Kamal Narayan v. John Ashcroft, Attorney General

384 F.3d 1065, 2004 U.S. App. LEXIS 19364, 2004 WL 2062555
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 16, 2004
Docket03-70199
StatusPublished
Cited by40 cases

This text of 384 F.3d 1065 (Kamal Narayan v. John Ashcroft, Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Kamal Narayan v. John Ashcroft, Attorney General, 384 F.3d 1065, 2004 U.S. App. LEXIS 19364, 2004 WL 2062555 (9th Cir. 2004).

Opinion

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.

I. BACKGROUND

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.

*1067 In 1988, ethnic Fijians burglarized Na-rayan’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 Na-rayan’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.

II. DISCUSSION

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. *1068 1995) (citations omitted). We have also said that the cumulative effect of several incidents may constitute persecution. See Swrita v. INS, 95 F.3d 814, 819 (9th Cir.1996).

In Surita, we held that an Indo-Fijian woman who was robbed and repeatedly threatened, although never physically harmed, had suffered persecution within the meaning of the statute. Surita, 95 F.3d at 819-20. Similarly, in Chand v. INS, 222 F.3d 1066 (9th Cir.2000), we held that an Indo-Fijian was persecuted when he suffered physical abuse at the hands of ethnic Fijian soldiers and was robbed several times. Specifically, we said that “[pjhysical harm has consistently been treated as persecution,” and that this is especially true where “an applicant suffers such harm on more than one occasion. ...” Chand, 222 F.3d at 1073-74. In both Chand and Surita, the petitioners reported the incidents to the police, who did nothing to investigate their claims. Chand, 222 F.3d at 1070; Surita, 95 F.3d at 819.

Narayan was physically harmed on several occasions, repeatedly robbed, and he, too, was not aided by the police. Just as Surita and Chand suffered persecution, any reasonable fact-finder would also be compelled to find that the acts against Narayan cumulatively amounted to persecution.

A showing of past persecution raises a presumption of a well-founded fear of future persecution, which the government may rebut by showing that country conditions have changed so that the asylum applicant’s fear of future persecution is no longer reasonable. See 8 C.F.R. § 208.13(b)(1). Because the IJ did not apply the regulatory presumption, we remand. See INS v. Ventura, 537 U.S. 12, 18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

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