Kaur v. Wilkinson

• Citation: 986 F.3d 1216
• Decision Date: 29 January 2021
• Docket Number: No. 18-73001,18-73001
• Parties: Chanpreet KAUR, Petitioner, v. Robert M. WILKINSON, Acting Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

986 F.3d 1216

Chanpreet KAUR, Petitioner,

v.Robert M. WILKINSON, Acting Attorney General, Respondent.

No. 18-73001

United States Court of Appeals, Ninth Circuit.

Submitted January 22, 2021^* Pasadena, California

Filed January 29, 2021

WARDLAW, Circuit Judge:

Chanpreet Kaur, a native of the state of Punjab in India, seeks asylum for fear of persecution in her country of origin on account of her work for the Mann Party and advocacy for the independent Sikh state of Khalistan. At her removal proceedings, she testified credibly that, as a result of her political activities, a group of men from the Indian National Congress Party, one of Punjab's major political parties, accosted her while she was alone at her parents’ store, dragged her into the public street, started ripping off her clothes and attempted to gang rape her. As a result of this assault, she suffered scrapes and facial bruising that required medical attention. This was not an isolated incident. Just months before this attack, agents of the Congress Party had threatened her while she was walking on the street. And just months after the attack, when Kaur left Punjab for Cyprus, Congress Party agents threatened her by phone "that they wanted to kill her" and bring her "dead body back to India." Congress Party agents subsequently tracked down her father, asked him about her whereabouts, and beat him. The police later came to her parents’ house, asked about her location, and beat both her father and mother when they told the police she was in the United States.

The Board of Immigration Appeals ("BIA") concluded that the attempted gang rape and death threats against Kaur, and the physical assault of her parents, was not a sufficient "amount of mistreatment" so as to constitute past persecution. Rather, the BIA reasoned that the attempted gang rape "did not rise to the level of persecution" because Kaur lacked evidence of "treatment for psychological harm," or other "ongoing issues" stemming from this assault.

The BIA erred in imposing evidentiary requirements of ongoing injury or treatment beyond the sexual assault itself in order to show persecution. Kaur's credible testimony about the attempted gang rape is sufficient to show persecution. Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator's domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim. We grant Kaur's petition for review and remand for further proceedings consistent with this opinion.

I.

Kaur was born in Punjab, India in 1993. In February 2015, she joined the Shiromani Akali Dal Simranjeet Singh Mann Party ("Mann Party"), which advocates for the creation of Khalistan, a sovereign state for the Sikh people. Mann Party members have faced persistent harassment, intimidation, threats, and violence in Punjab. See, e.g. , Singh v. Whitaker , 914 F.3d 654, 657 (9th Cir. 2019) (granting the petition for review of a Mann Party member who was jailed and severely beaten by the police on multiple occasions); Singh v. Ashcroft , 362 F.3d 1164, 1167–68 (9th Cir. 2004) (same).

Kaur's story is no exception. Kaur was first harassed by agents of the Congress Party, one of Punjab's major political parties, on account of her Mann Party membership in May 2016. Four Congress Party members on motorbikes accosted her in the street, cursed her, and told her that she would not "be able to show [her] face to the world" if she continued working for the Mann Party. Undeterred, Kaur continued her political activities.

Five months later, in October 2016, Kaur was working in her parents’ shop when a group of male members of the Congress Party entered and asked her to find some items they wished to purchase. It was about 2:00 p.m. in the afternoon. When she brought the items to the counter, the men grabbed her arms, pulled her over the counter, and dragged her into the street. They slapped her, kicked her, yelled obscenities at her, and told her that they were doing this to her because she was a Mann Party member. The men started ripping off Kaur's clothing because, as Kaur stated, "they wanted to rape me." Her father was away at the time, and her mother, who has difficulty walking, was unable to come to her aid. Kaur cried out for help and some of her neighbors came to her rescue. Still, she suffered injuries during this attempted gang rape that required immediate treatment from a nearby doctor.

Soon thereafter, Kaur left Punjab for Cyprus. While she was there, in February 2017, she received several threatening phone calls from Congress Party agents back in Punjab, including one in which the caller said that he was "going to kill [her]" and bring her "dead body back to India."

Roughly one month later, in March 2017, the Congress Party won elections in Punjab, and assumed power in the state.¹ Over the following months, Kaur made her way to Mexico, ultimately crossing into the United States near the San Ysidro port of entry in September 2017. She was almost immediately detained and charged as removable under 8 U.S.C. § 1182(a)(7)(A)(i), which renders an immigrant inadmissible for failing to possess a valid entry document at the time of applying for entry into the United States.

