NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 17 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
SANDEEP KUMAR, No. 23-308 Agency No. Petitioner, A216-274-852 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted March 27, 2024 San Francisco, California
Before: WALLACH, NGUYEN, and BUMATAY, Circuit Judges.** Dissent by Judge BUMATAY.
Sandeep Kumar, a native and citizen of India, petitions for review of the
final order of the Board of Immigration Appeals (BIA), which dismissed his appeal
of the decision by the Immigration Judge (IJ) to deny his application for asylum,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Evan J. Wallach, United States Circuit Judge for the Federal Circuit, sitting by designation. withholding of removal, and protection under the Convention Against Torture
(CAT). Among other things, the BIA agreed with the IJ’s conclusion that Kumar
did not establish that his past harm, when cumulatively considered, rose to the
level of persecution. Specifically, the BIA determined that Kumar’s experience of
threats and a physical beating from members of an opposing political party did not
constitute persecution when considered cumulatively, because Kumar failed to
adequately show that the threats caused him significant actual suffering or harm.
We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and
remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND1
Kumar practices the Sikh religion. Prior to his arrival in the United States,
he resided in Punjab, India. On January 4, 2017, Kumar joined the Shiromani
Akali Dal Mann Party (“Mann Party”), which, as we have previously recognized,
“advocates for the creation of Khalistan, a sovereign state for the Sikh people.”
Kaur v. Wilkinson, 986 F.3d 1216, 1219 (9th Cir. 2021). We have also previously
recognized that “Mann Party members have faced persistent harassment,
intimidation, threats, and violence in Punjab,” the region where Kumar resided. Id.
The Bharatiya Janata Party (“BJP”) is a major Indian political party that opposes
1 The factual assertions here primarily stem from the BIA’s final order and Kumar’s credible testimony given during his removal hearing on January 10, 2020.
2 23-308 the Mann Party. Singh v. Garland, 97 F.4th 597, 600 (9th Cir. 2024) [hereinafter
Singh]. According to Kumar, the BJP is the “central government” that suppresses
the Mann Party in Punjab and seeks to convert everyone to Hinduism. Notably,
BJP members sought to convert Kumar and his family members to Hinduism by
demanding that they change political parties from the Mann Party to the BJP.
Kumar requests political asylum on the grounds that he has suffered past
persecution at the hands of the BJP for engaging in contrary political activity with
the Mann Party in Punjab.
On September 1, 2017, while Kumar was hanging Mann Party posters for an
organized rally, four BJP members approached in a vehicle and stopped near him.
The BJP members began ripping the posters down, and as they did, they told
Kumar to leave his party to join theirs and to sell drugs for them. Kumar said no.
The BJP members held wooden sticks and were ready to beat Kumar, but they ran
away when people from nearby homes came outside. Although one of them
threatened to kill Kumar if he hung posters again, Kumar did not report this
confrontation to the police because he thought it was only a threat at the time.
On October 12, 2017, Kumar was riding home on a motorcycle after
working at a camp at which the Mann Party talked to villagers about assisting poor
women with their weddings. As Kumar stopped his motorcycle, four BJP
members, including some of the same men who had previously accosted him,
3 23-308 approached him in their vehicle. The four men questioned Kumar as to why he
failed to heed their earlier threats and demands that he leave the Mann Party. Once
again, Kumar replied that he could not leave his party. This time, the BJP
members threw Kumar off his motorcycle onto his side and began attacking him.
They first punched Kumar twice, then one man kicked him while the rest beat
Kumar with wooden sticks for approximately two to three minutes.2 Kumar’s cries
and screams attracted a crowd, so the four BJP members threatened Kumar that “if
we see you doing this next time[,] we will shoot you,” as they fled.
After this beating, Kumar spent two days in the hospital receiving treatment
for the injuries he suffered to his knees, forehead, and back. Kumar then attempted
to report this second confrontation with the BJP members at a nearby police station
on two occasions. Initially, Kumar was ignored at the station when he went alone.
Then, when he returned with his father, Kumar waited at least five hours to speak
with a senior officer, who threatened Kumar instead of taking down the report.
The officer then told Kumar, “oh, are you crazy, you’re going to file a complaint
against the government?” The senior officer advised Kumar not to pressure them,
warning Kumar that if he did, the police “will file a false case against you and put
you in.” The police requested that Kumar leave the station. Alarmed by the police
2 At argument, Kumar’s counsel was asked whether the “sticks” referred to tree branches or batons, to which, Kumar’s counsel clarified, “likely referring to batons . . . .”
4 23-308 department’s failure to listen to Kumar’s complaint, Kumar’s parents spoke to
relatives, who recommended that Kumar leave India and go to the United States.
As a twenty-one-year-old, Kumar left India on November 7, 2017. He then
traveled through various countries, and entered the United States on January 23,
2018.
After Kumar fled India, BJP members harassed his family during the
springtime election season, demanding that his brother and father work for the BJP
and threatening to kill them if they did not. BJP members continued to threaten his
family, asking for Kumar’s whereabouts and telling them that Kumar will be killed
whenever found. Kumar fears that if he returns to India, the BJP, acting as the
central government, will find him because any potential landlord will verify his
identification with the central police, who in turn will go to his neighborhood
police station in Punjab.3 Kumar intends to continue his Mann Party activities if he
is forced to return to India, and he believes that neither the Indian police nor
government will protect him from the BJP.
