UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SIMRANJOT SINGH,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 22-794

Agency No.

A215-666-482

ORDER

Before: S.R. THOMAS, BRESS, and JOHNSTONE, Circuit Judges.

Judges S.R. Thomas and Johnstone have voted to amend the memorandum

disposition and to deny the petition for panel rehearing. Judge Bress has voted to

grant the petition for panel rehearing.

The memorandum disposition filed on December 11, 2023 is amended as

follows:

Delete the sentence reading: 

We therefore remand for the agency to reevaluate Singh’s asylum, 

withholding, and CAT claims to determine whether BJP members 

constitute government perpetrators under Kaur, and if so, whether the 

government rebutted the presumption of a nationwide threat under 

Whitaker.

FILED

FEB 28 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 22-794

Replace that sentence with the following: 

We therefore remand for the agency to reevaluate Singh’s asylum and

withholding claims to determine whether BJP members constitute

government perpetrators under Kaur, and if so, whether the government

rebutted the presumption of a nationwide threat under Whitaker. We

also remand to the BIA to reevaluate Singh’s CAT claim, including his

ability to relocate.

With the amendment, Respondent’s petition for panel rehearing is DENIED.

No future petitions will be entertained.
NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

SIMRANJOT SINGH,

Petitioner,

 v.

MERRICK B. GARLAND, Attorney

General,

Respondent.

No. 22-794

Agency No. A215-666-482

AMENDED

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted December 6, 2023**

San Francisco, California

Before: S.R. THOMAS, BRESS, and JOHNSTONE, Circuit Judges.

 

Dissent by Judge BRESS.

Petitioner Simranjot Singh, a native and citizen of India, petitions for review

of a decision by the Board of Immigration Appeals (“the BIA”) affirming the

Immigration Judge’s denial of asylum, withholding, and protection under the

FILED

FEB 28 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
Convention Against Torture (“CAT”) and denying Singh’s motion to reopen for

consideration of new evidence. We have jurisdiction under 8 U.S.C. § 1252(a). 

As the parties are familiar with the facts, we do not recount them here. We grant

the petition and remand as to asylum, withholding, and protection under the CAT,

and deny the petition as to the motion to reopen. 

We review factual findings for substantial evidence and questions of law de

novo. Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016). Where, as here,

the BIA “has reviewed the IJ’s decision and incorporated portions of it as its own,

we treat the incorporated parts of the IJ’s decision as the BIA’s.” Molina-Estrada

v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002) (as amended). We review the BIA’s

denial of a motion to reopen for abuse of discretion. Tzompantzi-Salazar v.

Garland, 32 F.4th 696, 702 (9th Cir. 2022). 

I

The BIA’s denials of asylum, withholding, and CAT protection each relied

on its determination that Singh—although a victim of past political persecution at

the hands of Bharatiya Janata Party (“BJP”) members—could safely relocate to an

area of India not controlled by the BJP, such as Delhi. As the BJP is the ruling

party of India’s national government, the BIA erred in failing to consider whether

Singh was entitled to a presumption of a nationwide threat of persecution. 

2
“[W]hen a petitioner suffers persecution at the hands of a major political

party . . . the source of the persecution is the government itself.” Kaur v.

Wilkinson, 986 F.3d 1216, 1228 (9th Cir. 2021). And “where the applicant has

established a well-founded fear of future persecution at the hands of the

government, a rebuttable presumption arises that the threat exists nationwide.”

Singh v. Whitaker, 914 F.3d 654, 661 (9th Cir. 2019) (quoting Melkonian v.

Ashcroft, 320 F.3d 1061, 1070 (9th Cir. 2003)); see also 8 C.F.R. §

1208.13(b)(3)(ii) . 

Here, the BIA did not consider that the BJP controls India’s national

government or apply the presumption of a nationwide threat. On the contrary, the

BIA adopted the IJ’s findings that “Delhi is not controlled by the BJP.” Had the

BIA considered the nationwide presumption, the BIA would have needed to

consider that the BJP “is the nation’s government” and that “[i]t has never been

thought that there are safe places within a nation when it is the nation’s

government that has engaged in the acts of punishing opinion that have driven the

victim to leave the country.” Singh v. Moschorak, 53 F.3d 1031, 1034 (9th Cir.

