Kaur v. Garland, 18-72786

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: MENDOZA, DISTRICT JUDGE
• Parties: Ravinder Kaur, Petitioner v. Merrick B. Garland, Attorney General, Respondent
• Docket Number: 18-72786
• Decision Date: 21 June 2021

Ravinder Kaur, Petitioner

v.
Merrick B. Garland, Attorney General, Respondent

No. 18-72786

United States Court of Appeals, Ninth Circuit

June 21, 2021

Argued and Submitted November 16, 2020

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A079-606-563

Robert B. Jobe (argued) and Morgan Russell, Law Office of Robert B. Jobe, San Francisco, California, for Petitioner.

Brooke M. Maurer (argued), Trial Attorney; Carl McIntyre, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Mary M. Schroeder and Marsha S. Berzon, Circuit Judges, and Salvador Mendoza, Jr., ^[*] District Judge.

SUMMARY^[**]

Immigration

Granting Ravinder Kaur's petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel held that the Board erred in concluding that Kaur failed to establish material changed circumstances to warrant an exception to the time limitation on her motion to reopen, and in concluding that she failed to establish prima facie eligibility for asylum, withholding of removal, or protection under the Convention Against Torture.

Kaur sought to reopen her removal proceedings based on a combination of changed personal circumstances - the death of her abusive husband and his family's threats that they would kill her if she returned to India because she was responsible for his death, and changed country conditions - including worsening conditions in India for women and widows.

The panel held that the Board mischaracterized the record and erred in concluding that Kaur presented evidence of only changed personal circumstances in support of reopening. The panel explained that while a self-induced change in personal circumstances does not qualify for the changed circumstances exception, that principle cannot apply rigidly when changed circumstances in the country of origin, while personal to the petitioner, are entirely outside her control, as was the case here. The panel further explained that even where any change in personal circumstances is voluntary and did not originate in the country of nationality, the changed circumstances exception applies where changes in personal circumstances are made relevant due to changes in country conditions. The panel wrote that Kaur's husband's death, and his family's death threats, were made relevant by increased violence in India against women, and in particular against widows. The panel further wrote that, contrary to the Board's determination that Kaur provided evidence of only generalized conditions, Kaur presented evidence demonstrating that the prevalence and severity of human rights violations against women and widows had materially worsened in many respects.

The panel held that the Board also erred in concluding that Kaur failed to establish prima facie eligibility for asylum and withholding of removal relief. First, the panel concluded that the Board erred in determining that Kaur failed to establish that a protected ground, including her membership in a family social group, would be one central reason, or a reason, for the harm she fears. The panel wrote that a person may share an identity with a persecutor, and if a member of a particular social group is persecuted by other members of that same group because those members perceive the applicant as being "insufficiently loyal or authentic" to that group, she has been persecuted on account of a protected ground. Second, the panel concluded that the Board erred by requiring Kaur to show that her similarly situated family members had been mistreated. The panel explained that the safety of similarly situated members of the family who remained in the country of origin may be pertinent to a claim of future persecution, but does not itself disprove it, and in this case, the Board relied on the safety of Kaur's daughter, who was not similarly situated. Third, the panel concluded that the cultural context and Kaur's evidence established more than a mere personal vendetta.

The panel held that the Board erred in concluding that Kaur failed to establish prima facie eligibility for CAT protection. First, the panel held that the Board erred in applying a "more likely than not" standard, rather than requiring Kaur to show a "reasonable likelihood" of meeting the statutory requirements for CAT protection. Moreover, the panel concluded that the Board abused its discretion in determining that Kaur did not meet the government consent or acquiescence requirement. The panel pointed out that Kaur presented evidence that her husband's family is wealthy and has the means of carrying out their threats, that India suffers from widespread corruption, and that officials respond ineffectively to crimes, especially those against women. Based on that evidence, the panel concluded that the Board did not have substantial evidence to dismiss Kaur's fears as speculation.

