Chanpreet Kaur v. Robert Wilkinson ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHANPREET KAUR, No. 18-73001
Petitioner,
Agency No.
v. A213-086-008
ROBERT M. WILKINSON, Acting
Attorney General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 22, 2021 *
Pasadena, California
Filed January 29, 2021
Before: Kim McLane Wardlaw, Mary H. Murguia, and
Eric D. Miller, Circuit Judges.
Opinion by Judge Wardlaw;
Dissent by Judge Miller
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 KAUR V. WILKINSON
SUMMARY **
Immigration
The panel granted Chanpreet Kaur’s petition for review
of the Board of Immigration Appeals’ denial of her
applications for asylum and related relief, and remanded,
holding that Kaur’s credible testimony about an attempted
gang rape was sufficient to establish past persecution, and
that the Board erred in imposing evidentiary requirements of
ongoing injury or treatment beyond the attempted sexual
assault in order to show persecution.
The Board concluded that Kaur failed to establish past
harm rising to the level of persecution, stating that although
some forms of sexual assault short of rape can and do
constitute persecution, Kaur’s attempted gang rape could not
rise to the level of persecution unless she produced evidence
of treatment for psychological harm or further specific
testimony regarding ongoing issues stemming from the
attack. The panel held that the Board erred in requiring such
additional evidence of harm, psychological or otherwise,
explaining that attempted rape itself is a severe violation of
bodily integrity and autonomy, and so is itself almost always
a form of persecution. The panel noted that this court has
consistently treated rape as one of the most severe forms of
persecution, and explained that some forms of physical
violence are so extreme that even attempts to commit them
constitute persecution. The panel explained that in
evaluating whether past treatment rises to the level of
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
KAUR V. WILKINSON 3
persecution, the appropriate inquiry looks not to the level of
harm experienced by the petitioner, but rather whether the
treatment the victim received rises to the level of
persecution. In other words, it is the conduct of the
persecutor, not the subjective suffering from the perspective
of the victim, that matters for purposes of determining what
constitutes persecution.
The panel held that Kaur’s credible testimony about her
attempted rape by a gang of Congress Party agents, in broad
daylight on a public street, which left her bloodied and
bruised and in need of medical treatment, was sufficient to
establish past persecution. The panel noted that although
this attack alone was sufficient to establish persecution, Kaur
also endured death threats and her parents were attacked on
multiple occasions, which under the totality of the
circumstances, established past persecution on account of
her political opinion.
The panel concluded that the Board also appeared to
conduct the wrong analysis by focusing on whether the
Indian government was unwilling or unable to protect Kaur
from persecution, where Kaur alleged that she was
persecuted by the government itself, and government control
is not required where the persecutor is the government. The
panel noted that the Congress Party was already a part of the
government when party agents attempted to rape Kaur, it
became the ruling party mere months later, and was in power
when further persecutory acts occurred against Kaur and her
family. The panel noted that the distinction between an
“opposition party” and conceptions of who represents the
“government” is nuanced in a multi-party parliamentary
system such as India’s, and becomes further strained in cases
of parliamentary minority governments, where no party
commands a majority of seats. However, the panel
4 KAUR V. WILKINSON
emphasized that the Board neither mentioned that Kaur had
claimed persecution by her government, nor did it discuss
the record evidence and precedent supporting that claim.
Noting that the Board is not free to ignore arguments raised
before it, the panel remanded to the Board for further
consideration of Kaur’s claim that she was persecuted by
government actors.
The panel stated that if on remand the Board concludes
that Kaur’s past persecution was at the hands of her
government, the Board should apply the presumption of
future persecution, and conduct an individualized analysis of
whether the government can rebut this presumption by
showing either a fundamental change in circumstances or
that Kaur could avoid future persecution by relocating
internally within India.
Dissenting, Judge Miller agreed with the panel that both
rape and attempted rape can constitute persecution, that an
asylum applicant should not bear a heightened evidentiary
burden to show psychological harm resulting from sexual
assault, including attempted rape, and that the harm Kaur
suffered was sufficiently severe to be characterized as
persecution. Agreeing that it can sometimes be difficult to
identify which parties are part of the government in a multi-
party parliamentary system, Judge Miller noted that at the
time of her attempted rape, the Congress Party did not form
the government either of India or of the state of Punjab,
where Kaur lived, and that even if the Congress Party had
been a part of the government at the time of the attack, the
agency concluded there was no evidence that Kaur’s
attackers had any affiliation with the government, that they
were working for anyone in the government, or that they had
any official governmental title or authority. Judge Miller
would deny the petition because, in his view, substantial
KAUR V. WILKINSON 5
evidence supported the Board’s determinations that Kaur’s
attackers were not part of the government and that the Indian
government was not unable or unwilling to control them.
COUNSEL
Douglas Jalaie, Los Angeles, California, for Petitioner.
Joseph H. Hunt, Assistant Attorney General; Anthony P.
Nicastro, Assistant Director; Jonathan Robbins, Senior
Litigation Counsel; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OPINION
WARDLAW, Circuit Judge:
Chanpreet Kaur, a native of the state of Punjab in India,
seeks asylum for fear of persecution in her country of origin
on account of her work for the Mann Party and advocacy for
the independent Sikh state of Khalistan. At her removal
proceedings, she testified credibly that, as a result of her
political activities, a group of men from the Indian National
Congress Party, one of Punjab’s major political parties,
accosted her while she was alone at her parents’ store,
dragged her into the public street, started ripping off her
clothes and attempted to gang rape her. As a result of this
assault, she suffered scrapes and facial bruising that required
medical attention. This was not an isolated incident. Just
months before this attack, agents of the Congress Party had
threatened her while she was walking on the street. And just
months after the attack, when Kaur left Punjab for Cyprus,
6 KAUR V. WILKINSON
Congress Party agents threatened her by phone “that they
wanted to kill her” and bring her “dead body back to India.”
Congress Party agents subsequently tracked down her father,
asked him about her whereabouts, and beat him. The police
later came to her parents’ house, asked about her location,
and beat both her father and mother when they told the police
she was in the United States.
The Board of Immigration Appeals (“BIA”) concluded
that the attempted gang rape and death threats against Kaur,
and the physical assault of her parents, was not a sufficient
“amount of mistreatment” so as to constitute past
persecution. Rather, the BIA reasoned that the attempted
gang rape “did not rise to the level of persecution” because
Kaur lacked evidence of “treatment for psychological harm,”
or other “ongoing issues” stemming from this assault.
The BIA erred in imposing evidentiary requirements of
ongoing injury or treatment beyond the sexual assault itself
in order to show persecution. Kaur’s credible testimony
about the attempted gang rape is sufficient to show
persecution. Attempted rape by a gang of men, in broad
daylight on a public street, is especially terrorizing because
it powerfully demonstrates the perpetrator’s domination,
control over the victim and imperviousness to the law.
