Bhasin v. Gonzales
| Decision Date | 01 September 2005 |
| Docket Number | No. 03-73481.,03-73481. |
| Citation | 423 F.3d 977 |
| Parties | Usha BHASIN, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert B. Jobe, Esquire, San Francisco, CA, for the petitioner.
Victor M. Lawrence, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A77-424-778.
Before LAY,* B. FLETCHER, and HAWKINS, Circuit Judges.
Petitioner Usha Bhasin, a native and citizen of India, petitions for review of the Board of Immigration Appeals's ("the Board") denial of her motion to reopen her proceedings following its decision dismissing her appeal of the Immigration Judge's ("IJ") denial of applications for asylum and withholding of removal. Because we conclude that Bhasin established prima facie eligibility for withholding of removal through evidence not available at the time of the original hearing, and because the Board otherwise abused its discretion in denying the motion to reopen, we grant the petition for review and remand to the Board with instructions to either grant relief or to remand to the Immigration Judge for a hearing on the newly presented evidence. We also hold that it was error for the Board to deny the motion as a matter of discretion under the fugitive disentitlement doctrine.
Petitioner Bhasin appeared before an IJ on May 11, 1999, and provided testimony supplementing her application for asylum, together establishing the facts set forth below. Because neither the IJ nor the Board made any adverse credibility finding, we accept the petitioner's factual contentions as true. Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir.2004); Navas v. INS, 217 F.3d 646, 652, n. 3 (9th Cir.2000).
Usha Bhasin, a 63-year-old native and citizen of India, entered the United States on a B-1 non-immigrant visa on February 23, 1998, and applied for asylum and withholding of removal several months later. Her claims for relief are founded on her fears that she will be attacked and possibly killed by the Islamic militant group known as the "Jammu and Kashmir Liberation Front" ("JKLF"), because of her eldest son's role as a government "inspector" in the Border Security Force ("BSF"). Several members of her family have already disappeared, and she claims that this persecution is on account of membership in her familial social group.
Bhasin's son Yogesh Kumar joined the BSF in 1991 and was posted on the border with Pakistan in the state of Jammu and Kashmir in India. Petitioner joined him there and lived peacefully for many years. Bhasin testified that her son became "famous" for his arrests of many militants crossing the border from Pakistan, and thus became a target of the militant organizations. In particular, when he arrested a leader of the JKLF named Shabir Shah, the JKLF stepped up its search for Yogesh.
On the night of December 15, 1996, four armed men who identified themselves as members of the JKLF arrived at Bhasin's home, looking for Yogesh. When she informed them that she did not know where he was, they slapped her, forcibly kidnaped her, and took her to a small hut in the woods where they tied her to a tree and beat her severely. Bhasin testified that the men pulled out her hair and hit her with the butt of a gun, at which time she "passed out." She was held for four days, tied to a cot, during which time the men repeatedly asked her about the whereabouts of her son. She was told that because of the arrest of their leader, Shabir Shah, they were going to "eliminate each member of [Bhasin's] family." Eventually, she was released on the side of the road and some passers-by helped her to safety.
When she returned home, she discovered that her younger son, Pawan, was missing. He has yet to be found. Because of the threats made to her by the members of JKLF, Bhasin believes that her youngest son was abducted and likely killed by the JKLF. Soon after the disappearance of Pawan, Bhasin contacted the BSF, who in turn contacted Yogesh and directed him to return home. Out of safety concerns, the BSF decided to transfer Yogesh to another part of the Pakistani border. Bhasin then relocated to Delhi, south of Jammu and Kashmir.
Bhasin testified that after several months in Delhi, BSF officials visited her at her home and informed her that Yogesh had been missing for a week. In support of her asylum application, Bhasin submitted a letter she received from a BSF Commandant confirming that Yogesh was missing. Further investigation led to the conclusion that Yogesh and some other BSF agents had been captured or killed along the Pakistani border, likely by the JKLF, though no "concrete results" of the investigation were revealed.
A few months later, on November 28, 1997, two men knocked on Bhasin's door. When she asked who it was, they responded that they would not "spare" her, that they had already abducted her two sons, and that they would kill her. As Bhasin hid, the men threw a piece of paper at or through the door, fired shots in the air, and left. The note repeated that they had taken the sons, that one by one they would eliminate Bhasin's family, and that they would spare no one. Bhasin reported the incident to the BSF Commandant, but he told her that it was impossible to provide security for BSF families.