On January 10, 2020, the IJ denied Kumar’s application for asylum and
withholding of removal under the Immigration and Nationality Act (“INA”), as
3 Cf. Singh, 97 F.4th at 601 (“[The petitioner] fears that BJP . . . members will kill him if he returns to India because BJP members live all over India and he will have to provide identification to rent lodgings, which would trigger a police check and reveal his whereabouts.”).
5 23-308 well as his request for CAT protection. Kumar appealed the IJ’s decision to the
BIA. On February 8, 2023, the BIA dismissed Kumar’s appeal, and on March 6,
2023, Kumar timely petitioned for review of the BIA’s final order.
II. STANDARD OF REVIEW
Except to the extent the BIA expressly adopts the IJ’s opinion, we limit our
review to the BIA’s decision, Singh v. Garland, 57 F.4th 643, 651 (9th Cir. 2023)
[hereinafter Singh v. Garland], reviewing the BIA’s “legal conclusions de novo
and its factual findings for substantial evidence,” Aden v. Wilkinson,
989 F.3d 1073, 1079 (9th Cir. 2021) (citation omitted). “A factual finding is not
supported by substantial evidence when any reasonable adjudicator would be
compelled to conclude to the contrary based on the evidence in the record.” Id.
(internal quotation marks and citation omitted). Considering only the BIA’s relied-
upon grounds, we must remand “[i]f we conclude that the BIA’s decision cannot
be sustained upon its reasoning[.]” Andia v. Ashcroft, 359 F.3d 1181, 1184
(9th Cir. 2004) (per curiam).
III. DISCUSSION
A. Asylum
1. Past Persecution
Kumar argues that the BIA improperly concluded that his past harm did not
rise to the level of persecution. “To be eligible for asylum, a petitioner has the
6 23-308 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.’” Sharma v. Garland, 9 F.4th 1052, 1059
(9th Cir. 2021) (quoting 8 U.S.C. § 1101(a)(42)(A)). Demonstrating past
persecution “gives rise to a rebuttable presumption of future persecution,” and
proving it requires a petitioner to “show, among other elements, that his treatment
rises to the level of persecution.” Id. at 1060 (cleaned up).
As the BIA acknowledged, after Kumar joined the Mann Party, BJP
members “threatened him and told him to join” their political party on September
1, 2017, and on October 12, 2017, BJP members punched, kicked, and hit him with
wooden sticks for two to three minutes, after which Kumar received hospital
treatment for two days. The “key question is whether, looking at the cumulative
effect of all the incidents that a Petitioner has suffered, the treatment he received
rises to the level of persecution.” Id. at 1061 (citation omitted). The BIA and IJ
both concluded that Kumar failed to satisfy this standard. We disagree.
We first observe that the BIA properly avoided express reliance on either Gu
v. Gonzales or Hoxha v. Ashcroft because unlike Kumar, the petitioners in those
cases did not suffer simultaneous death threats and physical abuse. See Gu v.
Gonzales, 454 F.3d 1014, 1017–18 (9th Cir. 2006) (finding no persecution where
petitioner suffered physical harm but no death threat); Hoxha v. Ashcroft,
7 23-308 319 F.3d 1179, 1182 (9th Cir. 2003) (finding no persecution where “one incident
of physical violence” was “not connected with any particular threat” of death).
However, the BIA did err in its reliance on Sharma. Observing that the petitioner
in Sharma “did not establish past persecution where he was detained and beaten by
police with a baton and received threats over a period of years,” see Sharma,
9 F.4th at 1063–64, the BIA concluded that Kumar did not adequately show that
the threats he experienced caused “significant actual suffering or harm” so as to
cumulatively constitute persecution, see id. at 1062 (“That is because ‘[t]hreats
themselves are sometimes hollow and, while uniformly unpleasant, often do not
effect significant actual suffering or harm.’” (quoting Hoxha, 319 F.3d at 1182));
but see Kaur, 986 F.3d at 1227 (“Death threats alone can constitute
persecution[.]”). Yet, the nexus between the physical harm and the death threat
matters, and unlike the petitioner in Sharma, Kumar experienced both in tandem.
See Sharma, 9 F.4th at 1063–65.
In Sharma, the petitioner faced years of unfulfilled “anonymous and vague”
threats, which did not seem to affect the petitioner’s behavior, as he encouraged
friends to join his ongoing public investigation against a police senior
superintendent and organized a protest. Id. at 1064. The year after the police
senior superintendent threatened to “eliminate” him and his family, the petitioner
went abroad “for a business opportunity . . . and later willingly returned.” Id. at
8 23-308 1058, 1064 (emphasis added). Then, during a one-time detention, the petitioner
received “some physical abuse,” but he “was ultimately released with no indication
of injuries, serious or otherwise.” Id. at 1063. The threats Sharma received while
he was detained “did not lead to any further physical harm, substantial or
otherwise, against [him] or his family.” Id. at 1064; see also id. at 1058 (noting
that while under detention, the petitioner was physically harmed and “threatened
that ‘worse could happen’ if [he] ‘continued to raise [his] voice against’” the police
senior superintendent (second alteration in original)).