Requiring evidence of additional harms both minimizes the
gravity of the sexual assault and demeans the victim. We
grant Kaur’s petition for review and remand for further
proceedings consistent with this opinion.
I.
Kaur was born in Punjab, India in 1993. In February
2015, she joined the Shiromani Akali Dal Simranjeet Singh
Mann Party (“Mann Party”), which advocates for the
creation of Khalistan, a sovereign state for the Sikh people.
KAUR V. WILKINSON 7
Mann Party members have faced persistent harassment,
intimidation, threats, and violence in Punjab. See, e.g., Singh
v. Whitaker, 914 F.3d 654, 657 (9th Cir. 2019) (granting the
petition for review of a Mann Party member who was jailed
and severely beaten by the police on multiple occasions);
Singh v. Ashcroft, 362 F.3d 1164, 1167–68 (9th Cir. 2004)
(same).
Kaur’s story is no exception. Kaur was first harassed by
agents of the Congress Party, one of Punjab’s major political
parties, on account of her Mann Party membership in May
2016. Four Congress Party members on motorbikes
accosted her in the street, cursed her, and told her that she
would not “be able to show [her] face to the world” if she
continued working for the Mann Party. Undeterred, Kaur
continued her political activities.
Five months later, in October 2016, Kaur was working
in her parents’ shop when a group of male members of the
Congress Party entered and asked her to find some items
they wished to purchase. It was about 2:00 p.m. in the
afternoon. When she brought the items to the counter, the
men grabbed her arms, pulled her over the counter, and
dragged her into the street. They slapped her, kicked her,
yelled obscenities at her, and told her that they were doing
this to her because she was a Mann Party member. The men
started ripping off Kaur’s clothing because, as Kaur stated,
“they wanted to rape me.” Her father was away at the time,
and her mother, who has difficulty walking, was unable to
come to her aid. Kaur cried out for help and some of her
neighbors came to her rescue. Still, she suffered injuries
during this attempted gang rape that required immediate
treatment from a nearby doctor.
Soon thereafter, Kaur left Punjab for Cyprus. While she
was there, in February 2017, she received several threatening
8 KAUR V. WILKINSON
phone calls from Congress Party agents back in Punjab,
including one in which the caller said that he was “going to
kill [her]” and bring her “dead body back to India.”
Roughly one month later, in March 2017, the Congress
Party won elections in Punjab, and assumed power in the
state. 1 Over the following months, Kaur made her way to
Mexico, ultimately crossing into the United States near the
San Ysidro port of entry in September 2017. She was almost
immediately detained and charged as removable under
8 U.S.C. § 1182(a)(7)(A)(i), which renders an immigrant
inadmissible for failing to possess a valid entry document at
the time of applying for entry into the United States.
Even after Kaur was detained in the United States, her
persecutors did not stop. Kaur testified that, in February
2018, her father was severely beaten on the way home from
his Sikh temple by Congress Party agents. His assailants
repeatedly asked Kaur’s father if he knew where Kaur was
located. A month later, the police showed up at her father’s
door to ask about Kaur’s whereabouts. When Kaur’s father
explained that she was in the United States, the police
thought he was lying and beat both him and Kaur’s mother.
II.
During her immigration proceedings, Kaur conceded
removability and applied for asylum, humanitarian asylum,
withholding of removal, and relief under the Convention
Against Torture (CAT). She claimed a well-founded fear of
1
See Smita Gupta, Congress Takes Heart From Victory in Punjab,
The Hindu (Mar. 11, 2017, 10:07 PM), https://tinyurl.com/yxrk9koc
(last visited Aug. 21, 2020) (noting that the Congress Party had
“wrest[ed]” back power “after a decade in the opposition” in Punjab).
KAUR V. WILKINSON 9
future persecution by her government on account of her
political opinion.
The Immigration Judge (IJ) found that Kaur testified
credibly. 2 However, the IJ rendered an oral decision
rejecting Kaur’s claim for relief on the basis that the
attempted gang rape, death threats, and other harassment
Kaur and her family had suffered did not constitute past
persecution. The IJ also concluded that Kaur had not
demonstrated that the attempted rape and harassment were
committed by the government or by actors the government
was unable or unwilling to control. In the alternative, the IJ
concluded that even if Kaur had demonstrated past
persecution, she had not demonstrated that she was unable
to safely relocate within India to avoid future persecution.
Finally, explaining that it was “4:15 in the afternoon” and
therefore the court’s time was limited, the IJ quickly
dismissed Kaur’s claims for withholding of removal and
CAT relief. Accordingly, the IJ ordered Kaur removed to
India.
On appeal, the BIA affirmed the IJ’s order of removal.
The BIA denied Kaur’s asylum request, reasoning that she
had failed to establish past persecution because she did not
supplement her credible testimony of attempted rape with
additional evidence of treatment for psychological harm or
of ongoing issues. Skipping over Kaur’s contention that she
was persecuted by her government, the BIA also concluded
that Kaur had not shown that the Indian government was
unable or unwilling to control the individuals who had
harassed, threatened, and attempted to rape her. In the
alternative, the BIA found that, even assuming Kaur had
2
Although the IJ questioned the veracity of two affidavits in the
record, she did not question the credibility of Kaur’s testimony.
10 KAUR V. WILKINSON
demonstrated past persecution, she had not met her burden
of showing she could not safely relocate within India. The
BIA likewise dismissed her claims for humanitarian asylum,
withholding of removal, and CAT relief.
Kaur timely petitioned for review.
III.
We have jurisdiction under 8 U.S.C. § 1252(a). Because
the IJ found Kaur credible, her “statements must be taken as
true.” Mendez-Gutierrez v. Gonzales, 444 F.3d 1168, 1171
(9th Cir. 2006). “Where the BIA conducts its own review of
the evidence and law, rather than adopting the IJ’s decision,
our review is limited to the BIA’s decision, except to the
extent the IJ’s opinion is expressly adopted.” Guerra v.
Barr, 951 F.3d 1128, 1132 (9th Cir. 2020) (quoting
Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir. 2012)).
“[W]e review de novo both purely legal questions and mixed
questions of law and fact.” Xochihua-Jaimes v. Barr,
962 F.3d 1175, 1183 (9th Cir. 2020) (alteration in original)
(quoting Cordoba v. Holder, 726 F.3d 1106, 1113 (9th Cir.
2013)). “Whether particular acts constitute persecution for
asylum purposes is a legal question . . . review[ed] de novo.”
Boer-Sedano v. Gonzales, 418 F.3d 1082, 1088 (9th Cir.
2005) (emphasis removed). Only the “BIA’s findings of fact
[are reviewed] for substantial evidence.” Padilla-Martinez
v. Holder, 770 F.3d 825, 830 (9th Cir. 2014).