Frightened for her life, Bhasin left India and entered the United States on a B-1 visitor visa on February 23, 1998. At the time of the original hearing before the IJ, Bhasin reported that she spoke occasionally with her younger daughter on the phone, who reported that the neighbors had been asked by presumed JKLF agents about where Bhasin was. At that time, the younger daughter lived with Bhasin's brother, while her older daughter, Indu, was married and lived in the state of Uttar Pradesh, to the south of Delhi. Yogesh's wife was living in the state of Punjab with her parents.
The IJ found that Bhasin had established a well-founded fear of persecution,1 but denied eligibility for asylum and withholding because the persecution was not "on account of" one of the five enumerated grounds. Specifically, the IJ stated, "Here, respondent may have a well-founded fear of harm, but that harm stems from retribution threatened by the JKLF because of the actions taken by her son, Yogesh Kumar, in the arrest of JKLF leadership." The IJ specifically rejected Bhasin's claims that she had been persecuted on account of an imputed political opinion and on account of her membership in a particular social group, namely her family.
The Board affirmed. First, the Board did not specifically address whether Bhasin had established past persecution or a well-founded fear of future persecution, but obliquely stated, "Even accepting the truth of the testimony, the Immigration Judge was correct in holding that the respondent failed to prove persecution on account of" either protected ground. Specifically, the Board rejected Bhasin's claim that she had been persecuted on account of imputed political opinion because the "actions of the militants reflect a vendetta against the respondent's eldest son and not a belief that the respondent held certain political opinions." Similarly, the Board concluded that Bhasin had failed to establish persecution on account of membership in her family social group because the "respondent was victimized because the JKLF wanted to locate her son, and perhaps as a means of retribution against the son, but not on account of membership in a particular social group." The Board then made the following finding:
Moreover, other close members of the respondent's family are living in India without difficulty. The JKLF has not persecuted the respondent's brother, two daughters, or one daughter-in-law, the wife of her missing eldest son.
It is later-discovered evidence presented in the motion to reopen that rebuts this critical finding. Finally, the Board concluded that Bhasin was not eligible for asylum and withholding because Bhasin "has not established that her alleged persecution is countrywide."
Bhasin timely moved to reopen her proceedings in order to present previously unavailable evidence, focusing solely on "membership in a particular social group" as a protected ground.2 She presented evidence in the form of a sworn declaration that her two daughters and her son-in-law (who live together), had received death threats while the appeal before the Board was pending, including blank letters dotted with blood, blood-stained rags left on their doorstep, and violent verbal threats over the telephone similar to the threats made to Bhasin herself when she was in India. In one phone call, Bhasin's daughter was told that her brothers were missing, and that everyone in her family would soon disappear.
Bhasin also testified in her declaration that both her daughters and her son-in-law have now disappeared; she has not heard from them since October 24 or 25, 2002. She continued to try to telephone them for a period of six months. She has concluded that their phone has been disconnected. When Bhasin contacted her daughters' neighbors, they also informed her that the daughters and son-in-law had not been seen since that date.
On September 9, 2003, the Board denied Bhasin's motion to reopen. After reciting some of the basic facts contained within the motion and supporting affidavit, the Board provided the following analysis:
We find that the respondent's declaration is self-serving and that it is not highly probative in her case.
By means of the current motion, which...
To continue reading
Request your trial
-
Toufighi v. Mukasey
...consideration of all factors, both favorable and unfavorable, in determining whether to grant a motion to reopen. Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir.2005). In October 2003, Toufighi sought reopening to permit him to apply for adjustment of status on the ground that he had marrie......
-
Toufighi v. Mukasey
...consideration of all factors, both favorable and unfavorable, in determining whether to grant a motion to reopen. Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir.2005). In October 2003, Toufighi sought reopening to permit him to apply for adjustment of status on the ground that he had marrie......
-
Sarkar v. Garland
...or that he "would be subject to a pattern or practice of persecution" based on his political affiliation. See Bhasin v. Gonzales , 423 F.3d 977, 984 (9th Cir. 2005) (noting that an applicant "must generally show an individualized, rather than a generalized, risk of persecution" to establish......
-
Mastro v. Rigby
...court abused its discretion when it invoked the fugitive disentitlement doctrine to dismiss Linda's appeal. See Bhasin v. Gonzales, 423 F.3d 977, 989 (9th Cir.2005) (reviewing the application of the fugitive disentitlement doctrine for abuse of discretion); accord Bano v. Union Carbide Corp......