Kumar v. Gonzales
| Decision Date | 23 January 2006 |
| Docket Number | No. 03-70191,03-73449.,03-70191 |
| Citation | 435 F.3d 1019 |
| Parties | Raj KUMAR, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. Raj Kumar, Petitioner, v. Alberto R. Gonzales, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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Garish Sarin, Law Offices of Garish Sarin, Los Angeles, CA, for the petitioner.
Peter D. Keisler, Assistant Attorney General; Linda S. Wendtland, Assistant Director; John S. Hogan, Office of Immigration Litigation, Washington, D.C., for the respondent.
Before REINHARDT, KOZINSKI, and BERZON, Circuit Judges.
Opinion by Judge REINHARDT; Dissent by Judge KOZINSKI.
Raj Kumar (Raj), an Indian citizen and native of the northern Indian state of Jammu and Kashmir, petitions for review of the Board of Immigration Appeals' (BIA) order affirming, without an opinion, the denial of his applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). He also petitions for review of the BIA's denial of his motion to reopen. We conclude that the Immigration Judge (IJ) erred in finding (1) that Raj was not credible, (2) that Raj had not established a nexus between his past persecution and at least one of the five protected grounds enumerated in 8 U.S.C. § 1101(a)(42)(A), and (3) that Raj had failed to demonstrate a reasonable fear of future persecution.
According to Raj's sworn declaration, in the early morning of January 6, 1998, police officers stopped him as he walked to his neighborhood temple in Jammu and Kashmir and asked him whether he knew the whereabouts of Syed Ali Shah, whom the police had identified as a suspected terrorist and Muslim separatist. Raj pointed the officers in the direction of Shah's house but initially refused to accompany them there, in part because he did not believe that Shah was a terrorist. After the officers physically assaulted Raj and threatened him with arrest and possible death if he did not cooperate, he agreed to lead them to Shah's house.
When Raj and the police arrived at Shah's residence, Shah answered the door carrying a gun. Upon seeing that Raj was with law enforcement personnel, Shah attempted to flee and was shot by the officers and thereafter arrested. After Shah's arrest, Raj was released by the police. Several hours later, individuals associated with Shah came to the Kumar home and, believing that Raj had been involved in Shah's arrest, began yelling threats and throwing stones at the house. That evening, Raj and his brother Rajinder were arrested by the local police. The arresting officers informed them that Shah had died from his gunshot wounds but, prior to his death, had told the police that Raj and Rajinder were involved in terrorist activities.
The brothers were taken to the police station, where Raj was repeatedly and severely beaten with wooden sticks and leather belts by officers who told him that he would be killed if he did not disclose the identities of Muslim terrorists and reveal information about their planned terrorist activities. Despite Raj's truthful pronouncements that he was not involved with any militant or terrorist organization and could not provide the police with any relevant information, his confinement and physical abuse continued until February 6, 1998, when his father successfully bribed a police officer to release him along with his brother.
When Raj returned home from the police station he discovered that, during his confinement, individuals associated with Shah who were involved with Muslim terrorist organizations had come to the Kumar home seeking revenge for Shah's arrest and death. These individuals had killed Raj's brother Ram and also threatened to kill Raj, Rajinder and other members of the Kumar family. When Raj and Rajinder learned of these threats, they fled India; the two brothers arrived in the United States by way of Germany and Canada on February 26, 1998, and subsequently separated.
On or about April 24, 1998, Raj applied for asylum and withholding of removal. At a brief preliminary hearing before the IJ on December 16, 2000, Raj additionally requested relief under CAT. A hearing on the merits of Raj's case was held on May 25, 2000. At that hearing, Raj submitted in evidence, among other things, his sworn declaration detailing the events described above, Rajinder's application for asylum, the death certificate for his brother Ram which was sent from Jammu and Kashmir, a letter from his mother and father stating that a newly-appointed police official had threatened to kill him if he returned to India, and several photographs depicting injuries suffered from the beatings at the police station. Also in evidence were country reports from India which stated, among other things, that India was the site of significant civil rights abuses stemming from "deficient police methods and training" as well as "violent secessionist movements" responsible for "extrajudicial executions and other political killings, torture, and brutality." These problems were "acute in Jammu and Kashmir," where "torture and rape by police" and "arbitrary arrest and incommunicado detention" operated in conjunction with a "judicial system that barely functions."
On September 14, 2001, the IJ denied Raj's applications for asylum, withholding of removal, and relief under CAT. The IJ based the decision on his findings (1) that Raj was not credible, (2) that Raj had failed to establish a nexus between the harm suffered and a protected ground, and (3) that the threat of future persecution was speculative and thus Raj's fear of it was not reasonable.
With respect to his first finding that Raj was not credible, the IJ concluded that Raj had submitted fraudulent documentary evidence. Specifically, the IJ determined that a number four written on the date line of Rajinder's asylum application was "precisely the same peculiar and uniquely styled" number four that was written on Ram's death certificate. Based upon this and nothing more, the IJ surmised that the death certificate was likely forged by Raminder Singh, who had prepared the asylum applications for both Raj and Rajinder.
The IJ also noted that several of the photographs attached to Raj's asylum application which purported to show injuries that he had suffered at the hands of the Indian police officers were identical to photographs attached to Rajinder's application. The IJ concluded based upon this finding that Raj was attempting to claim injuries that were actually suffered by his brother. The IJ also stated that he did not believe Raj's contention that he did not know where Rajinder was at the time of the hearing, despite Raj's statements that Rajinder was a truck driver and that the brothers had separated out of economic necessity. According to the IJ, these considerations taken together with what the IJ determined to be inconsistencies between Raj's factual allegations and the Indian country reports required an adverse credibility finding.
Second, the IJ ruled that, even if Raj was credible, he was ineligible for asylum because he had failed to establish a nexus between the harm that he had suffered and at least one of the five grounds protected by the asylum provision of the Immigration and Nationality Act (INA). On this point, the decision stated as follows: With respect to his third finding that Raj had also failed to establish a reasonable fear of future persecution, the IJ cited only evidence that Raj's parents remained in India and had not been harmed by the separatist factions that had killed Raj's brother and threatened the lives of Raj and Rajinder. Based upon these three findings, the IJ denied Raj's application for asylum.
Incorporating by reference his analysis of Raj's asylum claim, the IJ also denied Raj's application for withholding of removal because that standard is more difficult to meet than the asylum standard. He ruled that because Raj could not meet the lesser asylum standard, he necessarily could not meet the stricter standard for withholding of removal.
Lastly, the IJ determined that Raj was not entitled to relief under CAT. The IJ cited his credibility ruling and further held that, even if Raj's allegations were true, the harm that he had suffered at the police station did not rise to the level of torture as that term is defined under CAT.
On December 13, 2002, the BIA affirmed the IJ's decision without an opinion. Raj filed a motion to reopen, which the BIA denied. He subsequently petitioned for review of both rulings. This appeal consolidates the two petitions for review, although Raj's brief does not address the denial of his motion to reopen.
We review for substantial evidence the BIA's decision that an applicant has not established eligibility for asylum. Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir.2004). Under that standard, the BIA's determination must be upheld if it is supported by reasonable, substantial and probative evidence from the record. Knezevic v. Ashcroft, 367 F.3d 1206, 1210-11 (9th Cir.2004); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) ().
We also review under the substantial evidence standard the BIA's decision that an applicant has not met the higher burden required for withholding of removal, Thomas v. Ashcroft, 359 F.3d 1169, 1174 (9th Cir.2004) reh'g en banc granted, 382 F.3d 1154 (9th Cir.2004), superceded...
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