IV.
To be eligible for asylum, Kaur must demonstrate that
she “is unable or unwilling” to return to India “because of
persecution or a well-founded fear of persecution on account
of . . . [her] political opinion.” 8 U.S.C. § 1101(a)(42)(A).
If a petitioner demonstrates that she has suffered past
KAUR V. WILKINSON 11
persecution, “then fear of future persecution is presumed.”
Deloso v. Ashcroft, 393 F.3d 858, 863 (9th Cir. 2005). To
demonstrate past persecution, Kaur must establish that
(1) her “treatment rises to the level of persecution;” (2) “the
persecution was committed by the government, or by forces
that the government was unable or unwilling to control” and
(3) “the persecution was on account of one or more protected
grounds,” such as political opinion. Bringas-Rodriguez v.
Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc)
(quoting Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th
Cir. 2010)).
It is uncontested that Kaur had suffered past physical
abuse and death threats on account of her political opinion.
However, the BIA concluded that she had failed to establish
that the abuse and threats rose to the level of persecution or
that it was “committed by the government, or by forces that
the government was unable or unwilling to control.” Each
of these conclusions was marred by legal error, which we
discuss in turn below.
A.
The BIA concluded that although some forms of “sexual
assault short of rape can and do[] constitute persecution,” the
attempted gang rape could not rise to the level of persecution
unless Kaur produced “evidence of treatment for
psychological harm or further specific testimony regarding
ongoing issues” stemming from the attack. But this is not
the law. When a petitioner demonstrates that she has
suffered an attempted rape, she need not adduce additional
evidence of harm—psychological or otherwise—to establish
past persecution. Attempted rape itself is a severe violation
of bodily integrity and autonomy, and so is itself almost
always a form of persecution.
12 KAUR V. WILKINSON
“‘Persecution is an extreme concept and has been
defined as the infliction of suffering or harm . . . in a way
regarded as offensive.’” Guo v. Sessions, 897 F.3d 1208,
1213 (9th Cir. 2018) (quoting Gu v. Gonzales, 454 F.3d
1014, 1019 (9th Cir. 2006)). The hallmarks of persecutory
conduct include, but are not limited to, the violation of
bodily integrity and bodily autonomy. See Singh v. I.N.S.,
134 F.3d 962, 967 (9th Cir. 1998) (explaining that
persecution includes “bodily harm or a threat to life or
liberty”). Thus, we have concluded that “‘physical violence
is persecution.’” Ming Dai v. Sessions, 884 F.3d 858, 870
(9th Cir. 2018) (quoting Li v. Holder, 559 F.3d 1096, 1107
(9th Cir. 2009)).
We have consistently treated rape as one of the most
severe forms of persecution an asylum-seeker can suffer.
Rape and sexual violence have a long and tragic history as
weapons of war. 3 They are often an “atrocious” form of
physical violence. See Garcia-Martinez, 371 F.3d at 1072;
Lopez-Galarza v. I.N.S., 99 F.3d 954, 962 (9th Cir. 1996)
(“Rape at the hands of government authorities while
imprisoned on account of one’s political views can be an
atrocious form of punishment indeed.”); see also Robin L.
3
The historical use of rape and sexual violence as weapons of war
is well-documented. See Kelly D. Askin, Prosecuting Wartime Rape and
Other Gender-Related Crimes Under International Law, 21 Berkeley J.
Int’l L. 288, 289–297 (2003). Sexual violence remains a widespread
form of persecution today. See Garcia-Martinez v. Ashcroft, 371 F.3d
1066, 1076 (9th Cir. 2004) (regarding the use of sexual violence as a
form of persecution in Guatemala’s civil war); Note, Emily R. Chertoff,
Prosecuting Gender-Based Persecution: The Islamic State at the ICC,
126 Yale L.J. 1050, 1056–63 (2017) (discussing the use of sexual
violence to persecute Yazidi women living in Iraq and Syria); Note,
Marra Guttenplan, Granting Asylum to Persecuted Afghan Western
Women, 12 Cardozo J.L. & Gender 391, 404–05 (2005) (discussing the
use of sexual violence to persecute Afghan women).
KAUR V. WILKINSON 13
West, Legitimating the Illegitimate: A Comment on Beyond
Rape, 93 Colum. L. Rev. 1442, 1448 (1993) (calling rape a
“spiritual murder”). Indeed, a persecutor uses sexual
violence not only to violate the bodily integrity of the victim,
but to gain “‘power and control.’” Garcia-Martinez,
371 F.3d at 1076 (quoting Margaret A. Cain, The Civil
Rights Provision of the Violence Against Women Act,
34 Tulsa L. J. 367, 407 n.32 (1999)); see also Ali v. Ashcroft,
394 F.3d 780, 787 (9th Cir. 2005) (explaining it is a “myth
that rape is about sex instead of domination and control”
(citation omitted)). Thus, in addition to being a highly
offensive invasion of another’s bodily integrity, rape
violates our most treasured notions of bodily autonomy. Cf.
Furman v. Georgia, 408 U.S. 238, 458 (1972) (Powell, J.,
dissenting) (noting that rape “is widely viewed as the most
atrocious of intrusions upon the privacy and dignity of the
victim”).
Rape and other forms of sexual violence have a profound
psychological impact on the victim. Sitting en banc, we have
explained that rape’s psychological effects are “‘severe and
long-lasting’” and include “‘avoidance of situations that
trigger memories of the violation, profound feelings of
shame, [and] difficulty remembering events.’” Bringas-
Rodriguez, 850 F.3d at 1070–71 (alteration in original)
(quoting Lopez-Galarza, 99 F.3d at 962). In Lopez-Galarza,
we surveyed the medical evidence regarding the
psychological effect of rape, and noted that:
The effects of rape appear to resemble the
effects of torture. A recent article compared
the psychological sequelae of rape survivors
to the psychological distress endured by
survivors of abuse constituting torture under
international law, and concluded that the
14 KAUR V. WILKINSON
suffering of rape survivors is strikingly
similar in intensity and duration to the
suffering endured by torture survivors.
99 F.3d at 963 (quotation marks omitted) (citing Note,
Torture by Means of Rape, 84 Georgetown L.J. 1913, 1931
(1996)). The comparison between the psychological effects
of rape and the psychological effects of torture is telling. We
have elsewhere explained that “torture is per se
disproportionately harsh; it is inherently and impermissibly
severe; and it is a fortiori conduct that reaches the level of
persecution.” 4 Nuru v. Gonzales, 404 F.3d 1207, 1225 (9th
Cir. 2005). Thus, rape’s physical and psychological effects
are equivalent to the most severe horrors inflicted upon
asylum seekers.