Even after Kaur was detained in the United States, her persecutors did not stop. Kaur testified that, in February 2018, her father was severely beaten on the way home from his Sikh temple by Congress Party agents. His assailants repeatedly asked Kaur's father if he knew where Kaur was located. A month later, the police showed up at her father's door to ask about Kaur's whereabouts. When Kaur's father explained that she was in the United States, the police thought he was lying and beat both him and Kaur's mother.

II.

During her immigration proceedings, Kaur conceded removability and applied for asylum, humanitarian asylum, withholding of removal, and relief under the Convention Against Torture (CAT). She claimed a well-founded fear of future persecution by her government on account of her political opinion.

The Immigration Judge (IJ) found that Kaur testified credibly.² However, the IJ rendered an oral decision rejecting Kaur's claim for relief on the basis that the attempted gang rape, death threats, and other harassment Kaur and her family had suffered did not constitute past persecution. The IJ also concluded that Kaur had not demonstrated that the attempted rape and harassment were committed by the government or by actors the government was unable or unwilling to control. In the alternative, the IJ concluded that even if Kaur had demonstrated past persecution, she had not demonstrated that she was unable to safely relocate within India to avoid future persecution. Finally, explaining that it was "4:15 in the afternoon" and therefore the court's time was limited, the IJ quickly dismissed Kaur's claims for withholding of removal and CAT relief. Accordingly, the IJ ordered Kaur removed to India.

On appeal, the BIA affirmed the IJ's order of removal. The BIA denied Kaur's asylum request, reasoning that she had failed to establish past persecution because she did not supplement her credible testimony of attempted rape with additional evidence of treatment for psychological harm or of ongoing issues. Skipping over Kaur's contention that she was persecuted by her government, the BIA also concluded that Kaur had not shown that the Indian government was unable or unwilling to control the individuals who had harassed, threatened, and attempted to rape her. In the alternative, the BIA found that, even assuming Kaur had demonstrated past persecution, she had not met her burden of showing she could not safely relocate within India. The BIA likewise dismissed her claims for humanitarian asylum, withholding of removal, and CAT relief.

Kaur timely petitioned for review.

III.

We have jurisdiction under 8 U.S.C. § 1252(a). Because the IJ found Kaur credible, her "statements must be taken as true." Mendez-Gutierrez v. Gonzales , 444 F.3d 1168, 1171 (9th Cir. 2006). "Where the BIA conducts its own review of the evidence and law, rather than adopting the IJ's decision, our review is limited to the BIA's decision, except to the extent the IJ's opinion is expressly adopted." Guerra v. Barr , 951 F.3d 1128, 1132 (9th Cir. 2020) (quoting Rodriguez v. Holder , 683 F.3d 1164, 1169 (9th Cir. 2012) ). "[W]e review de novo both purely legal questions and mixed questions of law and fact." Xochihua-Jaimes v. Barr , 962 F.3d 1175, 1183 (9th Cir. 2020) (alteration in original) (quoting Cordoba v. Holder , 726 F.3d 1106, 1113 (9th Cir. 2013) ). "Whether particular acts constitute persecution for asylum purposes is a legal question ... review[ed] de novo." Boer-Sedano v. Gonzales , 418 F.3d 1082, 1088 (9th Cir. 2005) (emphasis removed). Only the "BIA's findings of fact [are reviewed] for substantial evidence." Padilla-Martinez v. Holder , 770 F.3d 825, 830 (9th Cir. 2014).

IV.

To be eligible for asylum, Kaur must demonstrate that she "is unable or unwilling" to return to India "because of persecution or a well-founded fear of persecution on account of ... [her] political opinion." 8 U.S.C. § 1101(a)(42)(A). If a petitioner demonstrates that she has suffered past persecution, "then fear of future persecution is presumed." Deloso v. Ashcroft , 393 F.3d 858, 863 (9th Cir. 2005). To demonstrate past persecution, Kaur must establish that (1) her "treatment rises to the level of persecution;" (2) "the persecution was committed by the government, or by forces that the government was unable or unwilling to control" and (3) "the persecution was on account of one or more protected grounds," such as political opinion. Bringas-Rodriguez v. Sessions , 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc) (quoting Baghdasaryan v. Holder , 592 F.3d 1018, 1023 (9th Cir. 2010) ).

It is uncontested that Kaur...