Satish Kumar Sashi Lata Kumar v. Immigration and Naturalization Service

204 F.3d 931, 2000 Daily Journal DAR 2345, 2000 Cal. Daily Op. Serv. 1661, 2000 U.S. App. LEXIS 3140, 2000 WL 232275
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 2, 2000
Docket98-71129
StatusPublished
Cited by42 cases

This text of 204 F.3d 931 (Satish Kumar Sashi Lata Kumar v. Immigration and Naturalization Service) 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
Satish Kumar Sashi Lata Kumar v. Immigration and Naturalization Service, 204 F.3d 931, 2000 Daily Journal DAR 2345, 2000 Cal. Daily Op. Serv. 1661, 2000 U.S. App. LEXIS 3140, 2000 WL 232275 (9th Cir. 2000).

Opinion

O’SCANNLAIN, Circuit Judge:

We must decide whether a change in Fijian country conditions rebuts the presumption that a Fijian of Indian descent seeking asylum in the United States has a well-founded fear of persecution.

I

Petitioner Sashi Lata Kumar illegally entered the United States at Blaine, Washington, on or about April 24, 1991. When Kumar applied for asylum in this country, the Immigration and Naturalization Service (“INS”) initiated deportation proceedings on the ground that she had entered the country without inspection by an immigration officer. At an evidentiary hearing before an Immigration Judge (“IJ”), Ku-mar testified that in 1986, when she was twenty-one years old, her father was politically active in the Fijian Labour Party. During the general election of that year, her father organized charity events, raised funds for the party, and transported voters to the polls. Kumar assisted her father in these activities by distributing beverages and handling other tasks. The Labour Party won the election, but was removed from power in a bloodless coup led by the military in 1987. •

After the coup in 1987, a group of soldiers came to her home, tied her parents to a chair, and beat them. The soldiers locked her younger sister and brother in a room, and then at gun-point, demanded that Kumar remove her clothes. When she refused, the soldiers stripped her in front of her parents. The soldiers then fondled her all over her body. Finally, the soldiers punched and hit her father, telling him that this is what was going to happen to people who support the Labour Party. The soldiers warned Kumar that if her *933 father continued to support the Labour Party or if they saw her around, they would kill her.

Her family reported the incident to the police, but the authorities took no action. Later, her father was taken into custody and incarcerated for a fortnight where he was beaten severely and released only after having his life threatened.

A second incident occurred in July 1987 when Kumar and her mother were attending the Hindu temple where they worshiped. While there, a group of soldiers entered the temple, broke the religious statues contained therein, and burned a holy text. Two of the soldiers dragged her out of the temple by her hair. When her mother attempted to intervene, the soldiers knocked her unconscious. Once outside the temple, the soldiers punched and kicked Kumar. Then, at gun-point, one of the soldiers demanded that she change her religion from Hinduism to Christianity. Out of fear for her life, she said that she agreed.

A third incident took place in September 1987. A truckload of soldiers came to the secretarial school that Kumar was attending, shouting that Indians should go back to India. As her schoolmates fled, the soldiers caught Kumar and beat her until she was unconscious.

Approximately two months after this final incident, in November 1987, Kumar’s father sent her to an uncle in Canada, where she applied unsuccessfully for refugee status. While she was in Canada, she . met and married her current husband, who was also denied asylum in Canada. Together, the two crossed the border into the United States illegally in 1991.

On February 3, 1995, the IJ denied Ku-mar’s application for asylum and withholding of deportation, but he granted her voluntary departure. In deciding the matter, the IJ relied primarily on the changed country conditions of Fiji. In addition, he did not And that acts perpetrated against her were so egregious that she warranted asylum regardless of the changed country conditions. He concluded his opinion by noting that because Kumar had not successfully made out a claim for asylum, she necessarily “failed to sustain her burden of proof with regarding withholding of deportation as well.”

The Board of Immigration Appeals agreed. The Board did “not find any argument presented on appeal that persuades us that the Immigration Judge erred in his decision in this case.” Specifically, the Board noted that Kumar “has not challenged the Immigration Judge’s finding that the conditions in Fiji have fundamentally changed since the time of the incidents in which she based her application for asylum and withholding.” Accordingly, the Board dismissed Kumar’s appeal.

II

Although we typically review the decision of the BIA, when the Board adopts the decision of the IJ, we also review the decision of the IJ. See Alaelua v. INS, 45 F.3d 1379, 1382 (9th Cir.1995). We review the lower court’s decision that an alien has not established eligibility for asylum under the “substantial evidence” standard. See Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998). Therefore, the IJ’s determination, affirmed by the Board, that an alien is not eligible for asylum must be upheld if supported by reasonable, substantial, and probative evidence in the record. See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). In other words, Kumar must show “that the evidence [s]he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Id.

To qualify for asylum under 8 U.S.C. § 1158, Kumar must demonstrate a well-founded fear of persecution, on account of statutorily protected grounds, that is both subjectively genuine and objectively reasonable. See Sanchez-Trujil *934 lo v. INS, 801 F.2d 1571, 1579 (9th Cir. 1986). Kumar is not, however, required to show that an occurrence of the feared persecution is more likely than not. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (“One can certainly have a well-founded fear of án event happening when there is less than a 50% chance of the occurrence taking place”).

To reach the conclusion that Petitioner qualifies for withholding of deportation under 8 U.S.C. § 1253(h), the IJ must find that she has shown that there would be a “clear probability of persecution” if she were deported. INS v. Stevic, 467 U.S. 407, 430, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). For this second form of relief, therefore, Petitioner bears a higher burden of proof, under which she must demonstrate that it would be “more likely than not” that the feared persecution would occur. Id. at 424, 104 S.Ct. 2489.

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204 F.3d 931, 2000 Daily Journal DAR 2345, 2000 Cal. Daily Op. Serv. 1661, 2000 U.S. App. LEXIS 3140, 2000 WL 232275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/satish-kumar-sashi-lata-kumar-v-immigration-and-naturalization-service-ca9-2000.