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Ninth Circuit:
Persecution May Be Shown by Physical Harm Plus Threats
Opinion Says Physical Intimidation in Man’s Home Nation, Based on Sikh Party Activities, Is Sufficient to Avert Deportation; Bumatay Dissents, Says Conflicting Case Law Creates a ‘Choose-Your-Own Adventure’ Situation
By a MetNews Staff Writer
The Ninth U.S. Court of Appeals held Friday that threats of physical harm followed by an actual beating may qualify as “persecution” under current immigration jurisprudence.
The decision comes in a challenge to removal proceedings by a Sikh man who fled India due to death threats and an assault based on his participation in political activities of a party supporting an independent state for members of his religious group.
The Board of Immigration Appeals (“BIA”) on Feb. 8, 2023 dismissed the appeal of Sandeep Kumar whose application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) was denied by an immigration judge despite findings that Kumar was credible.
Kumar asserts that he was repeatedly threatened in 2017 by members of the Bharatiya Janata Party (“BJP”) due to his activities supporting the Shiromani Akali Dal Mann Party and was beaten by a crowd in October 2017. In November, he left India, at the urging of his family, and entered the U.S. in January 2018.
Senior Federal Circuit Judge Evan J. Wallach, sitting by designation, wrote the opinion remanding the case to the BIA for a determination as to whether Kumar has established the other elements required for asylum—that the persecution was committed by the government and was on account of religious or political beliefs. Circuit Judge Jacqueline H. Nguyen joined in the opinion.
Conflicting Opinions
Circuit Judge Patrick J. Bumatay dissented, opining that the court failed to give proper deference to the BIA’s decision. He wrote:
“The Ninth Circuit’s caselaw is a bit of a ‘choose-your own-adventure’ when it comes to what constitutes ‘persecution’ under immigration law. We’ve had so many contradictory opinions that it’s quite easy to find a case supporting nearly any position….
“Given the great deference we owe immigration courts, when, as here, the Board of Immigration Appeals…faithfully followed our precedent (at least one version of it), it should not be second guessed.”
Past Harm
To be eligible for asylum, a petitioner has the burden to demonstrate a likelihood of persecution based on his or her race, religion, nationality, membership in a particular social group, or political opinion. Proving past persecution based on the protected categories gives rise to a presumption of future oppression.
Courts look to the cumulative effect of all incidents to determine if the treatment rises to the level of persecution.
Wallach noted that the BIA relied on a case declining to find persecution based on a beating by police that was followed by vague, anonymous threats over a period of years. Noting that the death threats made against Kumar were neither vague nor anonymous and were followed by a beating resulting in a two-day hospital stay, Wallach said:
“The threats Kumar received were ‘connected’ to the physical harm he experienced,…which was interrupted only when a crowd gathered to witness what the BJP members were doing to Kumar. Indeed, those threats were repetitive of similar threats uttered by some of the same BJP members only the month before.”
Something More
The judge said case law has established that persecution may be found when incidents have involved physical harm plus something more, such as credible death threats. Wallach pointed out that what matters in assessing the sufficiency of a threat to establish persecution is whether the group making it has the ability to carrying it out.
Looking to the facts of Kumar’s petition, he said:
“In the span of just over forty days, BJP members confronted and threatened Kumar twice while holding wooden sticks and attempting to recruit him either during or soon after his Mann Party activities. Both times, the BJP members fled not because they were unable or unwilling to make good on their threats, but instead because crowds emerged.
The first time, they verbally threatened Kumar, and, the second time, they physically assaulted Kumar and threatened to shoot him the next time they saw him engaging in his Mann Party activities. Here, the record shows that BJP members have the will and ability to carry out the death threat against Kumar.”
He said another important consideration is whether the threat leaves the petitioner with no choice but to forsake his political or religious beliefs. As to this element, Wallach wrote:
“Although Kumar seeks asylum based on his political opinion (and not his religious beliefs), we recognize that Kumar credibly testified that Mann Party members are Sikhs, while BJP members are Hindus who seek to convert everyone to Hinduism.
“Based on Kumar’s testimony, Mann Party members, as Sikhs, represent an intersection of political and religious minority groups in India, such that changing their political party requires a religious conversion, implicating both political and religious beliefs.”
He remarked that reports submitted to the court “establish[] that the BJP, as a Hindu nationalist party, targets Sikhs, that Mann Party members are Sikhs, and that Kumar is both a Sikh and Mann Party member.”
The judge said in a footnote that Kumar must also establish that the persecution was committed by the government and was on account of protected grounds, such as religious or political beliefs, issues which were not addressed by the courts below. He wrote:
“Kumar’s past harm rises to the level of persecution because it includes physical harm plus a credible, ‘connected’ death threat…along with prior threats by some of the same BJP members. Accordingly, we remand Kumar’s petition to allow the BIA to complete its past-persecution analysis.”
The court also remanded for reconsideration of the withholding of removal and CAT petitions in light of the finding that Kumar’s treatment amounted to persecution.
Bumatay’s Dissent
Bumatay wrote:
“While we’ve often paid lip service to the extreme nature of ‘persecution,’ some of our cases hold otherwise. So, we’ve basically been able to pick any preferred ending when determining whether a petitioner experienced past persecution. Today, the majority adds another chapter. It says that any physical harm connected to any threat is enough to establish persecution. Never mind that case after case finds no persecution in similar circumstances.”
He added that “[t]he resulting lack of clarity is a disservice to both the petitioners and immigration courts trying to follow our rules.”
Under these circumstances, he declared, “there’s no way that we are compelled to conclude that the BIA erred here when it simply followed our caselaw.”
The case is Kumar v. Garland, 23-308.
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