Sinha v. Holder

• Decision Date: 10 February 2009
• Docket Number: No. 04-73843.,04-73843.
• Citation: 556 F.3d 774
• Parties: Navin SINHA; Priti Praveena Singh, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

556 F.3d 774

Navin SINHA; Priti Praveena Singh, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 04-73843.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 11, 2008.

Filed February 10, 2009.

Joseph J. Siguenza, Esq., Attorney (argued), and Ashwani K. Bhakhri, Esq., Attorney (briefed), Law Offices of Ashwani K. Bhakhri, Burlingame, CA, for the petitioners.

W. Daniel Shieh, Esq., Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC (argued and briefed); Margot Nadel, Esq., Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, Terri J. Scadron, Assistant Director, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, Francis W. Fraser, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, Gregory G. Katsas, Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, DC, and Peter D. Keisler, Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, DC, were on the briefs, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A079-286-957, A079-286-958.

Before: A. WALLACE TASHIMA, MARSHA S. BERZON and N. RANDY SMITH, Circuit Judges.

BERZON, Circuit Judge:

Petitioner Navin Sinha and his wife, Petitioner Priti Praveena Singh, are ethnic Indians and citizens of Fiji. In 2001, Sinha submitted an application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) for himself and, derivatively, his wife Singh.¹ The Immigration Judge (IJ) denied all relief, and the Board of Immigration Appeals (BIA) adopted and affirmed that decision. Petitioners appear before this Court to challenge the BIA's dismissal of their appeal, and also to contest the BIA's denial of their subsequently-filed motion to reopen, based on changed country conditions. We grant the petition for review on the removal order and order the motion to reopen held in abeyance.

I. BACKGROUND

Sinha's claims for asylum and for withholding of removal are based upon his alleged past persecution and his fear of future persecution on account of his ethnicity as an Indo-Fijian.² He also seeks relief under the CAT because he fears being tortured if he is returned to Fiji.

As Sinha's testimony and country-conditions evidence show, over the past twenty years Fiji's ethnic Indian minority has been treated harshly and, at times, violently by the native Fijian majority. There has been longstanding tension between the two groups, exacerbated by an uneven distribution of power and wealth. The ethnic Indian minority (whom we call "Indo-Fijians") have controlled most of the country's private businesses, while the native Fijian majority (whom we call "native Fijians") have maintained a monopoly on land-ownership and have largely controlled the military and the national government. In 1987 and again in 2000, racial tensions culminated in coups in which ethnic Fijians, backed by the military, ousted sitting Indo-Fijian-dominated governments and took power. Both coups occasioned widespread popular violence against individuals of Indo-Fijian ethnicity. We have recognized the "severe mistreatment [Indo-Fijians] 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 Cir.1996).

Sinha testified to four separate incidents of mistreatment that he personally experienced, which he claims cumulatively constitute past persecution or, in the alternative, contribute to his showing of a well-founded fear of future persecution.

First, in 1990, when Sinha was seventeen years old, a group of native Fijians approached him and his friend after soccer practice. The native Fijians accused Sinha and his friend of cursing at them and proceeded to beat them, causing Sinha's face to bleed and giving him a black eye.

Second, in May 2000 — just after the coup in which native-Fijian supremacist George Speight deposed the country's first Indo-Fijian prime minister and attempted to take power himself — petitioners' apartment was stoned by a native Fijian mob. The mob also destroyed petitioners' car, smashing all the windows, ripping the seats, stealing the stereo, and vandalizing the dashboard with a knife. Sinha testified that the apartments of other Indo-Fijian residents on his block were also stoned.

Third, at 3:00 one morning in June 2000, two native Fijians broke into petitioners' apartment while they were sleeping. One of the burglars held a knife to Sinha's throat and restrained his wife, while the other went through their drawers, ultimately stealing $2,300 in cash and jewelry. As the burglars left the apartment, they shouted that petitioners should "go[ ] back to India." Although Sinha reported the incident to the police, the police officers with whom he spoke told him "that nothing was going to be done because it was just a formality to take a report." The police officers, native Fijians, also told Sinha that he and Singh "were not supposed to be in Fiji anyway and that [they] had no legal rights." Later on, when Sinha went to the police station to follow up on the matter, an officer told him that the station had lost the report.

