Sharma v. Eric H. Holder Jr.

• Decision Date: 01 February 2011
• Docket Number: 05–72456,Nos. 04–76624,09–71104.,s. 04–76624
• Citation: 633 F.3d 865
• Parties: Ratnesh SHARMA, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.Ratnesh Sharma, Petitioner,v.Eric H. Holder Jr., Attorney General, Respondent.Ratnesh Sharma, Petitioner,v.Eric H. Holder Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

633 F.3d 865
11 Cal. Daily Op. Serv. 1511
2011 Daily Journal D.A.R. 1833

Ratnesh SHARMA, Petitioner,
v.
Eric H. HOLDER Jr., Attorney General, Respondent.Ratnesh Sharma, Petitioner,
v.
Eric H. Holder Jr., Attorney General, Respondent.Ratnesh Sharma, Petitioner,
v.
Eric H. Holder Jr., Attorney General, Respondent.

Nos. 04–76624

05–72456

09–71104.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 14, 2010.Filed Feb. 1, 2011.

[633 F.3d 867]

Hardeep Singh Rai, San Francisco, CA, for the petitioner-appellant.Joshua Michael Levin, Senior Trial Attorney; Siu P. Wong, Trial Attorney; Kathryn Deangelis, Attorney;

[633 F.3d 868]

Kristina Rencic Sracic, Trial Attorney, Department of Justice, Washington, D.C., for the respondent-appellee.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A079–566–588.Before: J. CLIFFORD WALLACE and SIDNEY R. THOMAS, Circuit Judges, and RICHARD MILLS, Senior District Judge.^*Opinion by Judge WALLACE; Partial Concurrence and Partial Dissent by Judge THOMAS.

OPINION WALLACE, Senior Circuit Judge:

Ratnesh Sharma petitions for review of the dismissal of his appeal by the Board of Immigration Appeals (Board). The Board reviewed favorably the decision of the immigration judge (IJ), which denied Sharma's application for asylum, withholding of deportation, and protection under the Convention Against Torture (CAT). The Board then denied Sharma's subsequent motion to reopen his removal proceedings. We have jurisdiction to review orders of removal and denials of motions for reopening pursuant to 8 U.S.C. § 1252. We deny review of the petition.

I.

Sharma, a native of India, entered the United States in 2001 and overstayed his visa. He filed an asylum application and was placed in removal proceedings. His asylum application was heard by an IJ. The facts are essentially taken from his testimony before the IJ.

According to Sharma, the police stationed where he lived in India persecuted him because they thought he was a political operative working against the government's interests. Sharma is a Hindu. His trouble began when his father, a professor at a university in India, started research for a book about a Sikh separatist movement. Because Sharma's father planned to detail police misconduct in the book, the police viewed his effort as anti-government. Sharma began assisting his father with the book in 1999. Sharma's help was mostly clerical: he entered interview data in a computer, and performed some photocopying.

In September 1999, shortly after beginning to help his father, Sharma was at his father's home when the police entered. They stated that they were looking for Sharma's father and asked Sharma where he was. When Sharma told them he did not know, they took Sharma with them to look for his father. After their search proved unsuccessful, they returned to the police station with Sharma. While there, the police interrogated Sharma about his father. They wanted to know about his father's research and the location of his father's research data. They threatened Sharma, telling him that they would hurt him if he did not cooperate in providing them with the information and the data. After several hours, they released him. At no point during this discussion did police ever question Sharma about his personal views.

Two days later, the police again took Sharma. They interrogated him about the research that his father planned to use in the book. When Sharma indicated he neither had it nor had access to that research,

[633 F.3d 869]

they struck his back with belts and a baton. They released him after four hours.

Sharma then started photocopying the research data before ostensibly complying with the police by giving them the original research, 20–25 pages at a time. He did this for about four months, but after the police learned about the photocopying, they once more took Sharma to the station, interrogated him about the photocopies, and beat him when they were unsatisfied with his explanation. They then held Sharma for three days until his father came to the police station, gave the police all copies of his research, and promised to stop his research on the Sikh movement.

Sharma testified that after this last episode, the police came to the family home and told his father that if he did not give them a complete copy of the research, they would kill Sharma. Sharma's father then abandoned his plans to publish the Sikh book. At this point, Sharma left the family home and lived elsewhere in India for about sixteen months. He then procured a passport and visa prepared by an “agent” and departed to the United States. Upon departure, the police allegedly told Sharma's father that if Sharma returned to India, they would torture and kill him.

