on

account of a statutorily protected ground. And because the

BIA concluded that Singh had not demonstrated past

persecution, the BIA had improperly placed the burden on

Singh to show that he could not reasonably relocate within

India to avoid future persecution. The panel explained that

if Singh is able, on remand, to demonstrate that the serious

harm he suffered was on account of a statutorily protected

ground at the hands of individuals whom the government

was unable or unwilling to control, then that showing would

give rise to a presumption of a well-founded fear of future

persecution and shift the evidentiary burden to the

government to rebut that presumption by showing that there

has been a fundamental change in circumstances concerning

Singh’s well-founded fear of future persecution or that Singh

could avoid future persecution by reasonably relocating to

another part of India. The panel cautioned that an applicant

cannot be said to have the ability to relocate within his home

country if he would have to remain in hiding there.

The panel held that substantial evidence supported the

BIA’s determinations that Singh did not suffer past treatment

amounting to torture, and that he failed to establish that it is

more likely than not that he will be tortured in India by or at

SINGH V. GARLAND 5

the instigation of or with the consent or acquiescence of a

public official or other person acting in an official capacity.

Concurring, Judge Miller wrote to express his view that

the en banc court should take up the issue, if the Supreme

Court does not do so sooner, of what standard of review

applies to the BIA’s determination that the harm an alien

suffered was not sufficiently severe to constitute

persecution. Judge Miller wrote that whatever the standard

of review, this court’s cases in this area permit no conclusion

other than that the harm that Singh suffered constituted

persecution.

Dissenting, Judge Ikuta wrote that a determination by the

BIA that an alien is not entitled to asylum must be upheld

unless a reasonable factfinder would be compelled to

conclude to the contrary. Judge Ikuta wrote that the majority

flipped this standard on its head. Instead of deferring to the

BIA’s determination as one of potentially many reasonable

possibilities, the majority claimed that the BIA’s decision

was contrary to court precedent. Judge Ikuta explained that

this court’s precedent encompasses wide-ranging views of

what constitutes persecution, and that a fair review of its

cases shows that the majority reached its conclusion only by

cherry-picking similar facts in cases where the court has

reversed the BIA, and distinguishing similar facts in cases

where it has upheld the BIA.

6 SINGH V. GARLAND

COUNSEL

Maleha N. Khan-Avila (argued), Riverside, California;

Erika Roman, Law Office of Erika Roman, Woodland Hills,

California; for Petitioner.

Sarah L. Martin (argued), Jaclyn G. Hagner, and Aaron D.

Nelson, Trial Attorneys; Walter M. Evans, Senior Litigation

Counsel; Sabatino F. Leo, Assistant Director; Brian

Boynton, Acting Assistant Attorney General; Office of

Immigration Litigation, Civil Division, United States

Department of Justice, Washington, D.C.; for Respondent.

ORDER

The opinion, filed on September 14, 2022, and reported

at 48 F.4th 1059 (9th Cir. 2022), is amended as follows:

At 48 F.4th at 1067, the last sentence and its citation in

the first paragraph of Part II.B.1. are deleted and replaced

with the following paragraph:

The IJ found Singh to be a credible

witness. There were only two concerns that

the IJ expressed regarding Singh’s

credibility: (1) a minor omission in his

declaration, and (2) his testimony contained

speculation. Neither concern was sufficient

for an adverse credibility determination, and

the IJ concluded that Singh’s testimony was

“otherwise consistent with his written

statement and plausible in light of evidence

of country conditions.” The BIA did not

SINGH V. GARLAND 7

question this credibility determination, and

there is no indication that “the BIA implicitly

found the presumption of credibility

rebutted.” Garland v. Dai, 141 S. Ct. 1669,

1679 (2021). “The only question for judges

reviewing the BIA’s factual determinations is

whether any reasonable adjudicator could

have found as the agency did.” Id. at

1678. Here, we defer to the agency’s

credibility determination, which was

supported by substantial evidence.

At 48 F.4th at 1068, at the end of the first paragraph of

Part II.B.1.i., the following sentence is added:

The IJ and the BIA found “no reason to doubt

the truth, or ‘persuasiveness,’” of these five

core factors. See Plancarte Sauceda v.

Garland, 23 F.4th 824, 827 (9th Cir.

2022) (citing Dai, 141 S. Ct. at 1680-81).

At 48 F.4th at 1072, at the end of the last paragraph of

Part II.B.2., the following sentence is added:

We caution that “an applicant cannot be said

to have the ability to ‘relocate’ within [his]

home country if [he] would have to remain in

hiding there.” Akosung v. Barr, 970 F.3d

1095, 1102 (9th Cir. 2020).

8 SINGH V. GARLAND

An Amended Opinion is being filed concurrently with

this Order. With the Opinion as amended, the panel majority

has voted to DENY Respondent’s petition for panel

rehearing, filed November 14, 2022. Judge Ikuta has voted

to grant the petition for rehearing. No subsequent petitions

for panel or en banc rehearing will be entertained.

OPINION

GILMAN, Circuit Judge:

Shamsher Singh, a native and citizen of India, petitions

for review of an order of the Board of Immigration Appeals

(BIA) dismissing his applications for asylum, withholding of

removal, and protection under the Convention Against

Torture (CAT). Singh asserts that he suffered past

persecution and has a well-founded fear of future

persecution due to his familial association with his brother,

who is a member of the Shiromani Akali Dal Party (Mann

Party), and his own affiliation with that Party. The Mann

Party advocates for the creation of a sovereign state for Sikh

people and is opposed by the Congress Party, one of India’s

major political parties.

The immigration judge (IJ) and the BIA concluded that

Singh did not qualify for asylum or withholding of removal

because the injuries and threats that Singh had suffered at the

hands of Congress Party members were not sufficiently

serious. After reaching this conclusion, neither the IJ nor the

BIA proceeded to analyze whether Singh had established the

other elements of an asylum claim based on past persecution.

SINGH V. GARLAND 9

Because the IJ and the BIA determined that Singh did

not establish past persecution, Singh bore the burden of

proving that he had a well-founded fear of future

persecution. The IJ and the BIA concluded that Singh had

not borne his burden of proof. They also concluded that

Singh did not qualify for CAT protection because he had not

established that it is more likely than not that he would be

tortured by or at the acquiescence of public officials if he

returned to India.

For the reasons set forth below, we GRANT Singh’s

petition in part, DENY Singh’s petition in part, and

REMAND to the BIA for further proceedings consistent

with this opinion.

I. BACKGROUND

Singh entered the United States without documentation

in October 2018. He applied for admission to the United

States later that same month, just a few days before he turned

18. The Department of Homeland Security commenced

removal proceedings against him, charging Singh with

inadmissibility because he lacked a valid visa or other entry

document when he applied for admission.

Singh attended removal proceedings before an IJ in

December 2018. Through counsel, Singh conceded the

charges against him, and the court found removability

established. Singh then filed the relevant application for

asylum, withholding of removal, and protection under CAT.

A. Singh’s testimony

In January 2019, Singh testified before the IJ about the

circumstances that he faced prior to coming to the United

States. Singh stated that members of the Congress Party had

verbally and physically attacked him on multiple occasions

10 SINGH V. GARLAND

in 2017 and 2018 because of his affiliation with the Mann

Party.

Singh’s brother, Harpreet, joined the Mann Party in

December 2016. Soon thereafter, Singh started assisting his

brother in providing services to the Mann Party. Harpreet

was attacked by members of the Congress Party in April and

August 2017, suffering serious internal injuries. He

subsequently fled to the United States in November 2017.

That same month, Singh was verbally confronted by four

members of the Congress Party. They demanded to know

where his older brother was. And they threatened the

brothers, warning them to stop providing services to the

Mann Party and join the Congress Party. These individuals

also told Singh to sell drugs on their behalf.

The threats soon escalated. The first physical attack

occurred in February 2018 when Singh was returning from

offering his prayers at a Sikh temple. Four men approached

Singh and told him, again, that he needed to quit the Mann

Party and join the Congress Party. The men then slapped

Singh on his face, hit his stomach, threw him to the ground,

and started kicking his stomach. Singh knew that they were

from the Congress Party because they said that Singh needed

to join “our party, the Congress Party” and because there was

a symbol of a palm on their motorcycles, which symbolizes

the Congress Party.

After the February 2018 attack, Singh’s grandmother

gave him herbal remedies at home. He then reported the

incident to the police near his hometown of Maqsudpur.

Singh’s father accompanied him to make the report. The

police told Singh and his father that something was wrong

with Singh for trying to file a false report against the

SINGH V. GARLAND 11

government that was currently in power and that Singh had

better leave the police station immediately.

