20-2689 Kumar v. Garland BIA
Sponzo, IJ
A208 200 200
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 10th day of January, two thousand twenty- 5 three. 6 7 PRESENT: 8 WILLIAM J. NARDINI, 9 BETH ROBINSON, 10 ALISON J. NATHAN, 11 Circuit Judges. 12 _____________________________________ 13 14 RAHUL KUMAR, AKA RAHUL, 15 Petitioner, 16 17 v. 20-2689 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Jaspreet Singh, Esq., Jackson 25 Heights, NY. 26 27 FOR RESPONDENT: Brian Boynton, Acting Assistant 28 Attorney General; Matthew B.
1 George, Senior Litigation Counsel; 2 Patricia E. Bruckner, Trial 3 Attorney, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 DC. 7 8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby 10 ORDERED, ADJUDGED, AND DECREED that the petition for review 11 is GRANTED. 12 Petitioner Rahul Kumar, a native and citizen of India, 13 seeks review of a July 21, 2020, decision of the BIA affirming 14 a September 7, 2018, decision of an Immigration Judge (“IJ”) 15 denying Kumar’s application for asylum, withholding of 16 removal, and relief under the Convention Against Torture 17 (“CAT”). In re Rahul Kumar, No. A208 200 200 (B.I.A. July 18 21, 2020), aff’g No. A208 200 200 (Immig. Ct. N.Y. City Sept. 19 7, 2018). We assume the parties’ familiarity with the 20 underlying facts and procedural history. 21 We have reviewed both the BIA’s and IJ’s opinions. See 22 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We 23 review factual findings for substantial evidence and 24 questions of law, including whether the BIA engaged in 25 improper factfinding, de novo. Paloka v. Holder, 762 F.3d 26 191, 195 (2d Cir. 2014); Padmore v. Holder, 609 F.3d 62, 67
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1 (2d Cir. 2010). “[T]he administrative findings of fact are 2 conclusive unless any reasonable adjudicator would be 3 compelled to conclude to the contrary.” 8 U.S.C. 4 § 1252(b)(4)(B). 5 I. BIA’s Factfinding 6 Kumar testified that the police detained and beat him, 7 and members of the Badal Party assaulted him because he 8 supported the Congress Party. The IJ credited Kumar’s 9 testimony in its entirety, but found that Kumar’s beating and 10 detention by the police did not rise to the level of 11 persecution, his subsequent assault by Badal Party members 12 did not rise to the level of persecution, and he did not 13 demonstrate that his fear of future harm was objectively 14 reasonable. The BIA affirmed the IJ’s decision and relied on 15 additional grounds. We decline to consider those additional 16 grounds because the BIA may not engage in factfinding on 17 appeal: “The Board will not engage in de novo review of 18 findings of fact determined by an immigration judge. Facts 19 determined by the immigration judge, including findings as to 20 the credibility of testimony, shall be reviewed only to 21 determine whether the findings of the immigration judge are 22 clearly erroneous.” 8 C.F.R. § 1003.1(d)(3)(i).
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1 Accordingly, we address only the IJ’s conclusion that Kumar 2 failed to show past harm rising to the level of persecution 3 and do not consider the BIA’s findings that he did not 4 establish a nexus to a protected ground, that the Badal Party 5 members were not state actors, and that the government would 6 not be unable or unwilling to control the Badal Party. We 7 note that the nexus determination—that Kumar was arrested 8 because of suspected involvement with drugs—relies, in part, 9 on a finding that before his arrest he visited a friend who 10 was using drugs; however, that visit appears to have occurred 11 after Kumar’s arrest. 12 II. Past Persecution 13 “The BIA has defined persecution as a threat to the life 14 or freedom of, or the infliction of suffering or harm upon, 15 those who differ in a way regarded as offensive.” Baba v. 16 Holder, 569 F.3d 79, 85 (2d Cir. 2009) (quotation marks 17 omitted). “Where an alien, because of [his] membership in a 18 statutorily protected class, suffers physical abuse and 19 violence at the hands of government agents, . . . such 20 evidence, if credible, may preclude a finding that the conduct 21 is mere harassment that does not as a matter of law rise to 22 the level of persecution, for violent conduct generally goes
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1 beyond the mere annoyance and distress that characterize 2 harassment.” Id. (quotation marks and brackets omitted). 3 Although we have “never held that a beating that occurs within 4 the context of an arrest or detention constitutes persecution 5 per se,” Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 6 2011), the agency “must . . . be keenly sensitive to the fact 7 that a ‘minor beating’ or, for that matter, any physical 8 degradation designed to cause pain, humiliation, or other 9 suffering, may rise to the level of persecution if it occurred 10 in the context of an arrest or detention on the basis of a 11 protected ground,” Beskovic v. Gonzales, 467 F.3d 223, 226 12 (2d Cir. 2006). The agency also must consider the harm 13 suffered in the aggregate. See Poradisova v. Gonzales, 420 14 F.3d 70, 79–80 (2d Cir. 2005). “[W]e require a certain 15 minimum level of analysis from the IJ and BIA opinions . . . 16 if judicial review is to be meaningful” and “require some 17 indication that the IJ considered material evidence 18 supporting a petitioner’s claim.” Id. at 77. 19 We remand for the agency to more fully address whether 20 the beatings Kumar suffered rise to the level of past 21 persecution. The agency considered the severity of the harm 22 without making clear findings regarding the reason for
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1 Kumar’s arrest. The record reflects that Kumar’s father 2 received a call that Kumar would be “framed in a drug problem” 3 if he did not leave the Congress Party and join the Badal 4 Party. The police subsequently arrested Kumar at his home, 5 brought him to the police station, held him overnight, and 6 punched, kicked, and beat him with belts on three occasions. 7 During that time the police pressured him to join the Badal 8 Party. The IJ found that the beatings were not persecution 9 because Kumar “did not require medical attention for the cuts 10 and bruises that he sustained.” This is a mischaracterization 11 of Kumar’s statement that he was afraid to seek medical help, 12 and the IJ did not make clear findings as to whether Kumar 13 was arrested because of his political affiliation. If he 14 was, then even a minor beating may be enough to establish 15 past persecution. See Baba, 569 F.3d at 85; Beskovic, 467 16 F.3d at 226. 17 Kumar further alleged that Badal Party members hit him 18 with their car, then kicked, punched, and threatened to kill 19 him. The IJ found that this incident did not rise to the 20 level of persecution because Kumar stated that he did not 21 require professional medical attention, he suffered no broken 22 bones, and did not require stitches. Again, the IJ relied
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1 solely on the level of injury, without considering the context 2 of the assault or addressing this assault in connection with 3 the prior arrest. See Beskovic, 467 F.3d at 226; Poradisova, 4 420 F.3d at 79–80. 5 In sum, we can reach no conclusion as to the ultimate 6 success of Kumar’s claim and remand for the agency to further 7 consider his claim and make all necessary findings. Because 8 the burden of proof as to future persecution turns on the 9 agency’s conclusion regarding past persecution, we do not 10 reach the agency’s finding that Kumar failed to establish a 11 well-founded fear of future persecution. See 8 C.F.R. 12 § 1208.13(b)(1). 13 For the foregoing reasons, the petition for review is 14 GRANTED, the BIA’s decision is VACATED, and the case is 15 REMANDED for further proceedings consistent with this order. 16 All pending motions and applications are DENIED and stays 17 VACATED.
18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, 20 Clerk of Court