We have also explained that some forms of physical
violence are so extreme that even attempts to commit them
constitute persecution. Indeed, we have held that attempted
murder constitutes persecution. Lopez v. Ashcroft, 366 F.3d
799, 803 (9th Cir. 2004); Madrigal v. Holder, 716 F.3d 499,
504 n.2 (9th Cir. 2013) (“[M]urder attempts constitute
persecution.” (citing Lopez, 366 F.3d at 803)); see also
Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1233
(11th Cir. 2007) (“Put simply, attempted murder is
persecution.” (citing Deloso, 393 F.3d at 860)). In fact,
because murder is perhaps the ultimate threat to bodily
integrity, “[i]n certain [] cases, we have held that . . . death
4
In Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1069 (9th Cir.
2006), the dissent characterized a petitioner’s description of one past
incident of abuse as “attempted torture,” but declined to state whether
the dissenting judge would consider that event persecution. Otherwise,
to the best of our knowledge, neither our court nor any of our sister
circuits have issued a precedential opinion regarding whether “attempted
torture” constitutes persecution.
KAUR V. WILKINSON 15
threats can constitute a primary part of a past persecution
claim.” Lim v. I.N.S., 224 F.3d 929, 936 (9th Cir. 2000)
(emphasis added). Similarly, because kidnapping involves
the extreme loss of bodily autonomy, attempted kidnapping
can constitute persecution. See Arteaga v. I.N.S., 836 F.2d
1227, 1231–32 (9th Cir. 1988), abrogated on other grounds
by I.N.S. v. Elias-Zacarias, 502 U.S. 478 (1992) (noting that
the petitioner was “threatened with kidnapping or
conscription,” and that because “[f]orced recruitment by a
revolutionary army is tantamount to kidnapping,” this
attempted kidnapping constitutes persecution); see also
Sangha v. I.N.S., 103 F.3d 1482, 1487 (9th Cir. 1997) (citing
Arteaga, 836 F.2d at 1232, in holding that an attempt to
forcibly conscript the petitioner, tantamount to attempted
kidnapping, constitutes persecution). 5
Similar to attempted murder and attempted kidnapping,
attempted rape almost always constitutes persecution. 6
5
In Elias-Zacarias, the Supreme Court explained that when a
petitioner resists forced recruitment into a guerilla organization, that fact
alone does not demonstrate that the attempted forced recruitment was on
account of the petitioner’s political opinion. 502 U.S. at 483–84.
However, even after Elias-Zacarias, we have continued to hold that
attempted kidnapping constitutes persecution. Sangha, 103 F.3d at 1487.
6
We do not purport to fully define the boundaries of attempted rape
and persecution or any space that may exist between the concepts, other
than to acknowledge that they are not coterminous. Future cases may
illustrate circumstances where (1) a substantial step towards attempted
rape is present but (2) that substantial step is not so “extreme” or “severe”
as to constitute persecution. See Ghaly v. INS, 58 F.3d 1425, 1431 (9th
Cir. 1995). For example, one can imagine a situation where a likely
persecutor is apprehended or otherwise prevented from committing rape
while en route to the location where he expects the intended victim to be.
Such a circumstance may constitute a substantial step toward attempted
rape yet fail to create any possible imminency of danger that is
16 KAUR V. WILKINSON
Attempted rape, like rape itself, carries the hallmarks of
persecutory conduct. As our sister circuits have recognized,
attempted rape violates notions of bodily autonomy almost
as much as rape itself. For example, in Nakibuka v.
Gonzales, the Seventh Circuit considered the asylum claim
of a Ugandan woman who had been attacked by government
soldiers. 421 F.3d 473, 476–77 (7th Cir. 2005). During the
course of this attack, one of the soldiers had “unzipped his
pants and threatened to rape” the woman. Id. at 475.
Although the IJ had rejected the petitioner’s asylum claim in
part by “minimiz[ing]” this attempted rape, the Seventh
Circuit explained:
[W]e are unwilling to dismiss so casually a
threat of imminent rape. The threatened rape
was one way for the soldiers to express their
domination and control over [the petitioner],
as well as a way to send a message to [her]
about what might happen if [she did not stop
her political activities].
Id. at 477 (first citing Ali, 394 F.3d at 787; and then citing
Lopez-Galarza, 99 F.3d at 959, for the proposition that “rape
sufficiently “extreme” or “severe” so as to also constitute persecution.
Id. However, we are not convinced that an attempted rape by a gang of
men, who go so far as to arrive where they reasonably expect the
intended victim to be, in order to suppress the intended victim’s political
opinion, will fail to constitute persecution merely because the intended
victim was miraculously absent. We would not categorically diminish
such a horrific and potentially imminent assault as less than “extreme”
or “severe.” Id.KAUR V. WILKINSON 17
is a form of persecution if done on account of [the] victim’s
actual or imputed political opinion”). 7
Similarly, in Uwais v. U.S. Attorney General, the Second
Circuit considered the asylum application of a petitioner
whom a police officer had attempted to rape during civil
strife in Sri Lanka. 478 F.3d 513, 516 (2d Cir. 2007). The
BIA had rejected her claim, concluding that the attempted
rape was the result of sexual desire and not persecutory
intent. Id. at 518. In response, the Second Circuit explained
that the attempted rape in that case could not be viewed as
“simply a criminal act,” id. (quoting Garcia-Martinez,
371 F.3d at 1072), in part because “sexual violence in the
context of civil strife is often not about sex, but instead about
domination, intimidation, and control,” id. (citing Ali,
394 F.3d at 787). Accordingly, the Second Circuit remanded
to the BIA to consider whether the attempted rape
constituted past persecution on account of the petitioner’s
political opinion. Id. at 519. Thus, the decisions of the
Second and Seventh Circuits support our conclusion that
because attempted rape is itself a violation of the autonomy
of the victim, it can form the basis of a claim to past
persecution itself.
Furthermore, as this case demonstrates, attempted rape
is almost always a form of sexual assault. The Model Penal
Code defines sexual assault as nonconsensual or offensive
sexual contact. 8 Sexual Assault, Model Penal Code § 213.4;
7
In Nakibuka, the Seventh Circuit did not reach, as we do here, how
attempted rape is almost always a form of sexual assault, which we have
held constitutes persecution. See Lopez-Galarza, 99 F.3d at 959.
8
In relevant part, the Model Penal Code defines one who commits
a sexual assault as “[a] person who has sexual contact with another not
his spouse, or causes such other to have sexual contact with him, is guilty
18 KAUR V. WILKINSON
see also Angoucheva v. I.N.S., 106 F.3d 781, 786 (7th Cir.