A second physical attack occurred in July 2018 when

Singh was returning home from the family’s farm. Singh

was on his bicycle alone when a vehicle approached him and

stopped in front of his bicycle. Five men emerged from the

vehicle and told Singh that he would suffer the consequences

of failing to join their party and of attempting to file a report

with the police. The men beat Singh with hockey sticks all

over his back and arms. They told Singh that they were

going to kill him.

Some nearby farmers heard Singh’s screams and ran

toward the group. This caused the men to run back to their

vehicle and leave. The farmers took Singh to the village

doctor, who provided him with bandages and medication.

Singh did not report this second attack to the police because

they had told him after the first attempted report “that if you

ever show up over here again we will frame you in a false

case and lock you up.”

During the hearing before the IJ, Singh testified that he

could not safely relocate within India because the Congress

Party would find him wherever he moved. He explained

that, even in a city as large as New Delhi, he could be found

because his identification and information would be

processed if he sought housing or an education.

Singh explained that, after staying in Maqsudpur “in a

hiding manner” for a few weeks, he lived with his uncle in

Plath until September 2018. At that point Singh left India.

B. The IJ’s decision

The IJ issued a decision finding Singh removable as

charged and denying his applications for asylum,

12 SINGH V. GARLAND

withholding of removal, and CAT relief. From the outset,

however, the IJ found Singh credible.

Despite that finding, the IJ declined to “find the totality

of the record here support[ed] a finding of past persecution”

because the IJ found no evidence in the record to show that

Singh suffered “any serious injuries” or any that “required

serious medical attention” from his attacks. In addition, the

IJ found that Singh’s continued presence in Maqsudpur for

nearly a year after the initial verbal confrontation

“significant.” The IJ also found that “[t]he fact that the

police declined to investigate [Singh’s] vague accusations

does not amount to persecution. Nor does the officer’s order

to [Singh] to depart the station or face possible arrest amount

to persecution.”

In evaluating Singh’s future-persecution claim, the IJ

found that Singh had not established an individualized risk

of persecution if he returned to India, nor had he established

a practice or pattern of persecution against similarly situated

individuals. The IJ found, in his analysis of individualized

risk, that Singh had failed to demonstrate that the attackers

had “any interest in persecuting him if he were to return” to

India.

The IJ also determined that Singh could internally

relocate within India to avoid persecution. According to the

IJ, Singh did not establish that his persecutors were members

of the Indian government or a government-sponsored entity,

and that Singh’s time with his uncle showed that he could

safely move to a different place in India. Based on this

analysis, the IJ denied Singh’s application for asylum and for

withholding of removal.

The IJ also denied Singh’s application for CAT

protection. He found “no credible evidence in this record to

SINGH V. GARLAND 13

demonstrate that [Singh] suffered mistreatment amounting

to torture while in India by public officials or by individuals

acting at the instigation of or with the consent or

acquiescence of public officials.” The IJ noted that “Indian

law prohibits the use of torture and other forms of cruel,

inhuman, or degrading treatment or punishment.” He also

found that Singh “only present[ed] a speculative fear of

being harmed in [India], as opposed to a particularized fear

of torture,” and that “[a]ny fear of future harm in India

possessed by [Singh] would be at the hands of private

individuals.”

C. The BIA’s decision

Singh appealed the IJ’s decision to the BIA. In

dismissing the appeal, the BIA reviewed Singh’s past-

persecution claim, concluding that “the cumulative effect of

[Singh’s] alleged harm does not rise to the level of

persecution.” Although the BIA found that Singh had been

verbally accosted once and physically beaten twice (once

with hockey sticks) and that one of these physical beatings

was accompanied with a death threat, the BIA concluded that

Singh failed to establish past persecution because “the record

lacks evidence to show that [Singh] suffered any serious

injuries.” It based this conclusion on the evaluation from the

doctor who treated Singh after his second physical assault by

members of the Congress Party that had “indicated that the

extent of his injuries were ‘small bruises, scratches, blue

marks and some part of swollen body.’”

The BIA next rejected Singh’s future-persecution claim.

Because the BIA had determined that Singh had not suffered

any past persecution, it held that Singh bore the burden of

demonstrating that he had a well-founded fear of future

persecution as well. The BIA agreed with the IJ that Singh

14 SINGH V. GARLAND

did not establish “an objectively reasonable fear that he

would be singled out for persecution if he returns to India”

because “he ‘has not shown that the unnamed individuals he

claims were members of the Congress Party, who allegedly

offered him the opportunity to sell drugs, have any interest

in persecuting him if he were to return to his home country.’”

Like the IJ, the BIA found significant the fact that

Singh’s father continues to live in India without any

interactions with the unknown assailants, and that Singh was

able to freely depart the country using his passport. The BIA

also rejected Singh’s reliance on country reports that

mention mass corruption and bribes in India with regard to

police officers. It determined that these reports were

indicative only of a generalized fear rather than an individual

fear of persecution.

In relation to the persecution claims, the BIA affirmed

the IJ’s determination that Singh had failed to demonstrate

that he is unable to relocate within India or that relocation is

unreasonable. The BIA relied on the IJ’s finding that Singh

“did not provide evidence that the source of [the] alleged

persecution is the Indian government or a government-

sponsored entity,” and that “the record lacks evidence to

show that the ‘unknown, masked individuals’ who

confronted [Singh] were public officials or were doing so on

behalf of the Indian government.” In addition, the BIA noted

that the IJ “determined that record evidence establishes

[Singh’s] ability to safely relocate within India.”

The BIA finally reached Singh’s CAT claim. It

determined that “there is no clear error in the Immigration

Judge’s determination that [Singh] has not established that it

is more likely than not that he will be tortured in India by or

at the instigation of or with the consent or acquiescence of a

SINGH V. GARLAND 15

public official or other person acting in an official capacity.”

The BIA offered no additional reasoning for this finding.

II. ANALYSIS

A. Standards of review

“Our review is limited to the BIA’s decision, except to

the extent that the IJ’s opinion is expressly adopted.”

Khudaverdyan v. Holder, 778 F.3d 1101, 1105 (9th Cir.

2015) (citation and internal quotation marks omitted).

Questions of law are reviewed de novo. Rodriguez v.

Holder, 683 F.3d 1164, 1169 (9th Cir. 2012). Factual

findings are reviewed under the substantial-evidence

standard. Navas v. INS, 217 F.3d 646, 657 (9th Cir. 2000)

(citing INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).

Under this standard, “[a] factual finding is ‘not supported by

substantial evidence when any reasonable adjudicator would

be compelled to conclude to the contrary based on the

evidence in the record.’” Aden v. Wilkinson, 989 F.3d 1073,

1079 (9th Cir. 2021) (quoting Bringas-Rodriguez v.

Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc)).

The following analysis focuses primarily on whether

Singh’s experiences in India constituted past persecution.

We have held that “[w]hether particular acts constitute

persecution for asylum purposes is a legal question reviewed

de novo.” Kaur v. Wilkinson, 986 F.3d 1216, 1221 (9th Cir.

2021) (alterations omitted) (quoting Boer-Sedano v.

Gonzales, 418 F.3d 1082, 1088 (9th Cir. 2005)); see also

Flores Molina v. Garland, 37 F.4th 626, 640 (9th Cir. 2022)

(Korman, J., concurring) (identifying cases in which we

have used the substantial-evidence standard to review the

past-persecution question and explaining why “the

substantial evidence standard is not a good fit for questions,

16 SINGH V. GARLAND

like the one presented in this case, regarding the application

of a legal standard to settled facts”).

But we have also held that we “review for substantial

evidence the BIA’s particular determination that a

petitioner’s past harm ‘does not amount to past

persecution.’” Sharma v. Garland, 9 F.4th 1052, 1060 (9th

Cir. 2021) (alteration omitted) (quoting Villegas Sanchez v.

Garland, 990 F.3d 1173, 1179 (9th Cir. 2021)). Like this

court in Flores Molina, “[w]e need not address whether de

novo review should apply, or discuss the nuances of the two

standards, because the harm [Singh] suffered rose to the

level of persecution under the more deferential ‘substantial

evidence’ standard of review” as we have applied that

standard in evaluating claims of past persecution. Flores

Molina, 37 F. 4th at 633 n.2 (citing Fon v. Garland, 34 F.4th

810, 813 n.1 (9th Cir. 2022)).

