Kaur v. Ashcroft

• Decision Date: 19 August 2004
• Docket Number: No. 02-72302.,02-72302.
• Citation: 379 F.3d 876
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Ranjeet KAUR, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

379 F.3d 876

Ranjeet KAUR, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-72302.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 7, 2003.

Filed August 19, 2004.

COPYRIGHT MATERIAL OMITTED

Earle A. Sylva, Rai Law & Associates, San Francisco, CA, Rohit Dharwadkar, Law Offices of Hardeeep Singh Rai, San Francisco, CA, for the petitioner.

Ronald E. LeFevre, Office of the District Counsel, San Francisco, CA, Richard M. Evans and Joan E. Smiley, Office of Immigration Litigation, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A75-310-310.

Before: CANBY, W. FLETCHER, and TALLMAN, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge:

Ranjeet Kaur petitions for review of a decision of the Board of Immigration Appeals ("BIA") upholding the Immigration Judge's ("IJ") denial of her application for asylum and withholding of removal, and denial of her motion to remand to the IJ to apply for relief under the Convention Against Torture ("CAT"). Because we find that the BIA's asylum decision was not based on substantial evidence, we grant the petition and remand to the BIA for proceedings consistent with this opinion.

I. Background

Ranjeet Kaur is a Sikh and a native and citizen of India. She entered the United States illegally in July 1996 and was placed in removal proceedings the following year. After admitting removability, Kaur filed for asylum and withholding of removal. She testified before the IJ that in 1995 she was imprisoned, beaten, and raped in India because the police wrongly imputed her father's alleged connections to Sikh militants to her. The IJ denied Kaur's application for asylum and withholding of removal because he found that her testimony was not credible. The BIA affirmed the IJ's credibility finding. It held, further, that even if Kaur were found to be credible, the weaknesses in her testimony were such that the testimony was insufficient to carry her burden of proof without corroborating evidence, which she had failed to provide.

Kaur testified that her family had a large farm of 80 acres in India. She testified on direct examination that in May 1993, Sikh "militants" or "terrorists" came to her family's home at six o'clock in the evening and demanded the family's jeep. Kaur was in the kitchen, preparing food. After her father told the militants that her uncle had taken the jeep, one of them became angry, showed his pistol and said, "in case you try to be cle [ ]ver, we are going to kill all of your family." Kaur's father offered the militants his tractor instead. "Then they said along with the tractor we need some money also."

Kaur testified that her father "went inside and suddenly I heard — I heard shots being fired.... When we heard the sound of firing, the militants got nervous and they (indiscernible) back. When after that my father came out, he had his license gun with him. When they saw that gun with my father, they started fighting [sic]." "Thereafter my father also started firing as others were fighting [sic] and while fighting [sic] he went out. They went out. Canal which flows in front of our house which is very close by, there's no water that time, they crossed through that dry canal and then left."

Toward the end of the hearing, the IJ asked Kaur about this episode:

Q [by the IJ]: Now, the gunshots that you say you heard that apparently scared the militants, where did those gunshots come from?

A: From inside.

Q: Inside where?

A: From inside the room. Because my father had gone inside the room.

Q: Inside what, his bedroom?

A: Yes.

Q: So, are you saying that your father fired the shot inside his room?

A: Yes. My father fired the shots.

Q: Where is your father's bedroom? Is it in the front of your house or the back of your house?

A: As we enter the house, it's on one side.

Kaur testified on direct examination that after the militants left, her father went onto the roof of their house to tell the neighbors what had happened. "And to that, they also came up on the roof and offered to help us all saying that we will be together and we'll sleep on the roof today. And thereafter, we had our meals, they slept on the roof. We slept in our house. They also had weapon, gun. They took it along with them."

During cross-examination, Kaur explained further:

A:.... He went up the stairs within the house and from the roof called adjourning [sic] neighbors. The roofs are — both the roofs are joined with each other. From there, he met the neighbors.