1995). Although the BIA did apply the presumption of a well-founded fear of

persecution, that presumption is no substitute for the presumption of nationwide

persecution. Whitaker, 914 F.3d at 661 (remanding where “[t]he BIA failed to

3
apply that nationwide presumption to Singh’s asylum claim, even though it

correctly afforded him the presumption of a well-founded fear of persecution”);

Melkonian, 320 F.3d at 1070 (distinguishing between the two presumptions).

We therefore remand for the agency to reevaluate Singh's asylum and

withholding claims to determine whether BJP members constitute government

perpetrators under Kaur, and if so, whether the government rebutted the

presumption of a nationwide threat under Whitaker. We also remand to the BIA to

reevaluate Singh's CAT claim, including his ability to relocate.

II 

The BIA did not abuse its discretion by denying Singh’s motion to reopen. 

The new evidence presented by Singh was not material because Singh’s claim rests

on his persecution as a Mann Party member, and the new evidence did not relate to

persecution against Mann Party members. See Tzompantzi-Salazar, 32 F.4th at

703 (“[T]he agency may deny a motion to reopen if . . . the petitioner failed to

introduce previously unavailable material evidence.”) Accordingly, Singh’s

petition is denied as to the motion to reopen.

PETITION GRANTED IN PART, DENIED IN PART, REMANDED.

4
1 

Singh v. Garland, 22-794

BRESS, Circuit Judge, dissenting.

I respectfully dissent from the decision to grant the petition for review as to 

the asylum, withholding of removal, and CAT claims. I would deny the petition in 

full. 

Substantial evidence supports the denial of asylum and withholding of 

removal. Having found that the petitioner demonstrated past persecution, the BIA 

properly afforded the petitioner a rebuttable presumption of future persecution. 

Following our direction in Singh v. Whitaker, 914 F.3d 654 (9th Cir. 2019), the BIA 

conducted “a reasoned analysis with respect to [the] petitioner’s individualized 

situation,” id. at 661, and determined that the government rebutted the presumption

by showing that Singh could safely and reasonably relocate within India to an area 

like Delhi. See 8 C.F.R. § 1208.13(b)(1)(i)(B) (2018).

As part of its relocation analysis, the BIA considered and rejected the 

possibility that the petitioner would face a risk of future persecution because the BJP 

was a part of the national government. Citing the IJ’s reasoning, the BIA explained 

that petitioner “is not a high-profile militant of the Mann Party, and . . . his proKhalistani views would not make him of interest to government authorities.” And 

the BIA specifically rejected the petitioner’s assertion “that the Immigration Judge 

did not consider the risk that he faces from the ruling BJP party.” At the end of its 

FILED

FEB 28 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

analysis, the BIA cited 8 C.F.R § 1208.13(b)(3)(ii), the very provision the petitioner 

argues the agency ignored by failing to address his concern that the BJP is part of 

the national government. Because the BIA properly afforded the petitioner the 

presumption of future persecution by the BJP upon relocation, this case is unlike 

Singh v. Whitaker, in which the BIA only considered whether authorities in Punjab 

would pursue the petitioner to a new location. 914 F.3d at 661.

Likewise, the BIA’s analysis was consistent with Kaur v. Wilkinson, 986 F.3d 

1216 (9th Cir. 2021). The BIA did what we directed it to do in that case: “conduct 

a thorough, individualized analysis of [the petitioner’s] ability to relocate internally, 

placing the burden on the government as required under Singh.” Id. at 1231. The 

rest of Kaur, including its direction about what constitutes “the government” for 

purposes of a past persecution analysis, is not relevant here, because the BIA treated

the petitioner as having established past persecution. 

Substantial evidence also supports the BIA’s denial of CAT relief because 

Singh failed to show it is “more likely than not” that he would be tortured if returned 

to India. Vitug v. Holder, 723 F.3d 1056, 1066 (9th Cir. 2013). Singh has not alleged 

any past harm rising to the level of torture. See Sharma v. Garland, 9 F.4th 1052, 

1067 (9th Cir. 2021). Nor has Singh demonstrated a likelihood of future torture, 

especially considering his ability to safely relocate within India. The evidence thus 
3

“does not compel the conclusion” that Singh will more likely than not be tortured if 

removed to India. Tamang v. Holder, 598 F.3d 1083, 1095 (9th Cir. 2010). 

I therefore respectfully dissent from the grant of the petition as to the asylum, 

withholding of removal, and CAT claims.