1997) (equating “attempted rape” and “sexual assault” for
purposes of analyzing a petitioner’s claim to past
persecution). The attempted gang rape of Kaur—with many
men ripping at her clothes in order to force themselves on
her—falls squarely within this definition. When discussing
rape as a form of persecution, we have consistently been
careful to note that sexual assault short of rape constitutes
persecution as well. See Lopez-Galarza, 99 F.3d at 959(listing both rape and sexual assault as forms of persecution);
Shoafera v. I.N.S., 228 F.3d 1070, 1074 (9th Cir. 2000)
(same); see also Haider v. Holder, 595 F.3d 276, 288 (6th
Cir. 2010) (noting that “sexual humiliation,” combined with
other lesser forms of maltreatment, can constitute
persecution). This reflects our understanding that violence
that is sexual in nature assaults the body and tortures the
mind in a manner so severe that it can constitute an
“atrocious” form of persecution. See Garcia-Martinez,
371 F.3d at 1072.
Sexual assault is more than just a violation of bodily
autonomy. Just as rape’s severe psychological effects
include shame and a clouded memory, Bringas-Rodriguez,
850 F.3d at 1071, sexual assault’s psychological effects
include “self-blame, a pervasive feeling of loss of control,
and memory loss or distortion.” United Nations High
Commissioner for Refugees (UNHCR), Guidelines on the
Protection of Refugee Women, ¶ 72, (July 1991) 9; see also
of sexual assault, a misdemeanor, if . . . he knows that the contact is
offensive to the other person. . . . Sexual contact is any touching of the
sexual or other intimate parts of the person for the purpose of arousing
or gratifying sexual desire.” § 213.4.
9
https://tinyurl.com/y66tghgm (last visited Aug. 21, 2020).
KAUR V. WILKINSON 19
UNHCR, Handbook for the Protection of Women and Girls,
5.3.1.1 (2008) (noting that “sexual and gender-based
violence” of all forms leads to “emotional and psychological
trauma”) 10; cf. Bringas-Rodriguez, 850 F.3d at 1071 (relying
on UNHCR guidelines to understand the effects of sexual
violence). Because attempted rape is a form of sexual
assault, and sexual assault is a form of persecution,
attempted rape also constitutes a form of persecution. 11 The
BIA committed legal error by requiring Kaur to produce
additional evidence of ongoing trauma or psychological
treatment to establish a claim to past persecution on account
of attempted rape. When evaluating whether a petitioner has
been persecuted “on account of” a protected ground, we
examine the persecutor’s motive, not the victim’s
perspective. Garcia-Milian v. Holder, 755 F.3d 1026, 1031
(9th Cir. 2014) (citing Elias-Zacarias, 502 U.S. at 483).
Similarly, in evaluating whether past treatment rises to the
level of persecution, we do not look to the level of harm
experienced by the petitioner. Rather, “[t]he operative
question is ‘whether . . . the treatment [the victim] received
rises to the level of persecution.’” Mihalev v. Ashcroft,
388 F.3d 722, 729 (9th Cir. 2004) (emphasis added) (quoting
Gormley v. Ashcroft, 364 F.3d 1172, 1176–77 (9th Cir.
2004)). In other words, it is the conduct of the persecutor,
not the subjective suffering from the perspective of the
victim, that matters for purposes of determining what
constitutes persecution. See Nuru, 404 F.3d at 1225 (torture
10
https://tinyurl.com/y2mnlw39 (last visited Aug. 21, 2020).
11
The dissent does not contest the fact that attempted rape almost
always constitutes sexual assault, which we have recognized can amount
to persecution. Lopez-Galarza, 99 F.3d at 959. The BIA acknowledged
as much in this very case, stating that “sexual assault short of rape can
and does constitute persecution.”
20 KAUR V. WILKINSON
is “a fortiori conduct that reaches the level of persecution”
(emphases altered)); see also Madrigal v. Holder, 716 F.3d
499, 505 (9th Cir. 2013) (examining the persecutors’ “course
of conduct”). The degree or manifestation of the
psychological harm endured by Kaur, or any other survivor
of attempted rape, is therefore legally irrelevant to
determining whether her attempted rape constituted
persecution.
The BIA’s requirement of demonstrating additional or
ongoing psychological harm makes little practical sense as
well. Just like rape, attempted rape inflicts serious
psychological wounds. 12 See Susan Reese et al., Lifetime
Prevalence of Gender-Based Violence in Women and the
Relationship With Mental Disorders and Psychosocial
Function, 306 J. Am. Med. Ass’n 513, 513 (2011) (studying
the correlation between all forms of gender-based violence,
including attempted rape, and long-lasting mental health
concerns); Kirsten Johnson et al., Association of Sexual
Violence and Human Rights Violations With Physical and
Mental Health in Territories of the Eastern Democratic
Republic of the Congo, 304 J. Am. Med. Ass’n 553, 559
(2010) (studying the effects of sexual violence, including
attempted rape, in a conflict zone). Because the
psychological harm of an attempted rape is inherent in the
12
In Gilaj v. Gonzales, 408 F.3d 275, 286 (6th Cir. 2005), the Sixth
Circuit considered the case of a petitioner who had suffered repeated
police harassment, including one attempted act of sexual violence. In
concluding that the BIA wrongly denied her asylum claim, the Sixth
Circuit explained that this attempted act of sexual violence, coupled with
the other significant instances of police harassment, was evidence that
the petitioner had been “targeted by her government for physical and
psychological abuse.” Id. at 287. Thus, the Sixth Circuit has also
recognized the psychological impact that an attempted rape can have
when coupled with other persecutory conduct.
KAUR V. WILKINSON 21
act itself, there is no need to require asylum seekers—many
of whom have limited resources—to gather and produce
evidence of ongoing psychological harm or treatment to
supplement their claims. 13 Cf. Mashiri v. Ashcroft, 383 F.3d
1112, 1120 (9th Cir. 2004) (noting that conduct aimed at
causing severe “emotional or psychological” harm
constitutes persecution).
In light of the foregoing, there can be little question that
the attempted rape of Kaur rises to the level of persecution.
A group of Congress Party agents—all men—dragged her
into the street and ripped off her clothes with the intent of
raping her. If not for Kaur’s successful cries for help, she
would have been the victim of a gang rape. Even so, this
attack left her bloodied and bruised, and in need of medical
treatment. This attack alone is enough to constitute
persecution, and the BIA erred by diminishing this serious
sexual violence and insisting that Kaur produce evidence of
additional or ongoing harms.
Furthermore, that Kaur suffered past persecution is plain
on the record before us. In addition to the attempted gang
rape, Kaur endured death threats and her parents were
attacked on multiple occasions. Death threats alone can
constitute persecution, Lim, 224 F.3d at 936, and “[v]iolence
13
The Government appears to suggest that even if we conclude that
a petitioner who has suffered an attempted rape need not produce
additional evidence of long lasting psychological harm in order to
establish past persecution, we should still require the petitioner to show
that the attempted rape required serious medical attention at some point.