B. Asylum

Asylum is available at the discretion of the Attorney

General to an applicant who demonstrates that he is a

“refugee.” 8 U.S.C. § 1158(b)(1). A “refugee” is defined as

someone “who is unable or unwilling to return to the country

of origin ‘because of persecution or a well-founded fear of

persecution on account of race, religion, nationality,

membership in a particular social group, or political

opinion.’” Melkonian v. Ashcroft, 320 F.3d 1061, 1064 (9th

Cir. 2003) (quoting 8 U.S.C. § 1101(a)(42)(A)). “The

source of the persecution must be the government or forces

that the government is unwilling or unable to control.”

Canales-Vargas v. Gonzales, 441 F.3d 739, 743 (9th Cir.

2006).

SINGH V. GARLAND 17

1. Singh’s past persecution

Singh may demonstrate past persecution with evidence

that (1) he has endured serious harm such that his “treatment

rises to the level of persecution”; (2) “the persecution was

committed by the government, or by forces that the

government was unable or unwilling to control”; and (3)

“‘the persecution was on account of one or more protected

grounds,’ such as a political opinion.” See Kaur, 986 F.3d

at 1221–22 (quoting Bringas-Rodriguez v. Sessions, 850

F.3d 1051, 1062 (9th Cir. 2017) (en banc)). If Singh makes

such a showing, then the government bears the burden of

demonstrating that Singh can safely relocate within India

and that doing so is not unreasonable. See id. at 1230–31.

The IJ found Singh to be a credible witness. There were

only two concerns that the IJ expressed regarding Singh’s

credibility: (1) a minor omission in his declaration, and

(2) his testimony contained speculation. Neither concern

was sufficient for an adverse credibility determination, and

the IJ concluded that Singh’s testimony was “otherwise

consistent with his written statement and plausible in light of

evidence of country conditions.” The BIA did not question

this credibility determination, and there is no indication that

“the BIA implicitly found the presumption of credibility

rebutted.” Garland v. Dai, 141 S. Ct. 1669, 1679

(2021). “The only question for judges reviewing the BIA’s

factual determinations is whether any reasonable adjudicator

could have found as the agency did.” Id. at 1678. Here, we

defer to the agency’s credibility determination, which was

supported by substantial evidence.

The BIA “affirm[ed] the Immigration Judge’s

determination that the lack of serious harm does not support

a finding of persecution.” Its analysis of Singh’s past-

18 SINGH V. GARLAND

persecution claim stopped at the serious-harm prong based

on this conclusion. As the analysis below explains, we

conclude that the BIA’s determination that Singh did not

suffer serious harm is not supported by substantial evidence.

The BIA’s analysis therefore should have proceeded to the

remaining components of the past-persecution analysis. For

this reason, we remand Singh’s petition to the BIA so that it

can complete the past-persecution analysis.

i. Serious harm

We begin with an analysis of whether the record

demonstrates that Singh was a victim of serious harm while

in India. Five factors compel the conclusion that Singh

indeed experienced serious harm: (1) he was forced to flee

his home after being repeatedly assaulted; (2) one of those

incidents involved a death threat; (3) he was between the

ages of 16 and 18 when the attacks occurred; (4) his brother

also experienced this violence; and (5) we have already

recognized that Mann Party members have faced persistent

threats in the region of India where Singh was twice

attacked. The IJ and the BIA found “no reason to doubt the

truth, or ‘persuasiveness,’” of these five core factors. See

Plancarte Sauceda v. Garland, 23 F.4th 824, 827 (9th Cir.

2022) (citing Dai, 141 S. Ct. at 1680-81).

Our recent decision in Flores Molina makes clear that,

where “repeated incidents in which [the petitioner] fled were

each ‘in the face of an immediate threat of severe physical

violence or death,’” those incidents “rise to the level of

persecution.” Flores Molina v. Garland, 37 F.4th 626, 634

(9th Cir. 2022) (quoting Mendoza-Pablo v. Holder, 667 F.3d

1308, 1314 9th Cir. 2012)); id. at 636 (“Any reasonable

adjudicator would be compelled to hold that the repeated and

specific death threats that Flores Molina experienced, amid

SINGH V. GARLAND 19

the violence and menacing confrontations to which he was

subjected, amount to persecution.”).

We have held that “being forced to flee from one’s home

in the face of an immediate threat of severe physical violence

or death is squarely encompassed within the rubric of

persecution.” Id. at 633–34 (quoting Mendoza-Pablo, 667

F.3d at 1314); see also Kaur, 986 F.3d at 1222 (holding that

“[t]he hallmarks of persecutory conduct include, but are not

limited to, the violation of bodily integrity and bodily

autonomy” (citing Singh v. INS, 134 F.3d 962, 967 (9th Cir.

1998))); Lopez v. Ashcroft, 366 F.3d 799, 803 (9th Cir. 2004)

(“[P]hysical harm constitutes persecution.” (citing Chand v.

INS, 222 F.3d 1066, 1073 (9th Cir. 2000))).

We have also held that “[w]here an applicant suffers

such harm on more than one occasion, and as in this case is

victimized at different times over a period of years, the harm

is severe enough that no reasonable fact-finder could

conclude that it did not rise to the level of persecution”

necessary to sustain an asylum claim. Chand, 222 F.3d at

1073–74 (citing Korablina v. INS, 158 F.3d 1038, 1044 (9th

Cir. 1998)). Even if an applicant does not suffer physical

violence, we have “consistently held that death threats alone

can constitute persecution.” Canales-Vargas, 441 F.3d at

743–44 (quoting Navas, 217 F.3d at 658); see also Flores

Molina, 37 F.4th at 634 (“And we have ‘consistently held

that death threats alone can constitute persecution.’”

(emphasis in original) (quoting Navas, 217 F.3d at 658).

Singh had to flee his home after he was the victim of a

verbal confrontation and two physical attacks, one of which

involved a death threat. Based on our precedents, he

suffered serious harm. The BIA disagreed, noting that Singh

suffered from only bruises, scratches, and swollen body parts

20 SINGH V. GARLAND

after these altercations. But we do not require severe injuries

to meet the serious-harm prong of the past-persecution

analysis. See Flores Molina, 37 F.4th at 636 (“‘[I]t is the

conduct of the persecutor’ that is relevant to evaluating

whether past treatment rises to the level of persecution—not

‘the level of harm’ or ‘subjective suffering’ the petitioner

experienced.” (quoting Kaur, 986 F.3d at 1226)). As we

have previously noted, “it would be a strange rule if the

absence or presence of a broken arm were the dispositive

fact” in an asylum claim. Mihalev v. Ashcroft, 388 F.3d 722,

730 (9th Cir. 2004).

The conclusion that Singh experienced serious harm is

strengthened by the fact that these attacks occurred when he

was between the ages of 16 and 18. “Age can be a critical

factor in the adjudication of asylum claims and may bear

heavily on the question of whether an applicant was

persecuted or whether she holds a well-founded fear of

future persecution.” Hernandez-Ortiz v. Gonzales, 496 F.3d

1042, 1045 (9th Cir. 2007) (citation and alteration omitted).

The determination that Singh’s experiences constitute

serious harm is further compelled by the fact that Singh’s

brother, Harpreet, also experienced physical violence and

was forced to flee India because “harms that have befallen a

petitioner’s family members or close friends” strengthen an

applicant’s past-persecution claim. Sharma v. Garland,

9 F.4th 1052, 1062 (9th Cir. 2021). Harpreet was attacked

in April and August 2017 and suffered internal injuries at the

hands of Congress Party members. A local Mann Party

representative wrote that “[s]hould Harpreet Singh return[]

to India to adopt normal life, it is more than likely that he

would be prosecuted by the government authorities and can

be eliminated like many other activists.” That conclusion

SINGH V. GARLAND 21

was based, in part, on the persecution faced by many of those

affiliated with the Mann Party in the “recent past.”

Finally, we have recognized in multiple cases that

“Mann Party members have faced persistent harassment,

intimidation, threats, and violence in Punjab,” the Indian

state in which Singh was twice attacked. Kaur, 986 F.3d at

1219–20 (first citing Singh v. Whitaker, 914 F.3d 654, 657

(9th Cir. 2019); and then citing Singh v. Ashcroft, 362 F.3d

1164, 1167–68 (9th Cir. 2004)). We have “held that an

asylum applicant’s claim of persecution is further

strengthened when evidence that the applicant was

physically beaten and threatened with his life is presented in

conjunction with evidence of the country’s ‘political and

social turmoil.’” Aden, 989 F.3d at 1083 (quoting

Korablina, 158 F.3d at 1045).

Despite this compelling evidence, the BIA affirmed the

IJ’s determination that Singh did not suffer from past

persecution because he did not suffer serious physical injury.

