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versus Garland.

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It's number 239589 and counsel you may proceed.

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Good morning, Your Honors.

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May it please the Court?

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My name is Saad Ahmed and I represent the petitioner Mr. Amarjeet Singh in this petition for review from a decision of the Board of Immigration Appeals in which the Board affirmed the immigration judge's decision to deny Mr. Singh's asylum and the holding of removal application on the sole ground that Mr. Singh failed to demonstrate that the Indian government would be unable and unwilling to protect him from private persecutors.

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This petition for review should be granted because the immigration judge whose decision was affirmed and adopted by the board made an incorrect analysis of this Unable and Unwilling to Control finding.

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When the court determines whether a country has the ability or willingness to protect its citizens,

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The court looks at two types of evidence generally.

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It looks at the country's response to private persecution, and then it also looks at general country conditions.

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In this case, the immigration judge held that Mr. Singh was adequately protected by the Indian government, and therefore he had reason to believe that he will be adequately protected in the future.

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And the basis of that decision was that the corrupt police officers who framed Mr. Singh in a fabricated case were dismissed from their posts and also Mr. Singh was acquitted.

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That was the extent of immigration judges unable and unwilling to control finding.

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But those two things were not related, were they?

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That's correct, Your Honor.

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They were not related.

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The officers were dismissed in an unrelated case.

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This was not Mr Singh's case.

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And Mr Singh was acquitted because the prosecutor failed to meet his burden of proof.

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It was not because of corruption.

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So those facts had nothing to do with whether the Indian government would be able to protect Mr Singh from crime and harm.

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In this case, there was no evidence whatsoever offered by the immigration judge that

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established that there was a reasonable ground to believe that Mr. Singh would be protected by the Indian government.

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What's our standard of review in terms of whether we agree or disagree with the determination that the Indian government was willing to protect?

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Well, Your Honor, for factual findings, it's substantial evidence, and for legal findings, it's de novo review.

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And with respect to factual findings, the court must affirm the immigration judge's finding if the record was inconclusive or the record was mixed and the judge made a reasonable inference.

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In this case, the judge made factual errors, mischaracterized the evidence, failed to explain his decision in a discernible way for this court to be able to review it.

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And therefore we believe that immigration judges' decision cannot stand on this ground.

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Who had the burden of demonstrating unwilling or unable to protect?

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The applicant has the burden to show that the government of a country cannot protect him from private harm, private persecutors.

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And in this case, Mr. Singh had the burden.

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In this case,

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Mr Singh feared harm from the opposition parties.

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He was not fearing harm from the police.

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So whether the police officers were dismissed and he was acquitted had no relevance to whether the Indian government could protect him.

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If anything, that only showed that perhaps if someone was framed in India on a false charge, that the criminal justice systems may be able to protect him.

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I thought he did also testify he was afraid of the police because the reason he didn't go back the second day after the second physical assault was because he was, in part, because he was afraid.

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And so, I mean, he was afraid of both, wasn't he?

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Yes.

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Well, his main problem was with the opposition party.

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He was afraid to go to the police because they illegally arrested him

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They fabricated a criminal charge against him.

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They tortured him.

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So he was reluctant to go back to the police.

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And the State Department reports, which are part of the administrative record, establish that there's widespread corruption in India within the police forces, lack of accountability.

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There is, you know, prosecutions are very low, in part because there's lack of trained police officers.

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and therefore the country condition evidence, which the immigration judge completely ignored.

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I mean, the immigration judge said that India is a democracy and holds fair elections, but it has nothing to do with this situation.

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A country's ability to protect its citizens from private harm has to be based on the specific facts of the case.

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Now, in cases where this court and other courts of appeals

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have found substantial evidence in the record to affirm the agency's finding is when the authorities tried to investigate, even if they failed or if the record was inconclusive.

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And then in those type of situations, the court can affirm the judge's finding, but not in this case, Your Honors.

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What are the legal disputes that you're raising that you want us to review de novo?

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Well, Your Honor, we believe that the immigration judge's decision also indicates that he did not properly apply this standard as a second argument because I believe that he stopped.

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He said that it would not be futile or Indian government would be completely helpless in controlling private persecution.

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The unable and unwilling to control is a two-pronged analysis.

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A country may be willing to protect its citizens from private harm, but may be unable to do so.

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So we believe that that's also a legal error.

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What exactly was the legal error?

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That the judge treated it as though it's conjunctive instead of disjunctive?

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Is that what you're saying?

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Yes.

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Yes, Your Honor.

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We believe that judge

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just stopped.

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The judge never considered country condition reports that explained that it's almost impossible.

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I mean, the country condition reports paint a horrific picture.

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What do you mean didn't consider?

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Do you mean was unaware of or didn't give enough credence in your opinion?

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Your Honor, we believe that he did not give enough credence to that in the decision because his decision does not really reflect

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that he gave enough reasoning for this court.

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Your Honor, could I just make sure I'm understanding your legal argument again.