We decline to adopt this rule. For the reasons stated in this opinion, an
attempted rape that involves only minimal physical contact is still an
extreme threat to a person’s bodily autonomy that inflicts psychological
wounds. In any event, Kaur suffered injuries during her attempted rape
that did require the attention of a medical doctor.
22 KAUR V. WILKINSON
directed against . . . family members provides support for a
claim of persecution and in some instances is sufficient to
establish persecution,” Baballah v. Ashcroft, 367 F.3d 1067,
1074–75 (9th Cir. 2004); see also Mashiri, 383 F.3d at 1120.
Looking to the “totality of the circumstances,” Guo v.
Ashcroft, 361 F.3d 1194, 1203 (9th Cir. 2004), Kaur has
“suffered [past] persecution” on account of her political
opinion, Mendoza-Pablo v. Holder, 667 F.3d 1308, 1315
(9th Cir. 2012). 14
B.
We next turn to the BIA’s legally erroneous
understanding of who persecuted Kaur. To establish past
14
The Government cites five cases to suggest that Kaur’s past
treatment does not rise to the level of past persecution. However, none
of the cases cited by the Government involved an attempted rape by a
mob of men, resulting in injuries that required medical treatment. See
Prasad v. I.N.S., 47 F.3d 336, 339 (9th Cir. 1995) (no past persecution
where petitioner was “placed in a jail cell” for “four to six hours” during
which, “[a]t some point, [petitioner] was hit on his stomach and kicked
from behind” and petitioner “did not require medical treatment”); Halim
v. Holder, 590 F.3d 971, 975–76 (9th Cir. 2009) (no past persecution
where petitioner was subject to repeated discrimination and suffered one
incident in which he was beaten by a mob); Wakkary v. Holder, 558 F.3d
1049, 1059–60 (9th Cir. 2009) (no past persecution where petitioner was
beaten by youths when he was in his teens and was once threatened by a
mob); Gu, 454 F.3d at 1017–18 (no past persecution where petitioner
was hit ten times with a rod “but required no medical treatment”); Lanza
v. Ashcroft, 389 F.3d 917, 934 (9th Cir. 2004) (no past persecution where
petitioner was “pushed, punched,” and otherwise threatened); Hoxha v.
Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003) (no past persecution
because, even though the petitioner had endured non-sexual violence, the
violence was not officially sponsored). Thus, each of these cases is
distinguishable. In any event, a petitioner’s failure to “seek medical
treatment for the [injury] suffered is hardly the touchstone of whether
[the harm] amounted to persecution.” Lopez, 366 F.3d at 803.
KAUR V. WILKINSON 23
persecution, Kaur must show that her “persecution was
committed by the government, or by forces that the
government was unable or unwilling to control.” Bringas-
Rodriguez, 850 F.3d at 1062 (quoting Baghdasaryan,
592 F.3d at 1023). Kaur claimed that she was the victim of
persecution by the government itself. For example, Kaur
repeatedly told the IJ that she was afraid of the “Congress
government” and its agents because her attackers were
agents of “the Congress government.” 15 These statements
referred to the Indian National Congress Party, one of India’s
major political parties and one of the leading parties in
Punjab. See Encyc. Britannica, Indian National Congress
Party (discussing the national dominance of the Congress
Party in the latter half of the Twentieth Century, and its
continued dominance in the north and northeastern regions
of India, where Punjab is located). 16 In her brief before the
BIA, Kaur also emphasized that she was the victim of
persecution by “government actors,” explaining that “the
members of the Congress Party who harmed Respondent
were working on behalf of their party, [and] on behalf of
those members who work for the government.”
The administrative record reflects that when Kaur’s
persecution began, the Congress Party was already part of
the government in Punjab: it held 46 out of 117 seats in the
state legislature and was a key opposition party with the
15
Early in her testimony, Kaur identified her persecutors as “the
people of the Congress government.” Later, the following exchange
took place between Kaur and her attorney:
Attorney: Who were harassing you?
Kaur: The Congress was.
16
https://tinyurl.com/y85z2lkl (last visited Aug. 21, 2020).
24 KAUR V. WILKINSON
ability to shape laws and exert influence over the civil
service. The Congress Party became the ruling party in the
state of Punjab in March 2017, mere months after Congress
Party agents attempted to gang rape Kaur, telling her that
they were doing this to her because she was “working for the
Mann Party” and “not supporting [the Congress Party] in any
way.” Thus, some of the more severe forms of Kaur’s
persecution occurred during the Congress Party’s electoral
rise. Furthermore, the last known persecutory event against
Kaur and her family occurred in 2018, a full year after the
Congress Party’s electoral victory made it the official head
of the state government. Finally, from the time Kaur
appeared before the IJ through the present, the Congress
Party has remained the leader of the Punjab government. See
Government of Punjab India, Chief Minister (listing as Chief
Minister, Amarinder Singh, who was elected to that position
in March 2017). 17
In Reyes-Guerrero v. I.N.S., 192 F.3d 1241, 1243 (9th
Cir. 1999), we found that the petitioner was able to establish
past persecution in a situation analogous to Kaur’s.
Although the source of the petitioner’s persecution was not
directly at issue there, we treated persecution by members of
Colombia’s Liberal Party—a party that rose from a minority
member of the national legislature to the ruling party during
the course of the petitioner’s persecution—as if the
government itself were the persecutor. 18 See id. at 1243–44
17
https://tinyurl.com/yxrpvz65 (last visited Aug. 21, 2020).
18
It is also notable that, during the course of his persecution, the
petitioner in Reyes-Guerrero requested, and received, protection from
the national government. 192 F.3d at 1243. The Government claims that
Kaur did not try hard enough to request assistance from local police, and
so the BIA was correct in concluding that the government of India might
have protected her from her persecutors. However, as Reyes-Guerrero
KAUR V. WILKINSON 25
(describing persecution inflicted on the petitioner from 1984
until 1991); Eduardo Dargent & Paula Muñoz, Democracy
Against Parties? Party System Deinstitutionalization in
Colombia, 3 J. Pol. Latin Am. 43, 51 (2011) (describing the
Liberal Party’s election to national power in 1986). As
Reyes-Guerrero shows, when a petitioner suffers
persecution at the hands of a major political party both
during and after its rise to power from a minority voting bloc
in the legislature to the head of government, the source of
the persecution is the government itself.
In Reyes-Guerrero, we assumed that the petitioner had
suffered past persecution even though, as here, members of
an opposition party were the perpetrators of the persecutory
acts. 192 F.3d at 1246. We did not address whether the
government was unable or unwilling to control the
opposition party members. Id. Reyes-Guerrero does not
stand alone. We had previously held that an asylum
petitioner demonstrated past persecution for his political
opinion based on testimony that, among other things, he
“was shot at by opposition party members and narrowly
missed death the last time he visited [his home country].”