But that “strange rule” is not, in fact, the rule. In the

subsequent analysis, we delve into the cases cited by the BIA

to support its conclusion. We do this because past-

persecution analysis is “best answered by comparing the

facts of Petitioner’s case with those of similar cases.” Singh,

134 F.3d at 967–68 (citation omitted).

a. Cases cited by the BIA

The BIA cited three cases in support of its decision:

Duran-Rodriguez v. Barr, 918 F.3d 1025 (9th Cir. 2019);

Hoxha v. Ashcroft, 319 F.3d 1179 (9th Cir. 2003); and Gu v.

Gonzales, 454 F.3d 1014 (9th Cir. 2006). None of these

cases involve multiple instances of physical violence

coupled with a death threat.

22 SINGH V. GARLAND

In Duran-Rodriguez, we determined that a death threat

from men believed to be hitmen delivered once over the

phone and once in person over the course of two days was

insufficient to compel the conclusion that the petitioner

suffered past persecution. 918 F.3d at 1028. Duran-

Rodriguez is dissimilar from the instant case because Singh

experienced physical violence in conjunction with a death

threat—Duran-Rodriguez did not—and because Singh was

subject to the constant threat of violence over the course of

two years, not two days.

The BIA also cited Hoxha for its conclusion that Singh

did not suffer past persecution. This reliance is misplaced.

In Hoxha, an ethnic Albanian from the former Kosovo

region of Serbia testified to suffering from harassment,

threats, and mistreatment at the hands of Serbs. Hoxha and

a friend were beaten by an anonymous group of Serbs on one

occasion when they were overheard speaking Albanian. In

concluding that Hoxha had introduced insufficient evidence

to compel a finding of past persecution, we focused on the

fact that the single incident of physical violence “was not

connected with any particular threat and there [was] no

evidence that the attackers knew who Hoxha was or that they

showed any continuing interest in him.” 319 F.3d at 1182.

In contrast, the attacks against Singh were connected

with particular threats. The 2018 attacks took place after

Congress Party members confronted Singh verbally in 2017

and attacked Singh’s brother, Harpreet, earlier that year.

Evidence within the record also indicates that Singh’s

attackers knew his identity and demonstrated a continuing

interest in him. During the third incident, Singh’s attackers

sought him out on the route between his family’s farm and

his home and threatened him with death. Sufficient evidence

demonstrates that Singh’s attackers knew his identity and

SINGH V. GARLAND 23

displayed a continuing interest in him, unlike the attackers

in Hoxha.

Gu is somewhat more applicable to the instant case than

Duran-Rodriguez or Hoxha, but is still distinguishable. In

Gu, the applicant experienced one brief detention, beating,

and interrogation by the Chinese police because he

distributed Christian religious materials and participated in

an unsanctioned religious practice. We concluded that the

one incident did not compel a finding of past persecution,

distinguishing cases in which the persecutor had some

“continued interest” in the petitioner from those of “a single,

isolated encounter.” 454 F.3d at 1020–21. Unlike the

petitioner in Gu, Singh was repeatedly targeted over a period

of two years, with members of the Congress Party tracking

his actions and taking a “continued interest” in his political

activity and efforts to get police help.

b. Two similar cases

Because the past-persecution analysis is informed “by

comparing the facts of Petitioner’s case with those of similar

cases,” Singh, 134 F.3d at 967–68, we now turn to two cases

that are quite similar to Singh’s: Aden, 989 F.3d 1073, and

Flores Molina, 37 F.4th 626.

In relevant part, Aden and his family experienced one

physical attack and a death threat while living in Somalia.

Aden worked in a theater that his brother owned. His brother

was told twice to shut down the theater, but he refused to do

so. One month later, ten men raided the theater while Aden

and his brother were working there. They struck Aden in the

head with the butt of a gun and confiscated the movie-

screening equipment.

24 SINGH V. GARLAND

The Aden court determined that “Aden presented

sufficient evidence to compel the conclusion that he suffered

persecution” because when the incidents at issue in an

applicant’s case “have involved physical harm plus

something more, such as credible death threats, we have not

hesitated to conclude that the petitioner suffered

persecution.” Id. at 1082–83 (collecting cases). It

characterized Gu as an instance of “one-off, minor physical

assault followed by a life of unrestrained religious practice

or political expression” that did not “compel the conclusion

that a person has suffered persecution” within the meaning

of the statute. Id. at 1083.

We found that Aden’s case was distinct from Gu because

“Aden [] presented a far more compelling case” by showing

that his attackers physically beat him and “kept tabs on him

by contacting his brother and warn[ing] they would kill

Aden and his brother if they continued to disobey” the

attackers’ commands. Id. Moreover, “Aden presented

evidence that Somalia continued to experience political and

social turmoil.” Id. at 1084 & n.8 (citing Human Rights

Watch World Report (2016); Human Rights Watch, UN

Human Rights Council: Interactive Dialogue with the

Independent Expert on the Situation in Somalia (Sept. 30,

2015), https://www.hrw.org/news/2015/09/30/unhuman-

rights-council-interactive-dialogue-independent-expert-

situation-somalia).

As explained above, Singh’s attackers (like Aden’s) beat

him and targeted him and his brother specifically. They also

kept tabs on him, noting that he had reported their behavior

to the police and following him when he was traveling from

his family’s farm. Singh’s case is even more extreme than

Aden’s in some ways because Singh was physically attacked

SINGH V. GARLAND 25

twice in India, whereas Aden was physically attacked only

once while he was in Somalia.

Flores Molina is also similar to Singh’s case. In Flores

Molina, the petitioner alleged past persecution in Nicaragua

based on death threats that he received after protesting the

Ortega government. Government operatives circulated

social media posts stating that Flores Molina was an

instigator and that he should be sent to prison. Ortega

supporters subsequently drove to Flores Molina’s home and

verbally threatened him. Masked individuals then spray

painted Flores Molina’s home with the words “Bullets to

Strikers.”

After these verbal threats, Flores Molina fled his home.

Paramilitary members arrived at his hideaway wearing ski

masks and demanded that he come outside. He evaded

detection in the backyard. Once the paramilitary members

left, Flores Molina fled for a second time. Six masked

individuals found his second hideaway. These individuals

hit Flores Molina in the face, causing him to lose a tooth and

ultimately develop a scar on his lip. “As they beat him, the

attackers warned Flores Molina, ‘This is what happens to the

ones that want to be part of the coup. And at the next

encounter, we’re going to kill you.’” 37 F.4th at 631. Flores

Molina did not go to the doctor to treat his injuries for fear

of seeing police officers and paramilitary members at the

hospital. Id.

The BIA held that Flores Molina had failed to show past

persecution. In rendering its decision, the BIA relied on Lim

v. INS, 224 F.3d 929 (9th Cir. 2000), for the conclusion that

threats must be very extreme to constitute persecution and

on Gu for the proposition that physical harm must rise to a

particular level to constitute persecution.

26 SINGH V. GARLAND

But we held that the record compelled the conclusion

that Flores Molina’s experiences constituted persecution

because “being forced to flee from one’s home in the face of

an immediate threat of severe physical violence or death is

squarely encompassed within the rubric of persecution,” and

“death threats alone can constitute persecution.” Id. at 633–

35 (citations and emphases omitted). The court

distinguished Lim because Lim and his family had never

been assaulted or closely confronted, whereas Flores Molina

had been physically beaten by political opponents. Id. at

635. Additionally, the court distinguished Gu because

Flores Molina, unlike Gu, experienced past persecution

based on multiple threats, an instance of physical assault,

and the broader context of violence targeted at him and

others who expressed dissatisfaction with the Ortega

government. Id. at 635–36.

The combination of death threats and physical violence

that Singh experienced is squarely in line with what we held

in Aden and Flores Molina was sufficient to compel a

finding of past persecution. Like Singh, neither Aden nor

Flores Molina suffered any life-threatening physical injuries.

At bottom, Aden, Flores Molina, and Singh were involved

in fundamentally the same scenario: a petitioner targeted for

his political views, threatened (including a death threat),

assaulted (leaving physical wounds), and compelled to flee

his home.

ii. Government involvement

We now turn to whether “the persecution was committed

by the government, or by forces that the government was

unable or unwilling to control.” Kaur, 986 F.3d at 1221. In

a different portion of the order, the BIA noted that Singh “did

not provide evidence that the source of [the] alleged

SINGH V. GARLAND 27

persecution is the Indian government or a government-

sponsored entity.” But the BIA did not address the question

of whether the government was either “unable or unwilling

to control” the attackers, and we clarify for the parties and

the agency that this prong of the past-persecution analysis

has not yet been resolved.

iii. Protected grounds

To prevail on an asylum claim, a petitioner must also

demonstrate that the persecution was “on account of” a

statutorily protected ground. Parussimova v. Mukasey, 555

F.3d 734, 739 (9th Cir. 2009). Singh argues that he was

attacked for his own attributed political opinion and his

association with his brother, a member of the Mann Party.