OPINION

MENDOZA, DISTRICT JUDGE

This asylum case is about changed country circumstances, including changes in personal circumstances, which are entirely outside the applicant's control. Ravinder Kaur, an Indian national, appeals the BIA's decision denying her motion to reopen removal proceedings. Kaur argues that the BIA erred in concluding that she has failed to show materially changed conditions in India, her country of origin. She also argues that the BIA erred in concluding she failed to establish a prima facie case of asylum and withholding of removal or protection under the Convention Against Torture.

We agree with Kaur on several critical points. The BIA erred in determining that she failed to show material changed conditions in India. Kaur's personal circumstances in India changed in a way entirely outside her control and, relatedly, violence against women has materially increased in India. These situations together constitute changed country circumstances. The BIA also erred in its analysis of whether Kaur established a prima facie case for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We thus remand the case to the BIA for further proceedings on Kaur's motion to reopen.

BACKGROUND

Kaur's parents arranged her marriage to Balwinder Singh in 1993. Singh turned out to be an alcoholic and abusive. After the birth of their first child, Kaur moved to the Philippines with Singh, his father, and his stepmother. There, Singh's abuse worsened. He regularly raped Kaur, often overpowering her when he drank. Their first three children were girls, which angered Singh, who wanted a boy. The abuse increased still further. Singh hit Kaur and tried to force her to abort her third pregnancy.

In May 2001, Kaur and one of her daughters entered the United States on visitor visas. Later that summer, Kaur gave birth to her fourth child, a son. Singh and another of their daughters arrived in the United States later in 2001.

In the United States, Singh continued to physically and verbally abuse Kaur and the children. His drinking worsened. Neighbors called the police several times, but Singh forced Kaur to lie and say that everything was fine. In 2004, Kaur finally called the police herself, and the police arrested Singh. His parents admonished her that "all Indian men do that," and "it didn't matter." AR 85. They said, "Indian people don't disclose private matters to other people." Id. At their insistence, Kaur eventually went to the police and asked that they drop the charges.

The United States deported Singh in 2007, after an arrest for a DUI. Singh told Kaur that if she returned to India, "he would take revenge" and "make [her] pay." Id. Singh's mother told Kaur that if she returned, she "would not live in peace." AR 86.

Singh died in 2013 from alcohol-related illnesses. When Kaur contacted her in-laws, they became very angry. They told her she "was to blame for their son's death" and that if she "ever came back to India, they would get [her] killed." Id.

PROCEDURAL HISTORY

In fall 2001, Kaur and Singh applied for asylum. Kaur's asylum application falsely stated that militants in the Philippines had raped her.^[1] They testified before an immigration judge on July 2, 2002, and the IJ denied their application on July 11, 2002. The IJ found Kaur and Singh not credible, and alternatively held that Kaur failed to meet her burden of proof to show eligibility for relief from removal.

Between 2003 and 2009, Kaur filed four motions to reopen. The IJ denied the first, and the BIA denied the next three in turn.

Finally, on January 17, 2018, Kaur filed the motion to reopen at issue. The motion asserts material changed circumstances arising in Kaur's country of nationality under 8 C.F.R. § 1003.2(c)(3)(ii) due to worsened conditions since 2002 for women in India generally, combined with the more specific changed circumstances of Singh's death and his family's explicit threats. The motion also argues that Kaur presents a prima facie case for asylum and withholding of removal because of (1) her past abuse in India due to her membership in the particular social group of Mr. Singh's family, (2) her fear of future persecution by her in-laws because of that family membership, and (3) her fear of persecution because of her membership in the particular social group of Indian widows. Kaur also argues that she has established prima facie eligibility for CAT protection because of the past violence and rape she suffered in India, her in-laws' threats, and widespread corruption, impunity for familial violence, and murder of women by their in-laws in India.

On September 25, 2018, the BIA denied Kaur's 2018 motion to reopen, concluding that Kaur had shown no material changed circumstances in India since her hearing in 2002. They also reasoned that she did not establish prima facie eligibility for asylum, withholding removal, or protection under CAT....