Raj Kumar v. Gonzales

435 F.3d 1019, 2006 U.S. App. LEXIS 1576, 2006 WL 156705
CourtCourt of Appeals for the Ninth Circuit
DecidedJanuary 23, 2006
Docket03-70191, 03-73449
StatusPublished
Cited by11 cases

This text of 435 F.3d 1019 (Raj Kumar v. Gonzales) 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.

Bluebook
Raj Kumar v. Gonzales, 435 F.3d 1019, 2006 U.S. App. LEXIS 1576, 2006 WL 156705 (9th Cir. 2006).

Opinions

REINHARDT, Circuit Judge.

Raj Kumar (Raj), an Indian citizen and native of the northern Indian state of Jam-mu and Kashmir, petitions for review of the Board of Immigration Appeals’ (BIA) order affirming, without an opinion, the denial of his applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). He also petitions for review of the BIA’s denial of his motion to reopen. We conclude that the Immigration Judge (IJ) erred in finding (1) that Raj was not credible, (2) that Raj had not established a nexus between his past persecution and at least one of the five protected grounds enumerated in 8 U.S.C. § 1101(a)(42)(A), and (3) that Raj had failed to demonstrate a reasonable fear of future persecution.

FACTUAL AND PROCEDURAL BACKGROUND

According to Raj’s sworn declaration, in the early morning of January 6, 1998, police officers stopped him as he walked to his neighborhood temple in Jammu and Kashmir and asked him whether he knew the whereabouts of Syed Ali Shah, whom the police had identified as a suspected terrorist and Muslim separatist. Raj pointed the officers in the direction of Shah’s house but initially refused to accompany them there, in part because he did not believe that Shah was a terrorist. After the officers physically assaulted Raj and threatened him with arrest and possible death if he did not cooperate, he agreed to lead them to Shah’s house.

When Raj and the police arrived at Shah’s residence, Shah answered the door carrying a gun. Upon seeing that Raj was with law enforcement personnel, Shah attempted to flee and was shot by the officers and thereafter arrested. After Shah’s arrest, Raj was released by the police. Several hours later, individuals associated with Shah came to the Kumar home and, believing that Raj had been involved in Shah’s arrest, began yelling threats and throwing stones at the house. That evening, Raj and his brother Rajinder were arrested by the local police. The arresting officers informed them that Shah had died from his gunshot wounds but, prior to his death, had told the police that Raj and Rajinder were involved in terrorist activities.

The brothers were taken to the police station, where Raj was repeatedly and severely beaten with wooden sticks and leather belts by officers who told him that he would be killed if he did not disclose the identities of Muslim terrorists and reveal information about their planned terrorist activities. Despite Raj’s truthful pronouncements that he was not involved with any militant or terrorist organization and could not provide the police with any relevant information, his confinement and physical abuse continued until February 6, [1023]*10231998, when his father successfully bribed a police officer to release him along with his brother.

When Raj returned home from the police station he discovered that, during his confinement, individuals associated with Shah who were involved with Muslim terrorist organizations had come to the Ku-mar home seeking revenge for Shah’s arrest and death. These individuals had killed Raj’s brother Ram and also threatened to kill Raj, Rajinder and other members of the Kumar family. When Raj and Rajinder learned of these threats, they fled India; the two brothers arrived in the United States by way of Germany and Canada on February 26, 1998, and subsequently separated.

On or about April 24, 1998, Raj applied for asylum and withholding of removal. At a brief preliminary hearing before the IJ on December 16, 2000, Raj additionally requested relief under CAT. A hearing on the merits of Raj’s case was held on May 25, 2000. At that hearing, Raj submitted in evidence, among other things, his sworn declaration detailing the events described above, Rajinder’s application for asylum, the death certificate for his brother Ram which was sent from Jammu and Kashmir, a letter from his mother and father stating that a newly-appointed police official had threatened to kill him if he returned to India, and several photographs depicting injuries suffered from the beatings at the police station. Also in evidence were country reports from India which stated, among other things, that India was the site of significant civil rights abuses stemming from “deficient police methods and training” as well as “violent secessionist movements” responsible for “extrajudicial executions and other political killings, torture, and brutality.” These problems were “acute in Jammu and Kashmir,” where “torture and rape by police” and “arbitrary arrest and incommunicado detention” operated in conjunction with a “judicial system [that] barely functions.”

On September 14, 2001, the IJ denied Raj’s applications for asylum, withholding of removal, and relief under CAT. The IJ based the decision on his findings (1) that Raj was not credible, (2) that Raj had failed to establish a nexus between the harm suffered and a protected ground, and (3) that the threat of future persecution was speculative and thus Raj’s fear of it was not reasonable.

With respect to his first finding that Raj was not credible, the IJ concluded that Raj had submitted fraudulent documentary evidence. Specifically, the IJ determined that a number four written on the date line of Rajinder’s asylum application was “precisely the same peculiar and uniquely styled” number four that was written on Ram’s death certificate. Based upon this and nothing more, the IJ surmised that the death certificate was likely forged by Raminder Singh, who had prepared the asylum applications for both Raj and Ra-jinder.

The IJ also noted that several of the photographs attached to Raj’s asylum application which purported to show injuries that he had suffered at the hands of the Indian police officers were identical to photographs attached to Rajinder’s application. The IJ concluded based upon this finding that Raj was attempting to claim injuries that were actually suffered by his brother. The IJ also stated that he did not believe Raj’s contention that he did not know where Rajinder was at the time of the hearing, despite Raj’s' statements that Rajinder was a truck driver and that the brothers had separated out of economic necessity. According to the IJ, these considerations taken -together with what the IJ determined to be inconsistencies between Raj’s factual allegations and the In[1024]*1024dian country reports required an adverse credibility finding.

Second, the IJ ruled that, even if Raj was credible, he was ineligible for asylum because he had failed to establish a nexus between the harm that he had suffered and at least one of the five grounds protected by the asylum provision of the Immigration and Nationality Act (INA). On this point, the decision stated as follows: “[Raj] has no political contact nor associations with any group whatsoever. He had no contacts with any militants.... Here, questions were asked and a confession requested. That was the extent of the testimony about a nexus about the harm suffered and one of the five enumerated grounds from the respondent.” With respect to his third finding that Raj had also failed to establish a reasonable fear of future persecution, the IJ cited only evidence that Raj’s parents remained in India and had not been harmed by the separatist factions that had killed Raj’s brother and threatened the lives of Raj and Rajinder. Based upon these three findings, the IJ denied Raj’s application for asylum.

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Bluebook (online)
435 F.3d 1019, 2006 U.S. App. LEXIS 1576, 2006 WL 156705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/raj-kumar-v-gonzales-ca9-2006.