As above, we clarify that this question still needs to be

addressed on remand.

2. Singh’s fear of future persecution

If Singh is able, on remand, to demonstrate that he

suffered past persecution on account of a statutorily

protected ground at the hands of individuals whom the

government was unable or unwilling to control, then the

showing would “give[] rise to a presumption of a well-

founded fear of future persecution and shift[] the evidentiary

burden to the government to rebut that presumption.” See

Canales-Vargas, 441 F.3d at 743 (citation omitted). The

government would be required to show that there has been a

“fundamental change in circumstances” concerning Singh’s

well-founded fear of future persecution or that Singh could

“avoid future persecution by relocating to another part of

[India], and under all the circumstances, it would be

reasonable to expect [him] to do so.” See Boer-Sedano v.

Gonzales, 418 F.3d 1082, 1089 (9th Cir. 2005) (alteration

omitted) (quoting 8 C.F.R. § 1208.13(b)(1)(i)(A)-(B)).

28 SINGH V. GARLAND

In the present case, the BIA considered the question of

Singh’s relocation, but because the burden was on Singh, it

determined that Singh had “not demonstrated that he is

unable to relocate within India or that relocation is

unreasonable.” But, in Singh, 914 F.3d at 659, we

emphasized that once a petitioner establishes past

persecution, “the burden is on the government” to show that

the petitioner “can reasonably relocate internally to an area

of safety.” On remand, if Singh demonstrates past

persecution, the BIA should “conduct a thorough,

individualized analysis of [Singh’s] ability to relocate

internally, placing the burden on the government as required

under Singh.” See Kaur, 986 F.3d at 1231. We caution that

“an applicant cannot be said to have the ability to ‘relocate’

within [his] home country if [he] would have to remain in

hiding there.” Akosung v. Barr, 970 F.3d 1095, 1102 (9th

Cir. 2020).

C. Withholding of removal

We now turn to Singh’s request for withholding of

removal. A petitioner is entitled to withholding of removal

if he can establish a “clear probability,” INS v. Cardoza-

Fonesca, 480 U.S. 421, 430 (1987), that his “life or freedom

would be threatened” upon return because of a protected

category, 8 U.S.C. § 1231(b)(3)(A). Withholding’s “clear-

probability” standard is more stringent than asylum’s well-

founded-fear standard “because withholding of deportation

is a mandatory form of relief.” Canales-Vargas, 441 F.3d at

746.

If a petitioner establishes eligibility for asylum, he

“raises a presumption of entitlement to withholding of

deportation.” Id. (citation omitted). But an applicant who

“fail[s] to satisfy the lower standard of proof required to

SINGH V. GARLAND 29

establish eligibility for asylum . . . necessarily . . . fail[s] to

demonstrate eligibility for withholding.” Pedro-Mateo v.

INS, 224 F.3d 1147, 1150 (9th Cir. 2000) (citation omitted).

Here, the BIA reasoned that “[t]he Immigration Judge’s

denial of the respondent’s application for asylum on the

merits is also fatal to the respondent’s application for

withholding of removal under the Act,” so it did not reach

the merits of Singh’s withholding of removal claim. We

remand the withholding-of-removal claim to the BIA so that

it can determine whether Singh has established an asylum

claim and thus benefits from a “presumption of entitlement

to withholding of deportation.” See Canales-Vargas, 441

F.3d at 746.

The government, however, argues that “the agency’s

relocation finding is a dispositive determination” and that we

should uphold the BIA’s asylum and withholding decisions

because it determined that Singh could relocate within India.

But we have consistently held that improperly placing the

burden of proof on the petitioner once the petitioner has

established past persecution constitutes error in a manner

that warrants remand. See, e.g., Mashiri v. Ashcroft, 383

F.3d 1112, 1123 (9th Cir. 2004) (“The IJ erred by placing

the burden of proof on [the petitioner] rather than on the

government.”); Vardanyan v. Barr, 830 F. App’x 185, 189

(9th Cir. 2020) (holding that the BIA erred when it

“improperly shifted the government’s burden of establishing

reasonableness to [the petitioner], who, as a result, was

required to establish the unreasonableness of relocation”).

We abide by this precedent in holding that the relocation

determination is not dispositive, and we remand so that the

BIA can consider whether Singh is entitled to the

presumption given to those who have suffered from past

persecution.

30 SINGH V. GARLAND

D. Convention Against Torture

This leaves Singh’s claim for relief under CAT. To

assert this claim, Singh must establish that it is “more likely

than not” that he will be tortured if removed to India. See

Kamalthas v. INS, 251 F.3d 1279, 1282 (9th Cir. 2001)

(citing 8 C.F.R. § 208.16(c)(2)). Singh must further show

that any torture would be “inflicted by or at the instigation

of or with the consent or acquiescence of a public official or

other person acting in an official capacity.” See 8 C.F.R. §

208.18(a)(1)).

The regulations implementing CAT define torture as

any act by which severe pain or suffering,

whether physical or mental, is intentionally

inflicted on a person for such purposes as . . .

punishing him or her for an act he or she or a

third person has committed or is suspected of

having committed, . . . or for any reason

based on discrimination of any kind, when

such pain or suffering is inflicted by or at the

instigation of, or with the consent or

acquiescence of, . . . a public official acting

in an official capacity or other person acting

in an official capacity.

8 C.F.R. § 1208.18(a)(1).

The CAT analysis does not follow the same pattern as

the asylum and withholding analyses when the petitioner

establishes past persecution. Even if the petitioner

demonstrates past persecution, the burden does not shift to

the government in the analysis of a CAT claim. See

Moldanado v. Lynch, 786 F.3d 1155, 1163 (9th Cir. 2015)

SINGH V. GARLAND 31

(“The regulations governing CAT deferral, unlike the

asylum regulation, do not call for any burden shifting.”).

Here, the IJ “independently” concluded that “the Court

cannot find sufficient evidence in this record to conclude that

the treatment amounted to torture.” The BIA in the present

case concluded, based on “a review of the record,” that

“there is no clear error in the Immigration Judge’s

determination that [Singh] has not established that it is more

likely than not that he will be tortured in India by or at the

instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.”

Relevant to the CAT analysis (but included in the asylum

portion of the decision), the BIA also found that Singh could

safely relocate within India and that the country reports did

not substantiate Singh’s fear of returning to India because

they demonstrated only a fear based on general, rather than

individualized, conditions.

Taken together, the IJ’s and BIA’s findings that Singh

did not suffer past torture and was not likely to suffer future

torture were supported by substantial evidence. See Fon, 34

F.4th at 816 (finding that the record compelled a finding of

past persecution, but concluding that substantial evidence

supported the BIA’s determination that a petitioner failed to

show that it is more likely that not that he would be tortured).

We therefore deny the petition as to CAT relief.

III. CONCLUSION

For all of the reasons set forth above, we GRANT

Singh’s petition in part, DENY Singh’s petition in part, and

REMAND to the BIA for further proceedings consistent

with this opinion.

32 SINGH V. GARLAND

MILLER, Circuit Judge, concurring:

When the Board of Immigration Appeals has determined

that the harm an alien suffered was not sufficiently severe to

constitute persecution, we have sometimes treated that

determination as a factual finding and sometimes as a legal

conclusion. The appropriate standard of review in that

context implicates both intra-circuit and inter-circuit

conflicts, and, as Judge Collins has observed, “our caselaw

on this subject is a bit of a mess.” Fon v. Garland, 34 F.4th

810, 823 (9th Cir. 2022) (Collins, J., concurring). I share

Judge Collins’s view that “the en banc court should take up

these issues in an appropriate case” if the Supreme Court

does not do so first. Id.; see also id. at 819 (Graber, J.,

concurring).

Whatever the standard of review, however, our

precedent establishes rules that govern our decisions in cases

involving similar facts. Our dissenting colleague faults the

court for setting aside the Board’s decision even though it

reflected what the dissent calls “a reasonable interpretation

of our precedent,” if perhaps not the best interpretation of

that precedent. I fully agree that many of our cases in this

area—including some of those that dictate today’s

decision—have reflected insufficient deference to the Board.

But whether we like them or not, our cases are what they are,

and it is up to this court, not the Board, to say what they

mean. We must defer to the Board’s factual findings, see 8

U.S.C. § 1252(b)(4)(B), as well as, in certain cases, to its

interpretation of the statute, see Chevron U.S.A. Inc. v.

