Kaur v. Garland

• Citation: 2 F.4th 823
• Decision Date: 21 June 2021
• Docket Number: No. 18-72786,18-72786
• Parties: Ravinder KAUR, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

2 F.4th 823

Ravinder KAUR, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 18-72786

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 16, 2020 San Francisco, California

Filed June 21, 2021

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.

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. On October 15, 2018, Kaur petitioned for review with this Court.

STANDARD OF REVIEW

We review the denial of a motion to reopen for abuse of discretion. Martinez v. Barr , 941 F.3d 907, 921 (9th Cir. 2019). "The BIA abuses its discretion when it acts arbitrarily, irrationally, or contrary to the law." Id. We review legal questions de novo and factual findings for substantial evidence. Barrios v. Holder , 581 F.3d 849, 854 (9th Cir. 2009), as amended , abrogated in part on other grounds by Henriquez-Rivas v. Holder , 707 F.3d 1081 (9th Cir. 2013).

DISCUSSION

To prevail on her motion to reopen, Kaur

needed to clear four hurdles: (1) [s]he had to produce evidence that conditions had changed in [India]; (2) the evidence had to be material; (3) the evidence must not have been available and would not have been discovered or presented at the previous proceeding; and (4) [s]he had to demonstrate that the new evidence, when considered together with the evidence presented at the original hearing, would establish prima facie eligibility for the relief sought.

Toufighi v. Mukasey , 538 F.3d 988, 996 (9th Cir. 2008), as amended (citations and internal quotation marks omitted); see also 8 U.S.C. § 1229a(c)(7) ; 8 C.F.R. § 1003.2(c).

A. The BIA erred in determining that Kaur did not establish material changed country conditions.

An alien may generally file one motion to reopen within ninety days of a final administrative order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i) ; see also 8 C.F.R. § 1003.2(c)(2). Courts disfavor motions to reopen, especially when they work "to the advantage of the deportable alien who wishes merely to remain in the United States." INS v. Doherty , 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Still, "[t]he motion to reopen is an ‘important safeguard’ intended ‘to ensure a proper and lawful disposition’ of immigration proceedings." Kucana v. Holder , 558 U.S. 233, 242, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) (quoting Dada v. Mukasey , 554 U.S. 1, 18, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008) ).

There is no time limit for reopening when the motion "is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding." 8 U.S.C. § 1229a(c)(7)(C)(ii) (emphasis added); see also 8 C.F.R. § 1003.2(c)(3)(ii) (also describing the changed country conditions exception).

Kaur filed the instant motion to reopen years after the ninety-day deadline. Kaur must therefore show changed country circumstances for the BIA to consider her claims. See 8 U.S.C. § 1229a(c)(7)(C)(ii) ; see also 8 C.F.R. § 1003.2(c)(3)(ii).

1. Singh's death and the threats from Kaur's in-laws constituted more than a personal change in circumstances

Citing Najmabadi v. Holder , 597 F.3d 983, 991 (9th Cir. 2010) and He v. Gonzales , 501 F.3d 1128, 1132 (9th Cir. 2007), the BIA concluded that Singh's death and his parents’ death threats did not constitute a material change in country circumstances, only a change in personal circumstances . But this conclusion mischaracterizes the holding in Najmabadi and He . In those cases, the Court held that "a self-induced change in personal circumstance" such as a child's birth in the United States does not suffice for changed country circumstances purposes. He , 501 F.3d at 1132 (internal quotation marks and alterations omitted); see also Najmabadi , 597 F.3d at 991 (petitioner's wish to engage in political activism in her home country did not constitute changed country circumstances). The rule established in He and Najmabadi makes sense because "otherwise, applicants could move to reopen by changing circumstances within their control." Larngar v. Holder , 562 F.3d 71, 77 (1st Cir. 2009).

But the utility of the rule in He and Najmabadi does not hold water when the changed circumstances occur in the country of nationality or the country to which removal is ordered, and are entirely outside the petitioner's control, even if they are personal, painful, or life-altering.² The He and Najmabadi principle cannot apply rigidly when changed circumstances in the country of origin, while personal to the petitioner, are entirely outside her control.

Kaur's changed circumstances are, in part, deeply personal. But her husband's death in India and the ensuing threats...