The “vague” and “unpleasant” threats in Sharma, 9 F.4th at 1064, are unlike
the specific death threats Kumar suffered, see Singh, 97 F.4th at 604 n.2 (“Even in
the absence of physical violence, we have consistently held that death threats alone
can constitute persecution.” (cleaned up)). The threats Kumar received were
“connected” to the physical harm he experienced, Aden, 989 F.3d at 1083–84 n.7,
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. See
Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (“We have been
most likely to find persecution where threats are repeated, specific and combined
with confrontation or other mistreatment.” (cleaned up)).
9 23-308 Moreover, in Aden v. Wilkinson, we recognized that although a “one-off
physical beating did not compel a finding of persecution,” “when the incidents
have involved physical harm plus something more, such as credible death threats,
we have not hesitated to conclude that the petitioner suffered persecution.”
989 F.3d at 1082. With respect to incidents rising to persecution, we conclude that
Aden is a strikingly similar case. In that case, two weeks after the petitioner
experienced a so-called “‘one-time incident’ involving a physical beating while
working at his brother’s theater[,]” the brother received the petitioner’s death threat
on a phone call. Id. at 1083. Here too, as Kumar was heading home after his
Mann Party work, BJP members physically beat him and contemporaneously
issued a credible death threat directly to him.4 Rejecting Kumar’s argument
otherwise, the BIA discounted the physical harm and credible death threats Kumar
experienced, while describing Kumar’s past harm as only “threats and one beating
by a group of BJP members requiring some medical treatment.” Simply put, the
BIA did not recognize that a credible, “connected” death threat, id. at 1083–84 n.7,
is the “something more” that establishes past persecution here, id. at 1082.
4 We find no authority to support the dissent’s implication that to demonstrate significant physical harm, the petitioner must show “permanent injuries,” “broken bones,” or “extensive medical treatment.” To the contrary, we have recognized that past persecution may be established when a petitioner is beaten with a baton and suffered blows causing a three-day hospitalization, even absent permanent injuries, broken bones, or an extended hospital stay. Bondarenko v. Holder, 733 F.3d 899, 909 (9th Cir. 2013).
10 23-308 In describing our caselaw as a “choose-your-own-adventure,” the dissent
attempts to recast the settled principle that the “past-persecution analysis is best
answered by comparing the facts of Petitioner’s case with those of similar cases.”
Singh v. Garland, 57 F.4th at 654 (cleaned up). Here, the closest cases remain
Aden and Singh v. Garland, because “[a]t bottom, those cases and this one involve
fundamentally the same story: The alien was targeted multiple times for his
political views, threatened (including with a death threat), assaulted (leaving
non-severe physical wounds), and forced to flee his home.” Id. at 660 (Miller, J.,
concurring).
We also note that “what matters, in assessing the sufficiency of the threat to
establish persecution, is whether the group making the threat has the will or the
ability to carry it out—not whether it is, in fact, carried out.” Aden, 989 F.3d at
1083 (cleaned up). 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
11 23-308 activities. Here, the record shows that BJP members have the will and ability to
carry out the death threat against Kumar.
“Another important consideration is whether the threat leaves the person
with no realistic choice but to conform to the persecutor’s way of life and forsake
other political or religious beliefs, or flee.” Id. Although Kumar seeks asylum
based on his political opinion (and not his religious beliefs), Mann Party members
are Sikhs, while BJP members are Hindus who seek to convert everyone to
Hinduism. 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.
Accordingly, Kumar would need to either flee or change his religious beliefs to
match his political ones, which are intertwined for both Mann Party members and
BJP members.
“The death threat[s] further left [Kumar] with the ‘bleak choice’ of
remaining steadfast in his way of life (and risking death) or succumbing to [BJP
members’] demand for conformity.” Id. at 1084. As in Aden, the “chain of events
reveals” that the BJP “intended to coerce” Kumar to “submit to its [] political and
religious order, and used offensive strategies,” including a credible death threat
connected to a beating, “to achieve this goal.” Id. Here, as in Aden, the record
also shows that BJP members “kept a close eye” and maintained a “lingering
12 23-308 interest” in Kumar, as evidenced by Kumar’s testimony that the BJP threatened his
family members, asked them about Kumar’s whereabouts, and told them that
Kumar would be killed whenever found. Id. at 1083–84; see also Singh, 97 F.4th
at 604 (concluding that the petitioner’s testimony supported a past-persecution
finding, where showing his family “experienced mistreatment from BJP” members
who “harassed his father for being a Mann [P]arty member and harassed his family
to discover [his] whereabouts”).
