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SINGH v. BARR (2019)

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United States Court of Appeals, Second Circuit.

Gupreet SINGH, Petitioner, v. William P. BARR, United States Attorney General, Respondent.


Decided: March 15, 2019

PRESENT: ROBERT A. KATZMANN, Chief Judge, CHRISTOPHER F. DRONEY, RICHARD J. SULLIVAN, Circuit Judges. FOR PETITIONER: Dalbir Singh, New York, NY. FOR RESPONDENT: Chad A. Readler, Principal Deputy Assistant Attorney General; John S. Hogan, Assistant Director; Lindsay Corliss, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.


Petitioner Gupreet Singh, a native and citizen of India, seeks review of a December 2, 2016, decision of the BIA affirming a January 5, 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 Gupreet Singh, No. A XXX XX2 159 (B.I.A. Dec. 2, 2016), aff'g No. A XXX XX2 159 (Immig. Ct. N.Y. City Jan. 5, 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 both the BIA's and IJ's decisions “for the sake of completeness.” Wangchuck v. Dep't of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); Lecaj v. Holder, 616 F.3d 111, 114 (2d Cir. 2010).

To show eligibility for asylum, an applicant must establish past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1101(a)(42). Here, because the IJ concluded that Singh established past persecution, he was entitled to a presumption of “a well-founded fear of persecution on the basis of the original claim.” 8 C.F.R. § 1208.13(b)(1). It is the government's burden to overcome that presumption, which it can do by establishing by a preponderance of the evidence that “the applicant could avoid persecution by relocating to another part of the applicant's country of nationality ․ if under all the circumstances it would be reasonable to expect the applicant to do so.” 8 C.F.R. § 1208.13(b)(2)(ii); Kone v. Holder, 596 F.3d 141, 147 (2d Cir. 2010). In determining whether internal relocation would be reasonable, an IJ can “consider ․ whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties.” 8 C.F.R. § 1208.13(b)(3).

Here, the government failed to produce any evidence to support a relocation finding. The IJ's decision was therefore based almost entirely on evidence outside of the record of which it took administrative notice. However, the IJ did not cite any sources for these findings. See, e.g., CAR at 41 (taking “administrative notice of the fact that the Congress Party no longer controls certain localities within India,” but citing no source). We cannot review the IJ's decision if we do not know the evidence on which it relied. See Xiao Kui Lin v. Mukasey, 553 F.3d 217, 221-22 (2d Cir. 2009) (“The BIA's failure to cite any support for its determination of Chinese national policy prevents this finding from serving as a valid basis for its decision.”). Cf. Shao v. Mukasey, 546 F.3d 138, 167 (2d Cir. 2008) (absent notice and opportunity to be heard, denying relief based solely on judicially noticed facts not in the State Department's most recent report violates due process).

Our review is limited to the administrative record, see 8 U.S.C. § 1252(b)(4)(A), and there is no evidence in the record to confirm the IJ's findings. Accordingly, the petition for review is GRANTED, the BIA's decision is VACATED, and the case is REMANDED for further development of the record on these points.

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