NRDC, Inc., 467 U.S. 837 (1984); Route v. Garland, 996

F.3d 968, 975 (9th Cir. 2021) (holding that Chevron

deference does not extend to most of the Board’s

unpublished decisions). But a court “gives no deference to

SINGH V. GARLAND 33

an agency’s interpretation of judicial precedent.” SFPP, L.P.

v. FERC, 967 F.3d 788, 795 (D.C. Cir. 2020) (per curiam);

accord University of Great Falls v. NLRB, 278 F.3d 1335,

1341 (D.C. Cir. 2002); Akins v. FEC, 101 F.3d 731, 740

(D.C. Cir. 1996) (en banc) (observing that there is “no reason

for courts—the supposed experts in analyzing judicial

decisions—to defer to agency interpretations of the Court’s

opinions”), vacated on other grounds, 524 U.S. 11 (1998).

And to say, as our dissenting colleague does, that the Board’s

decision must be upheld “unless our precedent would

compel any reasonable adjudicator to conclude the contrary”

is to conflate the Board’s factual findings (which we review

deferentially) with its application of the legal rules

established by our precedent (which we do not).

As the court’s opinion explains, our cases in this area

permit no conclusion other than that the harm that Singh

suffered constituted persecution. To be sure, there are many

cases in which we have upheld findings of no persecution.

Perhaps the most helpful case for the Board is Hoxha v.

Ashcroft, but that case involved an isolated incident, not a

pattern of harm. 319 F.3d 1179, 1182 (9th Cir. 2003) (“The

one incident of physical violence against Hoxha was not

connected with any particular threat.”); see Chand v. INS,

222 F.3d 1066, 1073 (9th Cir. 2000) (noting the significance

of a pattern of “harm on more than one occasion”).

Here, the most closely analogous cases are Flores

Molina v. Garland, 37 F.4th 626 (9th Cir. 2022), and Aden

v. Wilkinson, 989 F.3d 1073 (9th Cir. 2021). Of course it is

possible to identify factual differences among the cases. For

example, Flores Molina was forced to flee his home under

somewhat more difficult circumstances than Singh, was

publicly identified and targeted, was threatened slightly

more frequently, and was subjected to different country

34 SINGH V. GARLAND

conditions. Aden, likewise, received threats not only to

himself but also to his family, suffered more serious injuries,

and came from a country with somewhat different

conditions. But nothing in the reasoning of the opinions in

Flores Molina and Aden suggests that those differences

should matter. At bottom, those cases and this one involve

fundamentally the same story: The alien was targeted

multiple times for his political views, threatened (including

with a death threat), assaulted (leaving non-severe physical

wounds), and forced to flee his home. Unless we are to

overrule those cases—and, as three-judge panel, we are

unable to do so—there is no principled basis for reaching a

different result here.

IKUTA, Circuit Judge, dissenting:

A determination by the Board of Immigration Appeals

(BIA) that an alien is not entitled to asylum must be upheld

unless a reasonable factfinder would be compelled to

conclude to the contrary. INS v. Elias-Zacarias, 502 U.S.

478, 481 (1992); see also 8 U.S.C. § 1252(b)(4)(B). Based

on that standard, we may not reverse the BIA’s

determination that Shamsher Singh’s testimony did not

demonstrate that he suffered persecution.

But the majority today “flips this standard on its head,”

Garland v. Ming Dai, 141 S.Ct. 1669, 1678 (2021). Instead

of deferring to the BIA’s determination “as one of

potentially many reasonable possibilities,” id., the majority

claims the BIA’s decision is contrary to our precedent. But

our precedent encompasses wide-ranging views of what

constitutes persecution. A fair review of our cases shows

SINGH V. GARLAND 35

that the majority reaches its conclusion only by cherry-

picking similar facts in cases where we reversed the BIA,

and distinguishing similar facts in cases where we upheld the

BIA’s conclusion. Because the Supreme Court has told us

to respect the BIA’s case-by-case application of legal

standards to the facts, and to reverse the BIA’s conclusion

only if no reasonable adjudicator could have reached that

result, I dissent from the majority’s improper approach and

conclusion.

I

The Immigration and Nationality Act (INA) gives the

Attorney General discretion to grant asylum to a refugee,

which the statute defines as an alien who is unable or

unwilling to return to his home country “because of

persecution or a well-founded fear of persecution on account

of race, religion, nationality, membership in a particular

social group, or political opinion.” 8 U.S.C. § 1101(a)(42).

We have defined persecution as “an extreme concept that

means something considerably more than discrimination or

harassment.” Sharma v. Garland, 9 F.4th 1052, 1060 (9th

Cir. 2021) (cleaned up); see also Duran-Rodriguez v. Barr,

918 F.3d 1025, 1028 (9th Cir. 2019).

Notwithstanding our confusing case law, see Maj. at 15–

16, the Supreme Court has been clear about the standard for

reviewing the BIA’s determination that an applicant for

asylum did not show “persecution or a well-founded fear of

persecution on account of” a protected ground. See Elias-

Zacarias, 502 U.S. 478 (1992). In Elias-Zacarias, the

agency determined that an alien’s rejection of an attempt by

guerillas to recruit him did not demonstrate persecution or a

well-founded fear of persecution on account of a protected

ground. We disagreed and granted the alien’s petition,

36 SINGH V. GARLAND

ruling that “acts of conscription by a nongovernmental group

constitute persecution on account of political opinion” and

that the alien had a “well-founded fear” of such recruitment.

Id. at 481.

The Supreme Court reversed, holding that we erred both

in our interpretation of the INA and in our failure to apply

the correct standard of review. As to the standard of review,

the Court explained that a court must uphold “[t]he BIA’s

determination that the alien was not eligible for asylum” so

long as that determination was supported by substantial

evidence, which meant that a court could reverse the BIA’s

determination only if the evidence presented by the alien

“was such that a reasonable factfinder would have to

conclude that the requisite fear of persecution existed.” Id.

at 481. 1 In other words, to reverse the BIA, the alien would

have to show that the record “compels the conclusion” that

the legal standard is met. Id. at 483. But the evidence in

Elias-Zacarias did not compel the conclusion that the alien

held a political opinion or had “a ‘well-founded fear’ that the

guerillas would persecute him because of that political

1

At the time the Supreme Court ruled, the statute provided that the

agency’s determination had to be upheld if “supported by reasonable,

substantial, and probative evidence on the record, considered as a

whole.” 8 U.S.C. § 1105a(a)(4) (1991). This language was subsequently

replaced by the INA’s current language, stating that the agency’s

“findings of fact must be upheld unless any reasonable adjudicator would

be compelled to conclude the contrary.” 8 U.S.C. § 1252(b)(4)(B).

These standards are the same. See Nasrallah v. Barr, 140 S. Ct. 1683,

1692 (2020) (defining “the substantial-evidence standard” to mean “[t]he

agency’s ‘findings of fact are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary’” (citing §

1252(b)(4)(B)).

SINGH V. GARLAND 37

opinion” with the requisite “degree of clarity necessary to

permit reversal of a BIA finding to the contrary.” Id. 2

Before Elias-Zacarias, the Supreme Court had

recognized a different aspect of the deferential standard of

review for the BIA’s application of a legal standard to the

facts. See INS v. Cardoza-Fonseca, 480 U.S. 421, 448

(1987). Here the Court explained, “[t]here is obviously

some ambiguity in a term like ‘well-founded fear’ which can

only be given concrete meaning through a process of case-

by-case adjudication.” Id. And “[i]n that process of filling

any gap left, implicitly or explicitly, by Congress, the courts

must respect the interpretation of the agency to which

Congress has delegated the responsibility for administering

the statutory program.” Id. (citing Chevron, U.S.A., Inc. v.

Nat. Res. Def. Council, 467 U.S. 837, 843 (1984)).

Therefore, it is advisable that courts not “set forth a detailed

description of how” a particular legal standard should be

applied. Id. Reading Cardoza-Fonseca together with Elias-

Zacarias, we are to give Chevron deference to the BIA’s

determination of how a legal standard (such as the asylum

standard for well-founded fear of persecution) applies to the

2

The Court also corrected our interpretation of the law. We had reasoned

that “a guerrilla organization’s attempt to conscript a person into its

military forces necessarily constitutes ‘persecution on account of . . .

political opinion,’ because ‘the person resisting forced recruitment is

expressing a political opinion hostile to the persecutor and because the

persecutors’ motive in carrying out the kidnapping is political.’” Elias-

Zacarias, 502 U.S. at 481. In rejecting our interpretation of the INA, the

Court held first that a guerilla’s recruitment efforts do not “necessarily”

constitute persecution on account of political opinion because a person

may resist recruitment for a variety of reasons, and then held that in

determining whether the alien has suffered persecution on account of

political opinion only the alien’s views, not the persecutor’s, are relevant.