Moreover, “we have held that an asylum applicant’s claim of persecution is
further strengthened when evidence that the applicant was physically beaten and
threatened with his life is presented in conjunction with evidence of the country’s
‘political and social turmoil.’” Aden, 989 F.3d at 1083 (quoting Korablina v. INS,
158 F.3d 1038, 1045 (9th Cir. 1998)). In its final order, the BIA acknowledged the
IJ’s finding “that the record describes general corruption and political unrest in
India[.]” Indeed, the record evidence establishes 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. For example, the record includes
the U.S. Department of State’s Bureau of Democracy, Human Rights, and Labor’s
India 2018 Human Rights Report, which describes “reports that the government
and its agents committed arbitrary or unlawful killings,” and that human rights
issues in India include “[v]iolence and discrimination based on religious
13 23-308 affiliation[.]” Record evidence also indicates that according to 2001 census data,
although Sikhs represented a majority within Punjab, they were a minority group
in India, comprising less than two percent of the national population. The record
therefore demonstrates India’s political and social turmoil, see Aden, 989 F.3d at
1083, which is in accord with our “recogni[tion] in multiple cases that Mann Party
members have faced persistent harassment, intimidation, threats, and violence in
Punjab,” Singh, 97 F.4th at 604; see also id. at 603–06 (concluding that the record
compels the conclusion that a low-level Mann Party member’s suffered harm rose
to the level of persecution (applying Singh v. Garland, 57 F.4th at 653–55)).
Thus, the BIA’s finding is unsupported by substantial evidence because the
record of the “cumulative effect of all the incidents” compels the conclusion that
Kumar’s past harm rises to the level of persecution. Sharma, 9 F.4th at 1061. In
the context of India’s ongoing “political and social turmoil,” Aden, 989 F.3d at
1083–84, Kumar’s past harm rises to the level of persecution because it includes
physical harm plus a credible, “connected” death threat, id. at 1082–84 & n.7,
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
14 23-308 analysis.5 See Singh v. Garland, 57 F.4th at 653 (remanding for the
past-persecution analysis’s remaining components).
2. Well-Founded Fear of Future Persecution
On remand, if the BIA concludes Kumar’s suffered past persecution was
committed at the hands of his government, then he “will be presumed to have a fear
of future persecution.” Kaur, 986 F.3d at 1230; see also Singh, 97 F.4th at 606 (“If
a petitioner demonstrates past persecution on account of statutorily protected
grounds at the hands of individuals whom the government was unable or unwilling
to control, he is entitled to a presumption of a well-founded fear of future
persecution.”).
5 Kumar must establish that “the persecution was committed by the government, or by forces that the government was unable or unwilling to control,” and that “the persecution was on account of one or more protected grounds, such as political opinion.” Kaur, 986 F.3d at 1221 (cleaned up). Neither the BIA nor IJ addressed these remaining elements, so we decline to do so in the first instance. Nevertheless, we note that at argument, the Government’s counsel conceded that the BJP controls certain segments of India and, through a coalition, the national government. Moreover, Kumar credibly testified that the BJP suppresses the Mann Party in Punjab, seeks to convert everyone to Hinduism, and is the “central government.” See Singh, 97 F.4th at 600 (noting that the BJP, as one of “India’s major political parties,” opposes the Mann Party). Also, when Kumar went to a police station to report the BJP members, a senior officer there questioned his sanity for attempting to file a complaint “against the government[.]” The BIA should consider these facts when determining whether “the persecution was committed by the government, or by forces that the government was unable or unwilling to control . . . .” Kaur, 986 F.3d at 1221 (citation omitted).
15 23-308 Should Kumar “establish[] a well-founded fear of future persecution at the
hands of the government, a rebuttable presumption arises that the threat exists
nationwide.” Singh v. Whitaker, 914 F.3d 654, 661 (9th Cir. 2019) [hereinafter
Singh v. Whitaker] (citation omitted). In other words, “[t]he burden then shifts to
the government,” Singh, 97 F.4th at 606, to “show by a preponderance of the
evidence that the applicant either no longer has a well-founded fear of persecution
in the country of his nationality, or that he can reasonably relocate internally to an
area of safety,” Singh v. Whitaker, 914 F.3d at 659. “To meet this burden, the
government must demonstrate either a ‘fundamental change in circumstances’ or
that [Kumar] could ‘avoid future persecution by relocating to another part of
[India], and under all the circumstances, it would be reasonable to expect [Kumar]
to do so.’” Singh, 97 F.4th at 606 (second alteration in original) (quoting
Boer-Sedano v. Gonzales, 418 F.3d 1082, 1089 (9th Cir. 2005)). These are issues
appropriately determined by the BIA in the first instance.
B. Withholding of Removal
“To be eligible for withholding of removal, an applicant must show that the
evidence in the record demonstrates a ‘clear probability of persecution.’” Aden,
989 F.3d at 1085–86 (quoting Korablina, 158 F.3d at 1045); see also 8 U.S.C.
§ 1231(b)(3)(A) (“[T]he Attorney General may not remove an alien to a country if
the Attorney General decides that the alien’s life or freedom would be threatened
16 23-308 in that country because of the alien’s race, religion, nationality, membership in a
particular social group, or political opinion.”). “A clear probability exists if it is
‘more likely than not’ the person will be persecuted upon return.” Aden, 989 F.3d
at 1086 (quoting Korablina, 158 F.3d at 1046).