Ajayi v. I.N.S., 962 F.2d 13 (Table), at *4 (9th Cir. 1992).
In rejecting Kaur’s claim to past persecution, the BIA
neither mentioned that Kaur had claimed persecution by her
government, nor did it discuss the record evidence 19 and
shows, even if Kaur had requested and received assistance from the
police, the source of her persecution was nevertheless the government
itself.
19
Kaur’s credible testimony about the attempted gang rape in broad
daylight on a public street itself demonstrates that the Congress Party
members acted with impunity. An inference can be drawn that the
Congress Party members who attacked her thought they were the “law.”
26 KAUR V. WILKINSON
precedent supporting this claim. Instead, it faulted her for
failing to show that the government was unable or unwilling
to control her persecutors. 20 But when a petitioner credibly
asserts that her persecutor is the government itself, she is not
required to show that the persecutor cannot be controlled.
See Jahed v. I.N.S., 356 F.3d 991, 1000 (9th Cir. 2004);
Baballah v. Ashcroft, 367 F.3d 1067, 1078 (9th Cir. 2004)
(holding that “when the government is responsible for
persecution, the third prong of our asylum inquiry is satisfied
without further analysis” into whether the government was
“unable or unwilling” to control the persecutors). It
therefore appears that the BIA conducted the wrong analysis.
Furthermore, “‘[t]he BIA is not free to ignore arguments
raised by a petitioner.’” Barroso v. Gonzales, 429 F.3d
1195, 1208 (9th Cir. 2005) (alterations removed) (quoting
Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005)).
Rather than “guess” at the BIA’s rationale for rejecting
Kaur’s claim that she was persecuted by government
actors—if it had one—we remand for further consideration
of this argument. Recinos de Leon v. Gonzales, 400 F.3d
1185, 1194 (9th Cir.2005) (quoting SEC v. Chenery Corp.,
332 U.S. 194, 196–97 (1947)).
The dissent fails to consider the complexity of multi-
party parliamentary systems such as India’s (and Punjab’s in
particular). 21 The analysis becomes further strained in cases
20
Because the BIA did not even address Kaur’s contention that she
was persecuted by the government, it merely assumed that the Congress
Party members who attacked her were “private citizens,” contrary to the
dissent’s argument, Dissent at 32. Accordingly, the BIA is not entitled
to substantial evidence review on this point. Barroso v. Gonzales, 429
F.3d 1195, 1208 (9th Cir. 2005).
21
For example, a minor party that receives no more than 10% of a
legislature’s seats may nonetheless form a coalition with a larger party
KAUR V. WILKINSON 27
of parliamentary minority governments, where no party
commands a majority of seats (nor can any coalition be
formed), and the caretaker government must rely on the
support of other parties on an ad hoc basis. See, e.g., Ellen
Manning, General election 2019: What is a minority
government?, Yahoo News (Nov. 25, 2019). 22 Under such
a system, the dissent’s approach would make it hard to argue
that any party truly forms the “government” as defined by a
working majority. 23 In sum, the distinction between an
to form a working governmental majority, or even less than 1% for some
parties in India’s current governing coalition. See, e.g., Rakesh Mohan
Chaturvedi, BJP, JDU, LJP finalise 17:17:6 seat sharing formula for
Bihar Lok Sabha polls, The Economic Times (Dec. 24, 2018),
https://tinyurl.com/y8buh6g9 (last accessed Oct. 14, 2020) (noting that
one party joined now Prime Minister Narendra Modi’s governing
coalition despite winning only 3 seats out of the 543 in India’s lower
house). Such a party may command far less support from the population
and boast far fewer legislators than a larger party that is not a part of the
governing coalition, but, under the dissent’s view, the actions of the
smaller party’s members may be described as those of the government
whereas members of the potentially far larger party would be dismissed
as merely “private actors.”
22
https://tinyurl.com/y3veorje (last accessed Oct. 14, 2020).
23
That is to say nothing of less formal arrangements that are
occasionally made. For example, after the United Kingdom’s general
election in 2017, the Conservative Party formed such a minority
government after entering into a “confidence and supply” agreement
with the Democratic Unionist Party (“DUP”) whereby the latter agreed
to support the former on various pieces of legislation in exchange for
certain concessions. Conservatives agree pact with DUP to support May
government, BBC News (June 26, 2017), https://tinyurl.com/y6as7unw
(last accessed Oct. 14, 2020). While not formally a part of the governing
coalition, the DUP clearly provided necessary support for the
Conservatives, but the dissent’s approach would nonetheless decline to
see any persecutory conduct by DUP members as even possibly those of
the “government.”
28 KAUR V. WILKINSON
“opposition party” and conceptions of who represents the
“government” is considerably more nuanced than the dissent
suggests. 24
Furthermore, the dissent fails to account for the fact that
a persecutory act against Kaur and her family took place a
year after the Congress Party came to power in Punjab, and
it seems to miss the point that the BIA never addressed
Kaur’s claim that she was persecuted by government actors
at all. When the BIA considers this claim, as we direct on
remand, it should consider the totality of the persecutory acts
against her, including those where it was undisputed that the
Congress party controlled the government in Punjab.
V.
If, on remand, the BIA concludes that Kaur’s past
persecution was at the hands of her government, she will be
24
India’s long history of pogroms against political or ethnic
minorities by party mobs or paramilitaries with the tacit, or in some cases
explicit, approval of local and national government officials, which
continues to the present day, is hardly comparable to American
democratic processes and its two-party system. See Dissent at 34–35;
see also, e.g., Samanth Subramanian, How Hindu supremacists are
tearing India Apart, The Guardian (Feb. 20, 2020),
https://tinyurl.com/vyfgz9k (last accessed Dec. 7, 2020); Shreeya Sinha
and Mark Suppes, Timeline of the Riots in Modi’s Gujurat, NY Times
(Apr. 4, 2014), https://tinyurl.com/y3kn3xat (last accessed Dec. 7, 2020).
There is even a tradition, as demonstrated in this very case, of politically
sanctioned mob violence specifically by Congress Party-affiliated
groups against groups advocating for an independent Sikh state of
Khalistan. Akhilesh Pillalamarri, India’s Anti-Sikh Riots, 30 Years On,
The Diplomat (Oct. 31, 2014), https://tinyurl.com/y2tjwhot (last
accessed Dec. 7, 2020) (noting that “[b]etween October 31 and
November 3, 1984, over 8,000 Sikhs were murdered in riots organized
and supported by numerous members of India’s then-ruling Congress
Party”).
KAUR V. WILKINSON 29
presumed to have a fear of future persecution. Deloso,
393 F.3d at 863. The BIA must then determine whether the
government can rebut this presumption by showing either a
fundamental change in circumstance or that Kaur “could
avoid future persecution by relocating” internally within
India. 25 Id. at 864 (quoting 8 C.F.R. §§ 208.13(b)(1)(i), (ii)).