The IJ denied Sharma's asylum application based on a finding that his testimony lacked credibility. The Board disagreed with the IJ's credibility reasoning but nevertheless affirmed the decision, holding that there was no evidence that Sharma was persecuted on account of his political beliefs:

The respondent believes that the police harassed him in order to stop his father from publishing his book. He believes the police could not directly oppose his father. We do not find that the police attributed a political opinion to the respondent. Rather, the respondent was a tool used by the police to force their [sic] father to divulge information and to cease his activities.

Approximately one and a half months after the Board issued its decision, Sharma married a United States citizen. One and a half months after his marriage, Sharma filed a timely motion to re-open on the ground that he was married to a United States citizen. He argued that he was now eligible for adjustment of his status pursuant to a lawful, bona fide marriage.

The Board disagreed. It ruled that Sharma failed to rebut the presumption, applicable to all marriages entered into after the initiation of removal proceedings, that he entered the marriage for the purpose of “procuring [his] admission as an immigrant.” See 8 U.S.C. § 1255(e)(3); 8 C.F.R. § 204.2(a)(1)(iii)(A)-(B).

Sharma subsequently filed two more motions to reconsider, which were both denied. Sharma now petitions for review of all of the Board's adverse rulings.

II.

Sharma first takes issue with the Board's determination that he was not persecuted on account of an imputed political opinion, and that Sharma was instead persecuted based on the government's desire to disrupt his father's scholarly work.

Eligibility for asylum requires showing a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). Mandatory withholding of removal requires a clear probability of the same. 8 C.F.R. § 1208.16(b)(2); Al–Harbi v. I.N.S., 242 F.3d 882, 888 (9th Cir.2001). Sangha v. I.N.S. provides the facts that Sharma must prove to establish a well-founded fear of persecution:

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After [the Supreme Court's decision in] Elias–Zacarias, an asylum seeker claiming to be a victim of persecution on account of his or her political opinion must establish, by evidence, four facts: (a) that he or she has been a victim of persecution; (b) that he or she holds a political opinion; (c) that this political opinion is known to or imputed by the persecutors; and (d) the ensuing persecution of the victim has been or will be on account of this opinion.

103 F.3d 1482, 1487 (9th Cir.1997). We will reverse the Board's determination only if “the evidence [the alien seeking asylum] presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” I.N.S. v. Elias–Zacarias, 502 U.S. 478, 483–84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). This is known as the “substantial evidence” standard. Sangha, 103 F.3d at 1487.

The dispositive consideration in this case is whether Sharma established the fourth Sangha fact: whether the “persecution of the victim has been or will be on account of [a political] opinion.” Id. at 1487. Either the police harmed Sharma because of an imputed political opinion, or they did so, as the government argues and the Board found, solely as a means to convince his father to stop working on the Sikh book. Given the Board's credibility finding, “the issue is not whether the events in question took place, but rather whether they establish persecution” on the basis of an enumerated ground. Navas v. I.N.S., 217 F.3d 646, 657–58 (9th Cir.2000).

We conclude that this case is governed by our earlier decision in Sangha. In Sangha we held that the petitioner failed to meet his burden of proving that an imputed political opinion was the basis for the alleged persecution. There, the alien's father was the member and leader of a political party. 103 F.3d at 1486. Shortly after Sangha's father gave a speech criticizing the Bhindrawala Tiger Force (BTF) terrorist group,

four armed men forced their way into the Sangha home. They beat up Sangha's father until Sangha and his brother came to protect him. The men identified themselves as members of the BTF. They demanded that Sangha's father cease his political activities, pay them 100,000 rupees, and give over Sangha and his brother. They said they wanted the two brothers to fight for Khalistan and they wanted to make the brothers unavailable to support the father. They gave Sangha's father three weeks to comply.

Id. Ruling on the above evidence, the Board found that Sangha was not persecuted on account of his political views. Id. On appeal, we held that substantial evidence did not compel us to find otherwise. The BTF “gave two reasons why it wanted to recruit Sangha,” we explained:

First, it wanted Sangha to help fight for Khalistan. This reason suggests that it was acting in furtherance of its own goals, rather than to persecute Sangha for any views he might hold. Second, the BTF wanted to make Sangha unavailable to support his father....