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I took from your brief that you were arguing that the BIA committed legal error because it considered whether the government was unwilling but did not consider whether it was unable.

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Now, am I understanding that correctly?

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That is one of our arguments.

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We believe that that is the legal error because immigration judges looked at the alleged willingness of the Indian government at the highest authorities to maybe read corruption.

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But there's no evidence that they're successfully able to do that.

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And just to make sure we're clear on the scope of your argument this morning,

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You're not contending that there was error by the BIA in failing to find government persecution.

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You're limiting this to whether the government was willing and able to... That's correct, Your Honor.

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That's correct.

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Thank you.

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Your Honor, the immigration judge unreasonably

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unreasonably decided that Mr. Singh should have reported to the police the second time he was attacked by the opposition parties, even though there is no requirement in the analysis with respect to this issue.

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You're not required to report to the police if it would be futile or it would expose you to more harm or danger your life.

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Basically, immigration judge failed to conduct a holistic

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analysis of the record, which is the standard.

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Immigration just stopped on the first step of the analysis, which is, okay, there's evidence that the police, I'm sorry, the authorities were willing to protect Mr. Singh, but not the second part of the analysis.

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And we believe that this one-dimensional analysis cannot stand in this.

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And we believe that's why this court should reverse.

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failure to report the 2017 attack.

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In other words, he went to the police.

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They said, come back the next day.

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He doesn't come back.

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And when he doesn't come back, it seems to me that you have to rely on a futility argument, because if he doesn't report, how is the government supposed to protect him, right?

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So it comes down to futility.

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Yes.

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All right.

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And what's your best evidence on that?

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Well, the country condition reports paint a horrific picture.

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Corruption, lack of management.

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Even if he managed, even if Mr. Singh had managed to report, it's highly unlikely that the police would have done anything to protect him from private parties.

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And one of, in the unable and unwilling to control analysis, one fact that is very important is

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how quickly the authorities protect someone.

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Unable and unwilling to protect does not mean that maybe at some future time, Mr. Singh or someone who fears private harm would be protected.

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It is at the time how quickly, because they may not be, excuse me, I'm sorry.

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And therefore, we believe that this case should be remanded to the board for a correct analysis.

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of the record under the ordinary remand rule.

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This court cannot engage in fact finding or decide an issue in the first instance.

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So we believe that the board should decide this issue in the first instance.

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Can you point me to what in the country report you're relying on in terms of the horrific conditions and indication that the country was unwilling to or unable to protect Mr. Singh?

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Yes, Your Honor.

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If you look at Administrative Record 271, it clearly says lack of accountability, police corruption, impunity from any legal action, overburdened court system.

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That is a very strong evidence when the judge never even mentioned this evidence in the decision.

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And when the judge does not mention dispositive or potentially dispositive evidence, that indicates that immigration judge did not consider it.

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While immigration judge does not have to mention every piece of evidence, but there has to be some indication that he considered the evidence.

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In this case, the country condition evidence that the judge considered was irrelevant.

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to the finding that the Indian government was able and willing to protect Mr. Singh.

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Was the information put before the immigration judge?

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Yes, Your Honor.

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And was it argued?

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Your Honor, it was argued by counsel at the trial.

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So we know for a fact that the immigration judge at least knew about it.

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Yes, Your Honor.

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It was part of the administrative record.

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And immigration judges are not Article III judges.

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They're administrative law judges.

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And their job is not just to, their job is to review the record, even if it was not presented by counsel.

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But in this case, the Department of State reports were part of the administrative record.

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So what would have been satisfactory then from the immigration judge that you would say would have met the standard you're requiring today?

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Well, if the immigration judge had said that, well, the country condition reports are not very

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you know, are not very favorable.

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It seems that there's a lot of corruption.

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On the other hand, let's see if the facts were different.

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Let's say Mr. Singh's beating had been investigated by the police and by the authorities.

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I think this would be a different case altogether.

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Because then the judge would say, okay, there's evidence on the record that shows that the police tried to protect him, authorities tried to protect him, and the record is mixed.

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So that's what it comes down to.

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that when the record is mixed, judge can make reasonable inferences.

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But in this case, the record was not mixed.

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The record clearly showed that the immigration judge failed to consider all the evidence and that the facts that he did consider were irrelevant to this case.

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And just to be sure, you're not pursuing the withholding of removal or the CAD claims?

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You're not pursuing withholding because

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the burden of proof or the standard of proof in withholding is higher than asylum.

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So if he succeeds on the asylum case, or if he doesn't succeed on the asylum case, he wouldn't meet the burden for withholding.

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Thank you.

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Thank you, Your Honor.

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Thank you.

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Good morning, Your Honors, and may it please the court, Cory Farrell on behalf of the government.

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The only issue before the court is whether the record compels reversal of the determination that petitioner failed to meet his burden of proving the Indian government is unable or unwilling to protect him.