“The clear probability standard for withholding of removal is more stringent
than the well-founded fear standard for asylum because withholding of removal is
a mandatory form of relief.” Singh, 97 F.4th at 609. Here, the BIA concluded that
Kumar failed to meet the more stringent clear probability burden because it
determined he failed to meet the lower burden of asylum eligibility. See Sharma,
9 F.4th at 1066. Because we conclude that the BIA erred in its determination of
Kumar’s asylum claim, we also remand the withholding of removal claim. See,
e.g., Singh, 97 F.4th at 609 (“We therefore remand this claim to the BIA so that it
can determine whether [the petitioner] has established an asylum claim, and thus
benefits from a ‘presumption of entitlement to withholding of deportation.’”
(quoting Canales-Vargas v. Gonzales, 441 F.3d 739, 746 (9th Cir. 2006))).
C. CAT Protection
“To qualify for CAT protection, a petitioner must show,” Sharma, 9 F.4th at
1067, “it is more likely than not that he or she would be tortured if removed to the
proposed country of removal,” 8 C.F.R. § 208.16(c)(2). “[U]nlike withholding of
removal under the [INA], withholding of removal under CAT is based entirely on
17 23-308 an objective basis of fear; there is no subjective component to a petitioner’s fear of
torture.” Tamang v. Holder, 598 F.3d 1083, 1095 (9th Cir. 2010); see also
8 C.F.R. § 1208.18(a)(2) (“Torture is an extreme form of cruel and inhuman
treatment and does not include lesser forms of cruel, inhuman or degrading
treatment or punishment that do not amount to torture.”).
In rejecting Kumar’s CAT claim, the BIA relied on its flawed analysis of
Kumar’s past harm, including its incomplete description of that harm as mere
“threats and a beating by BJP members.” Thus, we remand Kumar’s CAT claim
for the BIA to reconsider whether Kumar’s fear of torture is objectively
reasonable. See Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1076 (9th Cir.
2017) (en banc) (remanding a CAT claim, where substantial evidence compelled
the conclusion of the petitioner’s past persecution). When evaluating the CAT
claim, the BIA should consider Kumar’s credible testimony, according to which he
went to a Punjabi police station and the senior officer questioned his attempt to file
a complaint “against the government,” when Kumar attempted to report how BJP
members physically harmed and threatened to kill him. See Xochihua-Jaimes v.
Barr, 962 F.3d 1175, 1184 (9th Cir. 2020) (“Government acquiescence does not
require actual knowledge or willful acceptance of torture; awareness and willful
blindness will suffice.” (citation omitted)).
IV. CONCLUSION
18 23-308 For the above reasons, we grant Kumar’s petition for review and remand for
further proceedings consistent with this opinion.
PETITION GRANTED; REMANDED.
19 23-308 FILED JAN 17 2025 Kumar v. Garland, No. 23-308 BUMATAY, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
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. 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. The resulting lack of
clarity is a disservice to both the petitioners and immigration courts trying to follow
our rules.
Given the great deference we owe immigration courts, when, as here, the
Board of Immigration Appeals (“BIA”) faithfully followed our precedent (at least
one version of it), it should not be second guessed. In other words, there’s no way
that we are compelled to conclude that the BIA erred here when it simply followed
our caselaw.
For these reasons, I respectfully dissent.
I.
A. 1 While the Immigration and Nationality Act does not define “persecution,” it
must be an “extreme concept.” Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004)
(en banc) (simplified). It “does not include every sort of treatment our society
regards as offensive.” Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995) (simplified).
Persecution means something “considerably more than discrimination or
harassment.” See Donchev v. Mukasey, 553 F.3d 1206, 1213 (9th Cir. 2009).
And compelling a finding of past persecution must meet a high bar—even
when faced with disturbing physical attacks and threats. See, e.g., Prasad v. INS, 47
F.3d 336, 339 (9th Cir. 1995) (no past persecution when petitioner was placed in jail,
“hit on his stomach and kicked from behind,” detained for four to six hours and
interrogated about his political allegiances, and made to understand that he would
be arrested and beaten again if he didn’t do what his jailors wanted); Hoxha v.
Ashcroft, 319 F.3d 1179, 1181–82 (9th Cir. 2003) (no past persecution for a single
beating resulting in two broken ribs, extensive facial bruises, and repeated death
threats); Hussain v. Rosen, 985 F.3d 634, 646–47 (9th Cir. 2021) (no past persecution
when the Taliban burned down petitioner’s jewelry shop, attacked a convoy of cars
including petitioner’s, and petitioner was subject “to death threats, economic harm,
and psychological harm”).
It is so unremarkable a proposition that many of our cases holding that
combined physical attacks and threats don’t necessarily equate to past persecution
2 are unpublished. See, e.g., Contreras-Villanueva v. Garland, 2024 WL 639365, at
*1 (9th Cir. Feb. 15, 2024) (unpublished) (no past persecution when petitioner
received a death threat and was beaten twice, including being hit in the face, kicked,
and cut on his hand with a knife); Gill v. Barr, 765 F. App’x 225, 225–26 (9th Cir.
