Narayan v. Ashcroft, 03-70199.
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Citation | 384 F.3d 1065 |
| Docket Number | No. 03-70199.,03-70199. |
| Parties | Kamal NARAYAN, Petitioner, v. John ASHCROFT, Attorney General, Respondent. |
| Decision Date | 16 September 2004 |
v.
John ASHCROFT, Attorney General, Respondent.
Page 1066
Robert B. Jobe (argued), San Francisco, CA, for the petitioner.
Norah Ascoli Schwarz (argued) and Daniel D. McClain, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A77-382-105.
Before HAWKINS, THOMAS, and BEA, Circuit Judges.
MICHAEL DALY HAWKINS, Circuit Judge:
Kamal Narayan ("Narayan"), an Indo-Fijian, petitions for review of the Board of Immigration Appeals' ("BIA") order summarily affirming the Immigration Judge's ("IJ") denial of his applications for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We grant the petition.
Narayan, an ethnic Indian and citizen of Fiji, whose testimony to the IJ we take as credible,1 provided the following facts in support of his asylum and withholding of removal claims.
In 1987, in the midst of violence directed at Fijians of East Indian descent occurring during a military coup staged by ethnic Fijians, Narayan was attacked and stabbed by a group of ethnic Fijians.2 When Narayan sought medical care for his wounds from a local medical facility, he was denied treatment; when he reported the attack to the ethnic Fijian-controlled police, they refused to investigate.
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In 1988, ethnic Fijians burglarized Narayan's apartment several times. During one of those home invasions, he was stabbed a second time. Again, although he reported the invasions to the police, they did nothing. Additionally, when Narayan's sister's house was being burglarized, Narayan approached the house to help, but was warned that he would be stabbed if he got out of his car to try to stop them.
There was also another incident in 1997. When Narayan was on the way to a sports complex, he was "bashed" by a group of ethnic Fijians. Again, the police did nothing. Narayan finally left Fiji in February 1998.
Narayan entered the United States in April 1998 on a tourist visa. When he overstayed the visa, the INS began removal proceedings. Conceding removability, Narayan applied for asylum and withholding of removal.
After a hearing, the IJ denied Narayan's applications, finding that the acts against him did not rise to the requisite level of persecution.3 Narayan appealed to the BIA, arguing that the IJ's decision that he was not persecuted was not supported by substantial evidence. Separately, Narayan moved for a remand for the IJ to consider new evidence of the worsening conditions in Fiji. The BIA affirmed the IJ's decision and did not address the remand request.
Because the BIA affirmed without opinion, we review the IJ's decision, as the final agency determination, for substantial evidence. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003); Lata v. INS, 204 F.3d 1241, 1244 (9th Cir.2000). Under this standard, "a petitioner contending that the [IJ]'s findings are erroneous must establish that the evidence not only supports that conclusion, but compels it." Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.1995) (internal quotation marks omitted).
To qualify for asylum, an applicant must show that he is a refugee under 8 U.S.C. § 1101(a)(42). A refugee is a person unable or unwilling to return to his home country because "of past persecution, or ... a well-founded fear of future persecution, on account of race, religion, nationality, membership in a particular social group, or political opinion." Prasad v. INS, 83 F.3d 315, 318 (9th Cir.1996). The IJ determined that the various actions against Narayan were "on account of his race." The only issue we must decide, then, is whether the acts against Narayan amounted to persecution.4
A. Persecution
Narayan must establish either past persecution or a well-founded fear of future persecution. See 8 U.S.C. § 1101(a)(42)(A); Melkonian v. Ashcroft, 320 F.3d 1061, 1064 (9th Cir.2003). We have defined persecution as "the infliction of suffering or harm upon those who differ ... in a way regarded as offensive." See Prasad v. INS, 47 F.3d 336, 339 (9th Cir.
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1995) (citations omitted). We have also said that the cumulative effect of several incidents may constitute persecution. See Surita v. INS, 95 F.3d...
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...1. See also Sinha v. Holder, 564 F.3d 1015 (9th Cir.2009); Kumar v. Gonzales, 439 F.3d 520 (9th Cir.2006); Narayan v. Ashcroft, 384 F.3d 1065 (9th Cir.2004); Faruk v. Ashcroft, 378 F.3d 940 (9th Cir.2004); Lal v. INS, 255 F.3d 998 (9th Cir.2001); Tagaga v. INS, 228 F.3d 1030 (9th Cir.2000);......
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Sinha v. Holder, 04-73843.
...have suffered" in a number of previous cases. See Gafoor v. INS, 231 F.3d 645, 647 (9th Cir.2000); see also Narayan v. Ashcroft, 384 F.3d 1065, 1066 n. 2 (9th Cir.2004); Singh v. INS, 94 F.3d 1353, 1356-57 (9th Sinha testified to four separate incidents of mistreatment that he personally ex......
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...soldiers, robbed multiple times, received no police assistance, and endured other crimes such as burglary); see also Narayan v. Ashcroft, 384 F.3d 1065, 1068 (9th Cir.2004) (holding violence due to the 1987 military coup, the denial of medical treatment, repeated burglaries of the petitione......
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Sinha v. Holder, 04-73843.
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