Id. at 481–82.

38 SINGH V. GARLAND

facts of a new case, even if we would have reached a

different conclusion.

While our review of the BIA’s application of a legal

standard to the facts is circumscribed, we still retain the final

authority to correct errors of law. For instance, if a court

“employing traditional tools of statutory construction,

ascertains that Congress had an intention on the precise

question at issue, that intention is the law and must be given

effect.” Id. In this vein, we have reversed the BIA if it

applied the wrong standard of review, see Rodriguez v.

Holder, 683 F.3d 1164, 1169–70 (9th Cir. 2012),

“misstate[ed] the record [or] fail[ed] to mention highly

probative or potentially dispositive evidence,” Castillo v.

Barr, 980 F.3d 1278, 1283 (9th Cir. 2020), or provided

insufficient explanation to show that it conducted “an

individualized review of the petitioner’s circumstances,”

Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995).

We have not had an easy time in discerning the line

between proper deference to the BIA’s adjudication of

specific cases and discharging our responsibility to decide

“narrow legal questions,” Cardoza-Fonseca, 480 U.S. at

448. Thus, notwithstanding the agency’s responsibility for

giving the term “persecution” concrete meaning through

case-by-case decisionmaking, we have frequently weighed

in on this issue. See, e.g., Flores Molina v. Garland, 37 F.4th

626, 633–37 (9th Cir. 2022); Sharma, 9 F.4th at 1061–63.

Our rulings as to when facts satisfy the legal standard of past

or future persecution are binding on both us and the BIA, see

Silva v. Garland, 993 F.3d 705, 717 (9th Cir. 2021), and

therefore provide guidance as to what a reasonable jurist

may consider compelling evidence of past persecution. See

Singh v. INS, 134 F.3d 962, 967–68 (“This inquiry . . . is

SINGH V. GARLAND 39

perhaps best answered by comparing the facts of Petitioner’s

case with those of similar cases.”).

Nevertheless, our precedents on this issue cannot be

applied as mechanical rules. Because applicants for asylum

relief present a boundless variety of individual

circumstances, “[t]he determination that actions rise to the

level of persecution is very fact-dependent,” Cordon-Garcia

v. INS, 204 F.3d 985, 991 (9th Cir. 2000), and this analysis

“is not reducible to a set formula” or bright-line rules.

Sharma, 9 F.4th at 1061. Indeed, the Supreme Court has

warned against imposing such rules on the BIA. In Elias-

Zacarias, the Supreme Court rejected our per se rule that a

guerilla’s recruitment effort “necessarily constitutes

‘persecution on account of . . . political opinion.” 502 U.S.

at 481. And in Garland v. Ming Dai, the Supreme Court

struck down our “special rule” that a reviewing court must

treat an alien’s testimony as credible in the absence of an

adverse credibility determination by the agency. 141 S. Ct.

1669, 1674, 1677 (2021).

Therefore, although the BIA may be guided by the legal

framework we have developed, it is not bound by any hard-

and-fast “special rule.” The BIA is permitted to weigh

evidence differently than we might, such as by giving more

weight to one aspect of a petitioner’s testimony or

experiences than to another. See id. at 1678. And the agency

retains broad discretion to weigh the “persuasiveness and

legal sufficiency” of facts in the record. Id. at 1681.

Therefore, when the BIA determines that the full picture

offered by the alien is not so severe as to amount to

persecution, we must defer to this conclusion unless it is

such an extreme outlier among our precedents that it cannot

be reasonably reconciled with them. See Duran-Rodriguez,

918 F.3d at 1028.

40 SINGH V. GARLAND

II

In this case, our precedent does not establish that any

reasonable fact-finder would be compelled to overturn the

BIA’s conclusion that Shamsher Singh failed to carry his

burden of proving the treatment he suffered in India rose to

the level of persecution. See Khourassany v. INS, 208 F.3d

1096, 1100 (9th Cir. 2000); see also 8 U.S.C.

§ 1252(b)(4)(B).

The BIA considered the following evidence in the

record. Singh testified that his brother, Harpreet, joined the

Mann Party in December 2016. Members of the Congress

Party attacked Harpreet twice, in April 2017 and August

2017, causing him “some internal injuries.” 3 Harpreet then

fled to the Untied States. In 2017, members of the Congress

Party asked Singh where his older brother was and told him

that he and his brother should join the Congress Party.

Singh was beaten twice. The first time, four men

punched and kicked him and he suffered “pain in [his]

stomach.” His mother gave him herbal remedies, and he

sought no further medical treatment. The second time, five

men beat him with hockey sticks, told him that they were

going to kill him “now,” and stopped their attack only after

nearby farmers arrived. Singh suffered “small bruises,

scratches, blue marks and some part of swollen body.” A

village doctor gave him pain medication and bandages and

advised him to rest in bed. Attackers beat Singh’s brother

3

The majority states that Singh testified that he suffered “serious internal

injuries,” Maj. at 10, but cites no basis in the record for calling them

“serious.” Cf. Elias-Zacarias, 502 U.S. at 816 n. 2 (criticizing the dissent

for misdescribing the record to enhance the “‘well foundedness’ of

whatever fear [the alien] possesses, by progressively transforming his

testimony”).

SINGH V. GARLAND 41

for the same political involvement. Finally, a Mann Party

member represented that there is ongoing violence against

members of Singh’s political group in the relevant region.

The BIA determined that “considering all of the harm

that [Singh] experienced cumulatively in the totality of the

circumstances,” including the lack of any serious physical

injuries, Singh “has not demonstrated that the harm he

experienced rises to the level of persecution.” In reaching

this conclusion, the BIA cited Ninth Circuit cases upholding

the agency’s finding of no past persecution in analogous

circumstances.

The BIA’s determination was not so far outside a

reasonable interpretation of our precedent as to compel a

different conclusion. First, as the majority acknowledges,

Maj. at 23, there is no precedent directly on point. Rather,

our precedents describe a range of situations that include

some but not all of Singh’s experiences, and which resulted

in differing decisions, some upholding and some reversing

the BIA’s determination. 4

4

The concurrence states that we do not defer “to an agency’s

interpretation of judicial precedent,” relying on several D.C. Circuit

opinions. Concur. at 32–33. One rejected an agency order under the

arbitrary and capricious standard, SFPP, L.P. v. FERC, 967 F.3d 788,

795 (D.C. Cir. 2020), cert. dismissed, 141 S. Ct. 2170 (2021), making it

irrelevant to this case. The others, stating that courts are not obligated to

defer to agency interpretations of judicial decisions, Univ. of Great Falls

v. NLRB, 278 F.3d 1335, 1341 (D.C. Cir. 2002); Akins v. FEC, 101 F.3d

731, 740 (D.C. Cir. 1996) (en banc), vacated on other grounds, 524 US.

11 (1998), are equally inapt. The BIA is not interpreting our precedent

here. Rather, it is making a fact-specific determination of whether the

actions in this case rise to the level of “persecution” under the INA.

Under the substantial evidence standard, which is applicable in this

context, we must uphold this determination unless our precedent would

42 SINGH V. GARLAND

We have upheld the BIA’s finding of no past persecution

in cases involving treatment that was in some ways more

severe than that alleged by Singh. In Prasad v. INS, 47 F.3d

336 (9th Cir. 1995), the petitioner was “taken to a police

station,” “placed in a jail cell,” “hit on his stomach and

kicked from behind,” and threatened with being arrested and

beaten again. 47 F.3d at 339. In Duran-Rodriguez v. Barr,

the petitioner was threatened with death twice in two days.

918 F.3d at 1028–29. In Halim v. Holder, 590 F.3d 971(9th

Cir. 2009), the petitioner was variously stripped naked, spat

on and threatened, refused service at a health clinic, falsely

arrested by police, and beaten by a mob of rioters over the

course of roughly ten years. 590 F.3d.at 975–76. In Gu v.

Gonzales, 454 F.3d 1014 (9th Cir. 2006), the petitioner was

imprisoned by police for three days and beaten with a rod.

