Singh v. Gonzales

MEMORANDUM ** Sijay Kumar Singh and his wife, Kalpana Krishma Singh, natives and citizens of Fiji, petition for review of the Board of Immigration Appeals’ (“BIA”) order affirming without opinion an immigration judge’s (“IJ”) decision denying their applications for asylum, withholding of removal and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252 . Reviewing for substantial evidence, Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir.2000), we grant the petition for review in part, deny it in part and remand for further proceedings. Where, as here, the IJ fails to make an explicit adverse credibility determination, we generally accept a petitioner’s testimony as true and proceed to review the record. See id. at 1114 . However, the IJ in this case was unclear as to whether the petitioners established past persecution and whether he applied a rebuttable presumption of a well-founded fear of persecution. Accordingly, we remand the matter to the BIA for clarification as to the petitioners’ asylum and withholding of removal claims. See Recinos De Leon v. Gonzales, 400 F.3d 1185, 1192-94 (9th Cir.2005). Substantial evidence supports the agency’s denial of CAT relief because the petitioners did not establish that it is more likely than not that they will be tortured if returned to Fiji. See Malhi v. INS, 336 F.3d 989, 993 (9th Cir.2003). *705 PETITION FOR REVIEW GRANTED in part; DENIED in part; REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.