2019) (unpublished) (no persecution when petitioner was beaten and threatened with
death, regularly harassed, and the following year was again severely beaten); Samad
v. Whitaker, 759 F. App’x 634, 636–37 (9th Cir. 2019) (unpublished) (no past
persecution when the Taliban threatened to kill petitioner and beat him with the butt
of a gun, and he suffered bruises); Argueta-Chavarria v. Barr, 780 F. App’x 519, 520
(9th Cir. 2019) (unpublished) (no past persecution when a gang beat and
subsequently harassed and threatened petitioner); Yongsheng Cui v. Barr, 839 F.
App’x 50, 52 (9th Cir. 2020) (no past persecution when police arrested petitioner,
detained him for five days, beat him, and then “handcuffed him to a chair, beat him
with books in his face and with a baton on his back, [and] threatened to freeze him
to death”).
A recent case, Sharma v. Garland, 9 F.4th 1052, 1061 (9th Cir. 2021),
illustrates how our review of past persecution typically works. In that case, the
petitioner started receiving phone calls threatening that he would be “in big trouble”
if he did not stop asking questions about someone’s disappearance, who was
suspected of being kidnapped by the local police. Id. at 1057. Things then got
3 worse. The petitioner later received a call from the head of the local police
threatening to “eliminate” him and his family if he kept asking questions. Id.
at 1058. A few years later, after speaking out against the police chief, police officers
went to the petitioner’s office and an officer “beat” and “slapped” him with a baton.
Id. He was told he was “finished” for “crossing paths with” the police chief. Id.
The officers then tied the petitioner’s hands, blindfolded him, and put him in a van.
Id. After taking him to a locked room, they continued to threaten him, verbally abuse
him, beat and slap him, and shove him around. Id. The next day, while still in
custody, a police inspector told him to “worry about [his] family” and warned him
against continuing the investigation of the missing man. Id. He was told “he would
be permanently finished” if he didn’t stop asking questions. Id. The whole ordeal
lasted 18 to 19 hours. Id. While the attacks and threats against the petitioner were
“disgraceful,” we held that the conduct there did not compel a finding of past
persecution. Id. at 1063.
B.
Following Sharma’s example, we should have denied this petition for review.
In Sharma, we compiled the commonly accepted factors used to guide our
consideration of past persecution based on prior precedent. In past cases, we’ve
routinely looked to:
4 (1) “whether the petitioner was subject to ‘significant physical violence,’ and, relatedly, whether he suffered serious injuries that required medical treatment”; (2) “whether the petitioner’s harm was an isolated incident or, conversely, part of an ongoing pattern of serious maltreatment”; (3) “[t]he length and quality of a petitioner’s detention, if any”; (4) claims of “threats,” which are most relevant when they are “repeated, specific and combined with confrontation or other mistreatment”—“mere threats, without more,” don’t suffice; (5) whether harms have “befallen a petitioner’s family members or close friends”; (6) whether the petitioner suffered “[e]conomic harm,” but only if the harm is “substantial economic deprivation” threatening “life or freedom”—not “mere economic disadvantage”; and (7) whether “political and social turmoil in the petitioner’s home country can provide relevant context for the petitioner’s personal experiences.”
Id. at 1061–63 (simplified).
Applying these factors, as the BIA did here, shows why we are not compelled
to find past persecution. Consider each factor—
First, Kumar experienced no significant physical harm. Kumar described two
incidents. One time, while he was putting up posters for the Shiromani Akali Dal
Mann Party (“Mann Party”), four unknown men wearing ruling Bharatiya Janata
Party (“BJP”) t-shirts started ripping down the posters. When Kumar refused their
entreaties to join their party and sell drugs with them, they started using “bad
language” and seemed “ready to beat” Kumar. The attackers were apparently weak-
kneed because they ran off as soon as other people saw them. So no physical
violence this time.
5 On another occasion, Kumar was not so lucky. Several weeks after the first
incident, as Kumar was finishing work, four men—“[s]ome men were the same” as
the last time, but “some were different”—stopped him. After Kumar told them he
would not leave the Mann Party, they punched him twice, kicked him, and hit him
with a wooden stick. The beating lasted for two to three minutes. The result was
“blue, yellowish bruises” on his knees, forehead, and back. While he was apparently
admitted into a hospital for the two days after the attack, Kumar was only asked to
rest, take “some tablets,” and put “some sort of gel” on his injuries. That was the
extent of Kumar’s interactions with the BJP.
None of this amounts to significant harm. He received no permanent injuries.
No broken bones. No extensive medical treatment. Rather, the minor bruises Kumar
suffered are nowhere near the extreme nature of other attacks we have found
constitute persecution. Cf. Hoxha, 319 F.3d at 1181–82 (extensive facial bruising
and two broken ribs did not compel a finding of past persecution); Wakkary v.
Holder, 558 F.3d 1049, 1059–60 (9th Cir. 2009) (no past persecution when petitioner
was beaten twice—once on the street by a group of ten youths, and another time by
youths who held him at knifepoint and beat him with a stick); Sharma, 9 F.4th
at 1058 (no past persecution when petitioner was held in “captivity” for 18 to 19
hours, and was repeatedly beaten, slapped, and shoved around).
