Sharma v. Garland
| Decision Date | 17 August 2021 |
| Docket Number | No. 20-70238,20-70238 |
| Citation | 9 F.4th 1052 |
| Parties | Suresh Kumar SHARMA, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Manpreet Singh Gahra, Law Office of Manpreet S. Gahra, Berkeley, California, for Petitioner.
Ethan P. Davis, Acting Assistant Attorney General; Timothy G. Hayes, Senior Litigation Counsel; Sarai M. Aldana, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
Before: M. Margaret McKeown, Sandra S. Ikuta, and Daniel A. Bress, Circuit Judges.
We consider a recurring issue in immigration law: whether an applicant for asylum or withholding of removal has shown mistreatment that rises to the level of past persecution. We conclude that the record does not compel the conclusion that petitioner Suresh Sharma experienced past persecution in India. We also hold that Sharma's other arguments are without merit and therefore deny his petition for review.
Suresh Sharma entered the United States on July 22, 1997, on a nonimmigrant visitor visa. On August 30, 2011, the Department of Homeland Security (DHS) served Sharma with a Notice to Appear, charging him as removable for remaining in the United States longer than authorized. Sharma conceded removability and filed an application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Sharma's application was based on the following facts, which were set forth in a sworn declaration and in Sharma's testimony at a hearing before the Immigration Judge (IJ).
Before coming to the United States, Sharma lived in Punjab, India. Sharma owned a finance company that made loans to automotive dealers. One of Sharma's clients was Vinod Kumar, whom the parties refer to as Vinod. Sharma gave Vinod an unsecured loan of 2.5 million rupees, with payment due in March 1994. When Vinod failed to pay back the loan on time, Sharma discovered that Vinod, Vinod's brother-in-law, and Vinod's driver had gone missing, reportedly "under the instructions of Sumedh Saini," the Senior Superintendent of the Ludhiana, Punjab Police. In an effort to recover his loan to Vinod, Sharma began investigating. He learned that Saini had ordered police officials to kidnap the three men because of a personal dispute.
Sharma then began to receive anonymous phone calls instructing him to stop inquiring into Vinod's disappearance, or he "would be in big trouble." Sharma received many similar calls over the next several months. Sharma was scared by these calls, but he nevertheless continued to stay apprised of the situation, encouraging his friends to join him in "tak[ing] a stand" against Saini.
In May 1995, Sharma received a call from Saini himself. Saini told Sharma to stop investigating the disappearance of the men, "otherwise you will find yourself in a much bigger problem than them." Saini threatened to "eliminate" Sharma and his family if Sharma "ask[ed] any further question[s]." Afraid for his family's safety, Sharma moved his wife and children more than 300 miles away to Jaipur.
In January 1997, Sharma traveled to South Korea for a week to pursue a business opportunity, leaving his family behind in Jaipur. Sharma testified that he had the resources to relocate his family outside of India. But he instead decided to return to India because the business opportunity in South Korea failed to "mature[ ]," and he was unable to "get some kind of settlement" there.
In March 1997, Sharma organized a protest of Saini outside the Punjab Parliament building, which a group of business and political associates attended. Sharma spoke to the crowd about Saini's corruption and called for his suspension from the government. Within 45 minutes, the police broke up the protest, beating attendees with batons and chasing them away. Sharma does not specifically claim he was physically injured by police during that encounter.
A few days later, the police came to Sharma's office and accused him of loaning money to terrorists. They demanded his files, but Sharma refused. An officer "beat" and "slapped" Sharma with a baton. The officer then told Sharma that he was "finished" and had "made a big mistake crossing paths with" Saini.
The officers took Sharma's files, tied Sharma's hands, blindfolded him, and put him in a van. While driving, the officers made veiled threats, saying things like, "now we will show you how we work," and "do not worry about your family[;] we know they are in Jaipur." The van took Sharma to a facility where Sharma was locked in a room, still bound. Sharma was kept in the room all night. Officers would intermittently enter to "verbally abuse" him, "beat" and "slap" him, and "shove [him] around."