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Petitioner has not shown that no reasonable fact finder could have found as the agency did.

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Were the government authorities previously acted against corrupt officials?

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Could I just ask you why is that the only issue?

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Because counsel told us that he has a legal objection to and it seems you've opened with the substantial evidence issue.

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So don't you need to address the legal issue argument too?

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The government's position is that petitioner is disputing the immigration judge's weighing of the evidence.

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And the immigration judge fully considered the evidence.

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You left off discussing the country conditions evidence.

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And I'd just like to point to page 99 of the administrative record, the paragraph that starts, country conditions report state that India is a democracy and holds free

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fair and free elections.

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And then the immigration judge goes on to acknowledge that there are major issues with corruption in the Indian police forces.

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So the immigration judge did consider the country conditions.

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But what the immigration judge then did is the immigration judge said, but here they prosecuted the police officers who trumped up charges against Mr. Singh and they dismissed the charges.

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They're not related.

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The litigation against Mr. Singh went on for another three years after those officers were prosecuted for graft and corruption, and they were prosecuted for a totally different case.

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And that doesn't seem to be, the IJ doesn't seem to acknowledge that.

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That's correct, Your Honor, that it was a totally different case, and Petitioner testified

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Mr. Singh testified that he did not report the abuse that he suffered at the hands of police.

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The second time.

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Or the first time.

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He said that he informed his attorney, but he said no one reported it to authorities.

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So yes, it was a different case.

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The government authorities were not made aware of the harm he experienced at the hands of police in 2000.

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But the evidence

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against or showing that these police officers were removed, these corrupt police officers who did harm Mr. Singh, does show that the government is taking action against corrupt officials.

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Also in the State Department Human Rights Report at page 287, it's

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It acknowledges that corruption is a problem and then states that there were also cases of security officials held accountable for illegal actions.

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Also at page 287, the Human Rights Report states that authorities tried cases against law enforcement officers in public courts.

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At page 291, it discusses a judicial remedy in the form of public interest litigation

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which have made government officials accountable.

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So if you take this evidence and look at the specific facts of Mr. Singh's case and the actions that were taken there, it is reasonable for the immigration judge to conclude that there was evidence that the government was able and willing to protect him.

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Are you sure that the record supports that he didn't report the 2000 attack?

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I believe his testimony, there was a testimony about his discussion with his attorney.

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I could be mistaken, Your Honor, but I believe he said that he did not report that the 2000, not the 2000 attack by the opposition party members.

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I was referring to the harm at the hands of police.

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The police being that they would fabricate an account?

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Correct, and detained him.

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And allegedly tortured him?

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And allegedly tortured him, yes.

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Stretched his legs.

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And you're saying the record shows that he never reported any of those events to the government?

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I believe that's correct, Your Honor.

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I don't have the site in front of me.

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But there was a discussion with his attorney who he retained to fight the charges against him.

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How do you deal with the fact that it is the government that was carrying out these acts?

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So they would be complicit in the persecution of Mr. Singh.

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And I think it's important to remember, Your Honor, how Mr. Singh framed his asylum claim.

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Before the board, he talks about fear of these private actors and private harm.

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And before this court in several places, he references, he frames his claim as a fear of private actors and not government harm.

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But he also, he clearly also argues that he was afraid of the police and with good reason.

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After his experience in, I think, 2000, he didn't want to report to the police because he didn't want to be in three years of litigation or be tortured if he reported it.

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And Your Honor, he did say that he was scared of the police.

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Also, however, when asked why he didn't trust the police on page 158 of the administrative record, he said it was because of cases against opposition parties in the news, not because of his prior experiences.

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And while this past harm may be some evidence of why he was afraid to go to the police,

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The agency reasonably weighed that against the subsequent actions taken against corrupt officers, clearing of petitionary charges, and the country conditions evidence.

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And under the substantial evidence standard of review, when we're looking at facts, this court may not reweigh the facts.

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And we have case, this court has cases that talks about where the evidence is mixed, as it is in this case, that that does not compel reversal of the agency's decision.

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Was there any evidence that the police apprehended or attempted to apprehend the opposition party members who attacked Mr. Singh?

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And that would show willingness and ability.

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But is there anything in the record that that happened?

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No, Your Honor, there's not.

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And that's why then we go into this futility and the lack of knowledge about what the police would have done if he would have made a report.

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At this point, there's no evidence that the police were aware of his attacks by opposition party members.

[00:22:59] Speaker 04:
Well, the first one, the 2001 he reported.

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Yes, that's correct.

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Was there any attempt to go after those assailants?

[00:23:08] Speaker 03:
There's no evidence on the record whether there was or not.

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I was referring to the subsequent incidents in 2017.

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If the court has no further questions, for going reasons, the record is not compelled reversal of the immigration judge's decision.

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Thank you.

[00:23:32] Speaker 02:
Thank you, counsel.

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I don't believe you have time left, so we will consider the case submitted, and counsel