6 Second, Kumar’s physical attack was an isolated incident. Although BJP
members previously threatened him with violence, he was only physically assaulted
once. And our circuit has generally found that a one-off beating is not enough to
establish past persecution. See Sharma, 9 F.4th at 1063 (no past persecution when
petitioner’s physical harm was “limited to one episode”); Gu v. Gonzales, 454 F.3d
1014, 1020 (9th Cir. 2006) (no past persecution when petitioner “was detained and
beaten on only one occasion”); Hoxha, 319 F.3d at 1182 (no past persecution when
petitioner was harassed, threatened, and beaten once). Of course, a single attack
might constitute persecution if it was sufficiently severe. But the relatively minor
attack here doesn’t meet the mark.
Third, aside from the few minutes of the attack, Kumar was never detained by
BJP members—even though they were supposedly part of the ruling political party
in Kumar’s hometown. Compare this lack of detention to the petitioner in Sharma,
who was blindfolded, forced into a van, and detained for 18 to 19 hours by police
officers. 9 F.4th at 1063–64. Despite this prolonged detention by government
officials, we still found no persecution.
Fourth, Kumar alleges only two vague threats. He claims the unknown men
threatened his life during the two encounters. During the first encounter, one
unidentified man with a wooden stick threatened to kill Kumar if he put up Mann
Party posters again. During the second encounter, the nameless men warned Kumar
7 that if they saw him doing “this” next time—presumably, but we don’t know, that
“this” refers to working for the Mann Party—they would shoot him. But Kumar
never saw them with a gun or any other weapon besides “wooden sticks.” These are
exactly the types of “generally anonymous and vague” threats that don’t establish
past persecution. See Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019)
(finding threats not “sufficiently serious and credible” to compel finding past
persecution when petitioner thought these individuals were hitmen or “sicarios,” but
did “not personally know” if they had ever carried out their threats). While
“unpleasant,” the threats didn’t cause “significant actual suffering or harm” to
Kumar. Id. (simplified). Indeed, the first threat didn’t deter Kumar from continuing
his political work. He didn’t even bring the first threat to the attention of the police.
Fifth, none of Kumar’s family members have been harmed. Kumar recalled
that unknown BJP members started harassing his father and brother around an
election and they too were threatened with death if they did not work for the BJP.
Kumar also claimed that the BJP was still asking his parents about his whereabouts.
Even so, despite not acceding to the BJP members’ supposed threats, Kumar’s family
has remained in India unharmed. Thus, the safety of his family also supports the
lack of persecution. Cf. Estrada v. INS, 775 F.2d 1018, 1022 (9th Cir. 1985) (“The
absence of harassment of an alien’s family tends to reduce the probability of
persecution.” (simplified)).
8 Sixth, Kumar wasn’t subject to any economic deprivation. He was employed
when he left India even though the BJP apparently controlled the region.
Lastly, nothing in India’s political or social conditions shows that Kumar
suffered past persecution. Kumar was not a longtime, well-known, or high-level
member of the Mann Party. In fact, he only joined the party nine months before he
was first accosted over putting up posters. While India has documented political
strife, the record, as found by the immigration judge, does not show that the BJP
systematically targets low-level Mann Party members like Kumar. According to
country reports, there is no “general risk” of “ill-treatment” of the Mann Party and
the Party “operates openly.” Unless suspected of terrorism, the record confirms that
“outspoken [Mann Party] members were not harassed or arrested for participating in
party gatherings.”
Adding all this together, substantial evidence supports the BIA’s conclusion
that Kumar didn’t establish past persecution. Under the deference we owe to the
BIA and the support of our past precedents, this record can’t compel the conclusion
that the BIA was wrong. And the BIA sufficiently explained its reasons for not
finding past persecution even if it didn’t tick through each Sharma factors. After all,
we don’t require the BIA to write “an exegesis.” See Lopez v. Ashcroft, 366 F.3d
799, 807 n.6 (9th Cir. 2004). Instead, the BIA need only “announce its decision in
9 terms sufficient to enable a reviewing court to perceive that it has heard and thought
and not merely reacted.” Id.
C.
In granting this petition, the majority takes our already contradictory caselaw
and adds more confusion. Rather than acknowledge the weakness of Kumar’s case,
the majority creates a novel test for calculating “past persecution.” Because Kumar
suffered physical harm “in tandem” with receiving a death threat, the majority
decides he meets “past persecution,” and we can disregard all our precedent on the
issue. Maj. Op. 9. All this no matter how minor the harm or how indeterminate the
threat. To the majority, the only thing that counts is the “connectedness between the
physical harm and death threat” here. Id. So, in the majority’s view, any “physical
harm” plus any “death threat” equals “past persecution.” Id. But immigration law
can’t be reduced to a formula. And under the majority’s novel formula, how
connected is connected enough? Does it need to be instantaneous? How about five
minutes later? An hour? Or a day? The majority doesn’t say.