454 F.3d at 1018. In Hoxha v. Ashcroft, 319 F.3d 1179 (9th

Cir. 2003), the petitioner suffered “extensive facial bruises

and two broken ribs” and was threatened with death. 319

F.3d at 1181. In Lim v. INS, 224 F.3d 929 (9th Cir. 2000),

the petitioner received a long series of death threats over the

course of several years, and three of his colleagues were

murdered. 224 F.3d 929 at 932–35. In Sharma, police

officers “beat” and “slapped” the petitioner, “apparently

with a baton,” and held him in a room where they “beat[ ],

compel any reasonable adjudicator to conclude the contrary. See 8

U.S.C. § 1252(b)(4)(B). Contrary to the concurrence, Concur. at 32, we

review the BIA’s determination as to whether facts in the record meet

the standard set forth in the INA under the substantial evidence standard.

See, e.g., Elias-Zacarias, 502 U.S. at 481 n.1 (instructing that to reverse

a BIA finding that a petitioner has not been persecuted on account of his

political opinion a court “must find that the evidence not only supports”

a conclusion that the petitioner’s refusal to join a guerilla group

constituted the statement of a political opinion “but compels it”).

SINGH V. GARLAND 43

slap[ped], and shove[d] him throughout the night.” 9 F.4th

at 1063 (alterations in original). Based on this guidance, the

BIA could reasonably conclude that Singh’s treatment,

which was not as severe as some of these examples, did not

constitute persecution.

The majority argues that we may not rely on these

opinions, however, because there are facts in each of these

cases that make them distinguishable from the situation in

Singh’s case. Maj. at 21. For example, the majority

contends that Hoxha’s severe beating and death threat were

offset by the fact that the beating itself “was not connected

with any particular threat” and his attackers did not appear

to know him. Maj. at 22. See Hoxha, 319 F.3d at 1182. And

the majority brushes off Gu’s three days of imprisonment

and violent interrogation at the hands of police as ‘one brief’

episode. Maj. at 23. See Gu, 454 F.3d at 1020–21. Of

course, there will always be factual distinctions between

different cases, such as the number of assaults, the precise

context of those assaults, the presence and severity of

threats, and the span of time over which the mistreatment

took place. But such distinctions do not make those

precedents irrelevant or make it unreasonable for the BIA to

rely on them along with other precedents. Nor is it

disqualifying that “[n]one of these cases involve multiple

instances of physical violence coupled with a death threat,”

a point emphasized by the majority, Maj. at 21. Indeed, to

the extent the majority is suggesting that two violent

instances and a death threat constitute persecution as a

matter of law, it is antithetical to our “carefully

circumscribed” role. Ming Dai, 141 S. Ct. at 1677. The INA

does not define “persecution,” and this inquiry “is not

reducible to a set formula.” Sharma, 9 F.4th at 1061; see

also Singh, 134 F.3d at 967–68. Such a rule would be

44 SINGH V. GARLAND

exactly the kind of “embellishment” we may not impose on

the BIA. Ming Dai, 141 S. Ct. at 1677.

By the same token, the two precedents on which the

majority most heavily relies are equally distinguishable from

Singh’s case. See Aden v. Wilkinson, 989 F.3d 1973 (9th Cir.

2021); Flores Molina, 37 F.4th 626. But the majority fails

to acknowledge this fact. Instead, once it turns to these

favorable precedents, its approach changes dramatically. In

its new posture, the majority emphasizes only details that it

portrays as similar or less severe than Singh’s case, and it

glosses over every detail that is plainly more severe.

In Aden, the applicant for asylum testified that men

ordered Aden and his brother to shut down their movie

theater, raided the theater with guns, struck the petitioner in

the head with the butt of a rifle “causing him to bleed

profusely,” and stole the theater’s equipment. 989 F.3d at

1077. On a later occasion, the men beat Aden and his brother

with wooden sticks and robbed them. Id. at 1078. On a third

occasion, two men with guns threatened to kill Aden and

robbed him. Id. Two weeks later, a man called Aden’s

brother and warned him that if he reopened the theater, both

brothers would be killed. Id. at 1077–78. The majority

grasps at the similarities between Aden and Singh’s case,

such as the fact that the assailants in both cases targeted the

victims and followed them from location to location. But the

majority ignores the distinctions between these cases. The

incidents in Aden were more severe than in Singh’s case,

because Aden was attacked, robbed, or threatened with death

on four occasions, as opposed to Singh’s two. Moreover,

Aden bled profusely from the head when struck with a rifle

butt, which is more severe than the “small bruises” and other

injuries Singh sustained.

SINGH V. GARLAND 45

In Flores Molina, assailants including government

operatives and government-aligned paramilitary members,

came to Flores-Molina’s home with assault rifles. 37 F.4th

at 631. The assailants doggedly pursued Flores-Molina to

his home and to two subsequent hiding places, threatening

or assaulting him each time. Id. Further, Flores Molina was

subjected to a long series of detailed public threats posted

publicly to the internet by government operatives and sent to

him directly via WhatsApp. Id. These threats escalated and

culminated in two death threats. The threat “Bullets to

Strikers” was painted on his house, and “at the next

encounter” the assailants stated “we’re going to kill you”

during a beating. Id. at 630–31. This beating caused Flores

Molina to lose a tooth and left scarring on his lip. Id. at 631.

Flores Molina sought medical attention at a hospital, but the

entrance was blocked by police and paramilitary members,

and he was unable to enter. Id. Finally, Flores Molina

participated in protests where “police and paramilitary

members regularly shot at, wounded and killed

demonstrators.” Id. at 630. He witnessed assailants

murdering his friend at a demonstration. The country

conditions reports showed that between April and July 2018,

“it was estimated that over 300 protestors [aligned with

Flores Molina] were killed by the police and government

operatives.” Id.

Again, the majority notes the similarities to Singh’s case:

neither alien suffered life-threatening physical injuries. But

again, the majority ignores important distinctions. The

incidents in Flores Molina were more severe than those

reported by Singh, in that Singh received far fewer threats

overall, and he received only a single death threat, rather

than two. The assailants who threatened Singh were not

government operatives, and their only weapons were hockey

46 SINGH V. GARLAND

sticks, as opposed to assault rifles. Singh was never

confronted or threatened by a government operative or with

a gun. And unlike Flores Molina, Singh suffered no lasting

injuries. Finally, the turmoil in Singh’s country (India) was

less severe than that in Flores-Molina’s country (Nicaragua).

Singh alleged that his brother was attacked by members of

the Congress Party, and a Mann Party representative stated

that the government had injured, jailed and killed Sikhs in

2015. In Flores Molina, by contrast, the police and

government operatives had recently killed hundreds of

protestors aligned with Flores Molina in the previous year,

including at protests Flores Molina attended. 37 F.4th at

630–31.

This is not to say that Aden and Flores Molina are

irrelevant; they likewise provide guidance in reviewing the

BIA’s opinion. But neither do they resolve the question

whether the incidents described by Singh amount to

persecution. Rather, reasonable minds could differ as to how

our full body of precedents apply in this case. Our task is

merely to determine whether the BIA’s decision is so

contrary to our case law that no reasonable factfinder could

have reached the same conclusion; we do not have the

authority to decide the case in the first instance, as if we were

directly applying our case law to the facts at hand.

Moreover, we must respect the BIA’s process of giving

meaning to the term “persecution” through its case-by-case

adjudication. Cardoza-Fonseca, 480 U.S. at 448. The

majority therefore errs in weighing the similarities and

differences between our precedents in this case and “giv[ing]

SINGH V. GARLAND 47

conclusive weight” to any fact that “cuts against the

agency’s finding.” Ming Dai, 141 S. Ct. at 1678. 5

In short, the only question before us is whether the BIA’s

determination that Singh did not suffer persecution compels

any reasonable factfinder to disagree, and “to conclude that

the requisite fear of persecution existed.” Elias-Zacarias,

502 U.S. at 481. Because the BIA’s determination here

“qualifies as one of potentially many reasonable

possibilities” for deciding this issue, Ming Dai, 141 S. Ct. at

1678, I would deny the petition. For these reasons, I dissent.

5

The concurrence commits the same error. It concedes that Aden and

Flores Molina are factually distinguishable from this case, but reasons

that these factual differences do not matter because “those cases and this

one involve fundamentally the same story.” Concur. at 34. But the

concurrence fails to discuss other precedents where we upheld the

agency’s finding of no persecution. See supra at 10–11. For

instance, Hoxha and this case could also be said to “involve

fundamentally the same story.” In Hoxha, the alien was threatened

(including with a death threat) and suffered physical violence. See

Hoxha, 319 F.3d at 1181. Like the majority, the concurrence ignores

similarities in cases that upheld the agency while focusing on similarities

in cases that reversed the agency. Neither the majority nor the

concurrence justifies this inconsistent approach to our precedents.