Sunil Kumar v. William Barr ( 2019 )

FILED
NOT FOR PUBLICATION
MAY 16 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUNIL KUMAR, No. 16-71890
Petitioner, Agency No. A201-294-534
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 14, 2019**
San Francisco, California
Before: THOMAS, Chief Judge, and McKEOWN and GOULD, Circuit Judges.
Sunil Kumar, a native and citizen of India, petitions for review of the Board
of Immigration Appeals’ (BIA) order dismissing his appeal from an immigration
judge’s (IJ) decision denying his application for asylum, withholding of removal,
and protection under the Convention Against Torture (CAT). We review factual
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
findings for substantial evidence. Ming Dai v. Sessions, 884 F.3d 858, 866 (9th
Cir. 2018). Because the parties are familiar with the history of this case, we need
not recount it here.
I
Substantial evidence does not support the agency’s denial of asylum and
withholding of removal. An applicant’s testimony alone is sufficient to establish
eligibility for asylum and withholding of removal if it is credible, persuasive, and
refers to specific facts sufficient to establish eligibility. See 8 U.S.C. §§
1158(b)(1)(B)(ii), 1229a(c)(4)(B).
Neither the IJ nor the BIA made an explicit adverse credibility
determination, so we are required to treat Kumar’s testimony as credible. See
Ming Dai, 884 F.3d at 870. Kumar testified that he was attacked on three separate
occasions by members of the Sikh community because of his religious activities
with the Dera Sach Khand Ballan, he suffered broken ankles and lost
consciousness in the most severe beating, he received anonymous calls from
individuals who threatened to kill him if he did not stop his religious activities, and
he reported each incident to the police to no avail. This testimony is sufficient to
establish his eligibility for asylum and withholding of removal. See Bringas-
Rodriguez v. Sessions, 850 F.3d 1051, 1066 (9th Cir. 2017) (“reporting and police
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inaction is one means of establishing government . . . unwillingness to control the
attackers”); Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th Cir. 2004) (“threats may
be compelling evidence of past persecution”); Chand v. INS, 222 F.3d 1066,
1073–75 (9th Cir. 2000) (cumulative effect of three instances of violence and
harassment compel finding of past persecution).
Because we must “treat [Kumar’s] testimony as credible and his testimony
clearly set out sufficient facts to establish past persecution” we “treat the BIA’s
general statement about [Kumar’s’] burden of proof as relating to the only
remaining requirement for testimony to carry that burden: persuasiveness.” Ming
Dai, 884 F.3d at 871. The BIA held that Kumar’s testimony was unpersuasive,
noting his “vague, and at times, inconsistent testimony.” Vagueness and
inconsistency, however, are inquiries relevant to the issue of credibility—not
persuasiveness. Shrestha v. Holder, 590 F.3d 1034, 1046 (9th Cir. 2010). Once
credibility is decided—here, by the failure of the IJ or the BIA to issue an adverse
credibility determination—the issue is settled: the BIA cannot then smuggle
credibility concerns into the persuasiveness inquiry. Ming Dai, 884 F.3d at
872–73. Thus, the BIA’s determination that Kumar’s testimony was unpersuasive
is not supported by substantial evidence. The record, therefore, compels the
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conclusion that Kumar’s testimony satisfied his burden of proof because it is
credible, persuasive, and sets forth sufficient facts.
Kumar is entitled to a presumption of a sufficient likelihood of future
persecution because he established that he suffered past persecution. Mutuku v.
Holder, 600 F.3d 1210, 1213 (9th Cir. 2010). Accordingly, we grant the petition
as to Kumar’s asylum and withholding of removal claims. We remand with
instructions to grant Kumar withholding of removal and remand for a
determination whether Kumar should be granted asylum. See Ndom v. Ashcroft,
384 F.3d 743, 756 (9th Cir. 2004).
II
We conclude, however, that the IJ’s denial of CAT protection is supported
by substantial evidence because the record does not establish that Kumar more
likely than not would be tortured at the instigation of, or with the acquiescence of
the Indian government. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir.
2008). We therefore deny the petition with regard to Kumar’s CAT claim.
III
Given our conclusions, we need not address any other issue raised by the
parties. Each party shall bear its own costs.
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PETITION FOR REVIEW GRANTED in part; DENIED in part;
REMANDED.
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