The next day, a police inspector came into the room where Sharma was being held and threatened that "worse could happen" if Sharma "continued to raise [his] voice against" Saini. The inspector held a phone to Sharma's ear. Saini told Sharma to "worry about [his] family," and if he continued to investigate Vinod's disappearance, he "would be dealt with in a manner like others."
Saini hung up, and the inspector informed Sharma that Saini had "taken pity on" him and that Saini was letting him go. But Sharma was warned not to investigate Saini or he "would [be] permanently finished," with the inspector adding that "[w]e know that your family is in Jaipur." Sharma was then put back in the van, driven around, and pushed out on the side of the road. In total, Sharma's captivity lasted around 18 to 19 hours. He does not identify any physical injuries resulting from this ordeal.
Sharma returned home but his business was ruined because the police had stolen his files and instructed Sharma's clients not to pay back their loans. Sharma was too afraid to leave the house after the encounter. He also continued to receive "occasional" anonymous phone calls warning him that his "actions were being watched."
Sharma decided he would leave India. In July 1997, Sharma received his visitor visa for the United States and departed India. After he left India, the police "initially harassed" Sharma's wife (who was still in India), asking her about Sharma's whereabouts and warning her "not to speak up or take any action." Sharma's wife showed the police proof that Sharma was in the United States. They responded that "it was best that [Sharma] stay away and not return to India."
In spring 2012, Saini was promoted to Director General of Police Punjab, "the highest post of the police force of a state." Around the same time, Indian authorities pressed forward with legal action against Saini related to the Vinod disappearance. Meanwhile, two policemen visited Sharma's wife and "threatened her[,] saying that it was best [Sharma] stays out and not return or else [he] would not be spared."
Sharma filed his application for asylum, withholding of removal, and CAT relief on May 29, 2012, after living in the United States for approximately 15 years. As of Sharma's hearing before the IJ, Saini still worked for the Punjabi government as Chairman of the Punjab Police Housing Corporation. Although Sharma's two daughters live in Australia, Sharma's wife splits her time between India and Australia, with extended visits to the United States as well. Sharma testified that his wife travels back and forth between India, Australia, and this country without incident. Sharma's son still lives in India full-time. None of Sharma's family members has ever been physically harmed.
The IJ found Sharma's application timely, given changed circumstances, and his testimony "generally" credible, even though "portions of his story are implausible." The IJ then concluded that Sharma's past harm did not rise to the level of persecution, noting that there was no evidence of the severity of Sharma's injuries or him receiving medical care; his detention was "less than one full day"; and, although Sharma's business was ruined, there was no evidence that Sharma "was unable to continue making a living."
The IJ also found that Sharma was unlikely to suffer future persecution. She noted that neither Sharma's wife nor their son has ever been harmed, despite both continuing to reside in India, and that more than twenty years had passed since Sharma's last encounter with Saini.
The IJ rejected Sharma's CAT claim for largely the same reasons she denied asylum and withholding of removal. And the IJ denied voluntary departure "as a matter of discretion," based on Sharma's 2011 conviction for driving under the influence and a lack of evidence of Sharma's ties to the United States.
The Board of Immigration Appeals (BIA) adopted and affirmed the IJ's decision and dismissed the appeal. The BIA agreed that Sharma failed to establish past persecution. It also agreed that Sharma failed to establish a well-founded fear of future persecution, noting specifically the family's "travel history" and that Sharma's wife and son continue to reside in India unharmed. The BIA also affirmed the IJ's rejection of Sharma's CAT claim and the discretionary denial of voluntary departure. Sharma then filed this timely petition for review.
Because the BIA agreed with the IJ's reasoning and added some of its own, we review the BIA's decision and those parts of the IJ's decision upon which it relied. See Duran-Rodriguez v. Barr , 918 F.3d 1025, 1027–28 (9th Cir. 2019).
To be eligible for asylum, a petitioner has the burden to demonstrate a likelihood of "persecution or 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). To be eligible for withholding of removal, the petitioner must discharge this burden by a "clear probability."
Alvarez-Santos v. INS , 332 F.3d 1245, 1255 (9th Cir. 2003) ; see 8 U.S.C. § 1231(b)(3).
One way to satisfy this burden is by showing past...
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