Q: So, he wasn't afraid to go and place himself on the roof of his home, exposing himself to anybody hiding outside with a gun, shouting to the neighbors saying, militants came to my house? Is that what you're saying?

A: It was not like that. It is the normal way of our living that you go over the roof and joining with the other houses. You could go down from there. There's no shouting for neighbors. Went and spoke to them.

* * *

Q: Did your neighbors have guns, too?

A: Yes, they have.

Q: And so your neighbors heard the gunshots that your father and the militants exchanged?

A: I'm not sure but they must have heard because the firing shots are heard quite a distance.

Q: And are you testifying that your father then in the middle of the night after gunshots are exchanged crawls down his neighbor's roof into his neighbor's home unexpected?

A: The way we have relationship with neighbors in India, we can go like that and the house was joining with each of the — it was exposing yourself anywhere.

Kaur testified that the police came to their home at five or five-thirty the next morning to arrest her father. On cross-examination, when asked how she remembered what time the police had come to her home, Kaur stated: "The events or incidents which have happened with you, you remember those. It was the first time such incident had happened in my life." After her father was later released, Kaur learned that the police had thought he was linked to the militants:

When he came after (indiscernible) to home, he told me that whenever they are beating him or torturing him, they are telling him that Goodeev [ ] Singh has stole — that Goodeev Singh has told them that terrorists came to your house. After having left that place they went and killed a Hindu. As police blamed him and charge him that you help the terrorist and you have joined with them.

Kaur testified that the police held her father for five days. He was released after a bribe was paid.

In October 1995, about a year and a half after her father was arrested, an event was organized in Kaur's village to commemorate the death of two boys who had been killed by police in 1991. Kaur explained how her father, like others at this commemoration, spoke about his own treatment at the hands of the police:

During the speeches, various speakers said how (indiscernible) police first kills innocent people and then tells that they have been killed through their personal enemy. Then they implicate or blame these innocent people that they still give shelter to terrorist and feed them, but that thing was not happening there at all. Then my father also give a lecture giving to his own experiences how he had been tortured and falsely implicated by the police and that he said that I was beaten like this and I was falsely implicated.

After Kaur's father delivered his speech, he left the village to visit Kaur's maternal uncle who had been running a fever.

While Kaur's father was away, the police arrived at the family farm, looking for him. Kaur testified:

They came and asked where your father is. We said, he is not at home. Then they started searching the house and they ransacked the house. After they search they did not find any item of — any objectionable item. Once they did not find anything, they started breaking our utensils and ransacking the house. When I objected to that, that you have not found any objectionable item, why you breaking our utensils and other article of house? The moment policeman heard this, one of them turned back and slapped me. I said I was not at fault at all. You slapped me. I'm going to report this matter to the senior officers. He immediately got hold of me from arm and said, while you report this matter I will tell you and I was handcuffed.

When Kaur's mother objected to the police's behavior, she was pushed away. Kaur was taken to the police station.

Kaur testified in detail about what happened during the three days she was detained at the station. "Once we reached the police station, there are two policemen standing. They opened the gate with the jeep drove in and once entered they pulled me down and I was put in a small room and they closed that room." "And thereafter after awhile (indiscernible) entered my room. He asked where your father is. I told that my father has gone to get the welfare of my ailing uncle, but they did not believe me. And he beat me for awhile, about a half hour, and then he left." "They said that your father was helping the militants as well as instigating — misleading the public to stand before the government.... They also blamed me that militants come to you. What are they to you? And why do they come here?"

On cross-examination, Kaur explained the details of her surroundings in the police station:

Q: Tell me about the police station. Was it a one-story building? Two story? What type of building was it?

A: It's one story. Goes on the ground.

Q: Was it a square building? Rectangular building?

A: It was square. Square building. Square.

Q: It was a square building?

IJ to Mr. Chinn [Government Attorney]: Q: That is what the interpreter said. Square building.

* * *

Mr. Chinn to Kaur: Q: When you entered the front door of the police station, what was there? What do you encounter when you enter the police station?

A: Try to show with the fingers that once I entered in the jeep from the main door I was made to get down...