Fourth and finally, in September 2000, Sinha was attacked and robbed by three native Fijian men as he was walking toward a bus stop, having just left the bank where he cashed his paycheck. During the attack, the native Fijians called Sinha an "Indian dog" and berated him with the slogan, "Fiji is for Fijians only." Sinha sustained injuries on his face and back from the beating, and he required medical care as a result. Sinha reported the incident to the police, but, as far as he is aware, no investigation was ever conducted.

Sinha also testified that, in addition to the incidents he personally experienced, his wife and several other family members and Indo-Fijian friends have been attacked and harassed by native Fijians. In particular, in August 2000, Sinha's wife, Singh, was confronted by five native Fijian youths who were members of a gang called the "shoe-shine boys." According to Sinha's testimony, the shoe-shine boys formed their gang after the May 2000 coup, and their goal was to "shine" Fiji by ridding it of its Indian minority population. The youths yelled racial slurs at Singh and chased her down the street as she was leaving the local grocery store. Additionally, Sinha testified that his mother and uncles have been forced out of their leaseholds by native landowners.³

In October 2000, petitioners were admitted to the United States on tourist visas. Before the expiration of those visas, Sinha submitted an application for asylum, withholding of removal, and relief under the CAT, seeking derivative relief for his wife. On June 25, 2001, Sinha and Singh were served with a Notice to Appear, and removal proceedings commenced. At their merits hearing on June 10, 2003, the IJ made no adverse credibility finding, but determined that Sinha's account of his experiences in Fiji did not demonstrate past persecution or support a well-founded fear of future persecution. The IJ therefore denied Sinha's application for asylum and withholding of removal. The IJ also denied relief under the CAT. On appeal, the BIA adopted and affirmed the IJ's decision. Petitioners timely filed a petition for review with this Court (No. 04-73843).

While that petition for review was pending, in December 2006, Fiji experienced yet another coup. In January 2007, petitioners filed a motion to reopen with the BIA, contending that the coup and resulting political instability in Fiji represented a material change in country conditions sufficient to merit reopening their removal proceedings under 8 C.F.R. § 1003.2(c)(3)(ii). The BIA denied the motion to reopen. Petitioners filed a timely petition for review of that decision with this Court (No. 07-72289), which we consolidated with their pending petition for review.

II. ANALYSIS

A. Asylum and withholding of removal

We consider first whether the IJ and BIA erred in determining that Sinha was ineligible for asylum and withholding of removal. Because the BIA "adopt[ed] and affirm[ed]" the IJ's decision without adding any commentary of its own, we treat the IJ's decision as that of the BIA. See Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir.2002). In reviewing the IJ's findings of fact underlying his decision that Sinha did not establish past persecution, we apply the substantial evidence standard. See Hoque v. Ashcroft, 367 F.3d 1190, 1194(9th Cir.2004). Throughout, because the IJ made no adverse credibility finding, we take Sinha's testimony as true. See Vukmirovic v. Ashcroft, 362 F.3d 1247, 1251 (9th Cir. 2004).

The Ninth Circuit has defined persecution as "the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive." Fisher v. INS, 79 F.3d 955, 961 (9th Cir.1996) (en banc) (internal quotation marks and citation omitted). Persecution is an "extreme concept [and] does not include every sort of treatment our society regards as offensive." Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.1995) (internal quotation marks and citation omitted). To establish past persecution, "an applicant must show: (1) an incident, or incidents, that rise to the level of persecution; (2) that is `on account of' one of the statutorily-protected grounds; and (3) is committed by the government or forces the government is either `unable or unwilling' to control." Navas v. INS, 217 F.3d 646, 655-56 (9th Cir.2000).

Here, the IJ held that Sinha failed to demonstrate that the harm he suffered between May and September 2000 was "persecution" within...