Sharma is thrown out, according to the majority, because the threats in that
case were not made at the exact moment that the petitioner was being attacked. Even
if this “tandem rule” were a material distinction, which seems odd, it also misreads
Sharma. In that case, the petitioner was physically attacked and threatened at the
same time. Sharma, 9 F.4th at 1058. The petitioner was beaten, detained, and the
10 next morning, while still being detained, he was “threatened that ‘worse could
happen’ if [the petitioner] ‘continued to raise [his] voice against’ [the police chief]”
and told he needed to “worry about [his] family” or he “would [be] dealt with in a
manner like others.” Id. So it was during one sustained detention that Kumar was
physically harmed and threatened. Thus, the supposed “tandem rule” isn’t a reason
to distinguish Sharma.
We also can’t ignore that Sharma has more aggravated facts than this case. In
Sharma, the beatings, detention, and threats came from named police officers over
an 18 to 19-hour period. Here, we have unknown men threatening to shoot Kumar
with a non-existent firearm during a minor assault lasting two to three minutes. If
Sharma doesn’t represent past persecution, then this case shouldn’t either. Instead,
the majority essentially overrules Sharma, which it can’t do. See Miller v. Gammie,
335 F.3d 889, 899–900 (9th Cir. 2003).
Aside from kneecapping Sharma, the majority aggrandizes Aden v. Wilkinson,
989 F.3d 1073 (9th Cir. 2021). It expands Aden’s “something more” language to a
degree that undoes decades-long precedent. See id. at 1082. According to the
majority, any vague threat counts as “something more.” Maj. Op. 11–12. But the
“something more” contemplated in Aden requires something comparable to the
extreme facts of that case. There, the petitioner worked at his brother’s movie theater
in Somalia, which featured American and Hindi movies and sports. Id. at 1077. An
11 Islamic terrorist group affiliated with Al-Qaeda and the Islamic State twice ordered
the movie theater to shut down for showing “Satanic” movies. Id. Later, ten
members of the terrorist group raided the theater, physically beat the petitioner,
“cudgeled him on the head with the butt of a rifle, causing him to bleed profusely,”
and destroyed and stole property to ensure the theater would remain closed. Id. at
1083–84. The petitioner went into hiding, but the terrorists tracked down his brother
and warned that the petitioner would be killed if the theater reopened. Id. at 1077–
78. We viewed this Islamic terrorist group as “a major force in the country, and a
danger to many.” Id. at 1084. Under these tragic facts, we found past persecution
even though the physical harm by itself wasn’t so severe. Id. at 1082.
And Singh v. Garland, 57 F.4th 643, 654 (9th Cir. 2023), doesn’t help either.
There, the petitioner was a minor and he and his brother were “repeatedly” and
“specifically” targeted for attack over a two-year period. Id. at 655–56. The minor
received injuries after being beaten with hockey sticks, and his brother suffered
“serious internal injuries” from the attacks. Id. at 649. The minor was told he was
going to be killed. Id. In that case, we focused on the petitioner’s age, noting that
“[a]ge can be a critical factor in the adjudication of asylum claims and may bear
heavily on the question of whether an applicant was persecuted[.]” Id. at 654
(quoting Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045 (9th Cir. 2007)).
12 Now let’s contrast these cases with Kumar’s situation. First, a few unknown
and anonymous supposed BJP members stumbled across him in public, asked him
to sell drugs, threatened him but then fled when other people scared them off. A few
weeks later, Kumar was approached—again seemingly at random—by unknown
BJP members, some of whom Kumar thought resembled the men from before. This
time the unknown men beat him with sticks and made a vague threat to shoot him,
even though there’s never been any allegation of any man possessing a gun. While
these events happened, Kumar was well into adulthood. And all this with no record
of low-level Mann Party members being systematically killed or beaten. As is
obvious, this case is nothing like Aden or Singh.
And finally, to justify its ruling, the majority oversteps its bounds by engaging
in blatant unadulterated factfinding. The majority asserts that BJP members “kept a
close eye” and maintained a “lingering interest” in Kumar. Maj. Op. 13. But none
of this was found by the IJ or BIA. And nothing in the record shows that all the
incidents alleged by Kumar were the same men—let alone based on some secret plot
within the BJP. So the majority uncovers a conspiracy all on its own. But this is
more Scooby Doo than Sherlock Holmes.
Even worse, the majority goes on to find that the BJP, the ruling party of India,
targets Sikhs for violence. Maj. Op. 14–15. There’s several problems with this
diplomacy-busting view. First, it contradicts the finding of the BIA and IJ. And
13 second, while a country report noted “reports” of unlawful killings, nowhere in the
report does it say that Sikhs are the systematic victims of such killings or that the
BJP is responsible for that violence. Indeed, the majority overlooks other parts of
the same country report that says that there “were no restrictions placed on . . .
individuals of any community from participating in the election process” and
minorities “freely participate[]” in the political process. Members of the Sikh
community, in fact, have “reserved seats” in India’s lower house of parliament. The
majority’s careless factfinding is totally inappropriate here.
II.
As the BIA concluded, Sharma shows there’s no past persecution. Instead of
second guessing the BIA and opening a new chapter in immigration-law adventures,
we should have denied Kumar’s petition outright.