SINGH v. BARR (2019)

SUMMARY ORDER

Petitioner Amandeep Singh, a native and citizen of India, seeks review of a July 19, 2017, decision of the BIA affirming a September 26, 2016, decision of an Immigration Judge (“IJ”) denying Singh's application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Amandeep Singh, No. AXXX XXX XXX (B.I.A. July 19, 2017), aff'g No. AXXX XXX XXX (Immig. Ct. N.Y. City Sep. 26, 2016). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, we have reviewed the IJ's decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Because the BIA assumed credibility, we make the same assumption. See Yan Chen v. Gonzales, 417 F.3d 268, 271-72 (2d Cir. 2005). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). Singh alleged past persecution and a fear of future persecution based on his membership in the Akali Dal Mann political party (“Mann Party”).

Past Persecution

A valid past persecution claim can be based on harm other than threats to life or freedom, including “non-life-threatening violence and physical abuse,” Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006), but the harm must be sufficiently severe, rising above “mere harassment,” Ivanishvili v. U.S. Dep't of Justice, 433 F.3d 332, 341 (2d Cir. 2006). In evaluating past persecution, the agency must consider the harm suffered in the aggregate. Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005).

The BIA erred in its analysis of whether Singh's past harm rose to the level of persecution. The BIA determined that because Singh was attacked only twice by Congress Party members and did not need serious medical attention, the harm did not rise to the level of persecution. However, there is no requirement that an applicant require serious medical treatment for past physical abuse to constitute persecution. See Edimo-Doualla v. Gonzales, 464 F.3d 276, 283 (2d Cir. 2006). Moreover, “non-life-threatening violence and physical abuse,” can constitute persecution. Beskovic, 467 F.3d at 226 n.3; see also Ivanishvili, 433 F.3d at 342 (Evidence that an alien has suffered “physical abuse and violence ․ may preclude a finding that the conduct is mere harassment that does not as a matter of law rise to the level of persecution, for violent conduct generally goes beyond the mere annoyance and distress that characterize harassment.” (internal citation omitted)).

Additionally, the BIA should have analyzed the context of the beatings. “ ‘[T]he difference between harassment and persecution is necessarily one of degree,’ ․ the degree must be assessed with regard to the context in which the mistreatment occurs.” Beskovic, 467 F.3d at 226 (quoting Ivanishvili, 433 F.3d at 341). The BIA discussed the medical treatment that Singh required as a result of the beatings but did not discuss the context of the beatings, e.g., that during the second beating, he was attacked by six individuals who threatened to kill him if he did not join the Congress Party. Additionally, it is unclear whether the BIA was making this finding in the first instance or mistakenly believed that the IJ had also found that Singh's harm did not rise to the level of persecution; the IJ did not make such a finding and instead based his past persecution analysis on the credibility determination that the BIA declined to reach. See Poradisova, 420 F.3d at 77 (“[W]e require a certain minimum level of analysis from the IJ and BIA opinions denying asylum, and indeed must require such if judicial review is to be meaningful.”). Accordingly, we remand to the agency so that it may further explain or reconsider whether Singh suffered past persecution. See Beskovic 467 F.3d at 227.

Well-Founded Fear of Future Persecution

Absent past persecution, an alien may establish eligibility for asylum by demonstrating a well-founded fear of future persecution, 8 C.F.R. § 1208.13(b)(2), which must be both credible and objectively reasonable, Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). To demonstrate a well-founded fear, an applicant must show either a reasonable possibility that he would be singled out for persecution or that the country of removal has a pattern or practice of persecuting individuals similarly situated to him. 8 C.F.R. § 1208.13(b)(2)(iii).

Even assuming that Singh's past harm did not rise to the level of persecution, the agency erred in its analysis of future harm. Although both the IJ and BIA stated that they were assuming credibility, they did not evaluate or credit the instances of past harm in determining whether Singh had an objectively reasonable fear of future persecution. Although the IJ stated that he was assuming credibility, he did not discuss Singh's past beatings and death threats, but instead stated that Singh's unsubstantiated testimony was entitled to little weight. The BIA also did not discuss Singh's testimony in analyzing whether he had a well-founded fear of future persecution and only discussed a State Department report. We have cautioned against placing “excessive reliance” on State Department reports and instructed “where a report suggests that, in general, an individual in the applicant's circumstances would not suffer or reasonably fear persecution in a particular country, the immigration court may consider that evidence, but it is obligated to consider also any contrary or countervailing evidence with which it is presented, as well as the particular circumstances of the applicant's case demonstrated by testimony and other evidence.” Tian-Yong Chen v. U.S. INS, 359 F.3d 121, 130 (2d Cir. 2004). The agency determined that the State Department Report did not show that regular members of the Mann Party were persecuted by the Congress Party. But because the agency stated that it was assuming that Singh was credible, it was required to consider Singh's testimony, which showed, contrary to the report, that regular members of his political party were targeted by the Congress Party. Id.

For the foregoing reasons, the petition for review is GRANTED, the BIA's decision is VACATED, and the case is REMANDED for further proceedings consistent with the order.