In the prior proceedings, the BIA concluded that even if
Kaur had demonstrated past persecution, she had not carried
her burden of “show[ing] that she could not safely relocate
within India.” At the time, the BIA did not have the benefit
of our recent decision in Singh v. Whitaker, in which we
emphasized that once a petitioner establishes past
persecution, “the burden is on the government” to show that
the petitioner “can reasonably relocate internally.” 914 F.3d
at 659. Furthermore, Singh explained that the BIA must
conduct an “individualized analysis” to determine whether
relocation is possible. Id. at 661. That analysis must take
account of the “persons or entities that caused the past
persecution,” “the nature and extent of the persecution”
suffered by Kaur, and any “future political activities” by
Kaur. 26 Id. Thus, on remand, the BIA should conduct a
thorough, individualized analysis of Kaur’s ability to
25
Because the BIA’s rejection of Kaur’s applications for
withholding of removal, humanitarian asylum, and CAT relief depended
to some extent on the two legal errors discussed above, we likewise grant
the petition as to these claims and remand for further proceedings on an
open record.
26
In justifying its conclusion that Kaur could safely relocate in
India, the BIA offered only a single sentence stating that Kaur “fears a
few men from her local area, and the record does not establish that she
has an objectively reasonable fear of harm from these men elsewhere in
India.”
30 KAUR V. WILKINSON
relocate internally, placing the burden on the government as
required under Singh.
PETITION GRANTED; REMANDED.
MILLER, Circuit Judge, dissenting:
Chanpreet Kaur seeks to establish eligibility for asylum
on the basis of past persecution. In the court’s evaluation of
that claim, there is much with which I agree. I agree that both
rape and attempted rape can constitute persecution. Cf.
Akosung v. Barr, 970 F.3d 1095, 1105 (9th Cir. 2020). I
agree that an asylum applicant should not bear a heightened
evidentiary burden to show psychological harm resulting
from sexual assault, including attempted rape. And I agree
that the harm Kaur suffered was sufficiently severe to be
characterized as persecution.
But to constitute “persecution” as that term is used in
asylum law, suffering or harm must have been “inflicted
either by the government of a country or by persons or an
organization that the government was unable or unwilling to
control.” Matter of Acosta, 19 I. & N. Dec. 211, 222 (B.I.A.
1985); accord Rahimzadeh v. Holder, 613 F.3d 916, 920 (9th
Cir. 2010). No matter how severe it may be, purely private
violence does not constitute persecution unless the
government is unable or unwilling to control it. The Board
of Immigration Appeals determined that Kaur’s attackers
were not part of the government and that the government was
not unable or unwilling to control them. Because substantial
evidence supports that finding, I would deny the petition for
review.
KAUR V. WILKINSON 31
Kaur cites several incidents as past persecution, but by
far the most serious is the attempted rape that took place in
October 2016. The other incidents consisted of threats to
Kaur or attacks on other members of her family, rather than
violence directed at her. The Board determined that those
other incidents did not constitute past persecution, and the
court does not suggest that they would compel a grant of
relief by themselves. The case therefore turns on the October
2016 attack, so, like the court, I will focus on it.
Kaur testified that she was attacked by a group of men
whom she described as “members of the Congress party”
who objected to her membership in a rival political party. At
the time, the Congress Party did not form the government
either of India or of the state of Punjab, where Kaur lived.
The immigration judge found “insufficient evidence to show
that [Kaur’s attackers] had any affiliation with the
government, that they were working for anyone in the
government or that they had any official governmental title
or authority.” The immigration judge also determined that
the men appeared to be “afraid that [Kaur] would report them
to police or have them prosecuted in local court,”
demonstrating that “the government does, in fact, arrest
perpetrators or that prosecutors charge perpetrators with
crimes in such incidents.” The Board affirmed the
immigration judge’s findings that Kaur had not shown the
requisite governmental involvement.
Kaur now claims that she was persecuted directly by the
government. The Board cannot be faulted for not addressing
that claim more directly because even under a generous
reading of Kaur’s brief to the Board, she presented it only
obliquely. The focus of her argument before the Board was
not that her attackers were part of the government, but rather
that they were persons whom the government was unable or
32 KAUR V. WILKINSON
unwilling to control. Indeed, she presented her entire
discussion of the issue under the heading “IJ erred in holding
that the Respondent had not demonstrated that the
government was unwilling or unable to control the source of
the persecution.” The Board addressed that argument,
concluding that Kaur “did not establish that the government
of India would be unwilling or unable to protect her,” and
explaining that she “did not report the incidents to the police
or establish that such reporting would be futile.” The Board
reached that conclusion based on Kaur’s testimony that her
attackers could have faced consequences in “a local city
court” if Kaur had reported them.
To be sure, Kaur did assert that “the members of the
Congress Party who harmed [her] were working on behalf of
their party, on behalf of those members who work for the
government.” But the immigration judge made a directly
contrary finding, determining that Kaur had not shown that
the men had “any affiliation with the government [or] that
they were working for anyone in the government.” The
Board endorsed that finding, stating that “[t]he men who
attacked [Kaur] were private citizens.” That statement by the
Board was not offered simply in passing; it formed a key part
of the Board’s reasoning.
The Board’s finding should be sufficient to resolve this
case. We may set aside the agency’s factual findings only if
they are not supported by substantial evidence—that is, only
if “any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); accord
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). For two
reasons, the record does not compel a contrary conclusion.
First, at the time of the attack, the Congress Party was an
opposition party; it did not form the government. It is true
that the Congress Party later formed the government in
KAUR V. WILKINSON 33
Punjab. But while the subsequent electoral fortunes of a
party may be relevant to the likelihood of future persecution,
they do not establish that the already completed attack—
committed by men who at the time were private actors—
must be deemed past persecution by the government.
Our decision in Reyes-Guerrero v. INS, 192 F.3d 1241(9th Cir. 1999), is not to the contrary. That case involved a
Colombian prosecutor who had received death threats for
investigating “crimes committed by high ranking members
of the opposition.” Id. at 1246. But the only issue we
addressed was whether the harm the petitioner had suffered
was inflicted on account of his political opinion. Id. at 1245–
46. We did not consider the source of the petitioner’s harm,
whether directly or indirectly. That is not to say that Reyes-
Guerrero was wrongly decided—in light of the then-
ongoing civil war in Colombia, if we had considered the
issue, it would not have been difficult to conclude that the
Colombian government was unable to control violence by
private actors, including opposition political parties. See
Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 668–69 (7th
Cir. 2005). Indeed, we noted that Reyes-Guerrero “requested
and was provided protection by the national security
agency,” yet he continued to receive death threats anyway.
Reyes-Guerrero, 192 F.3d at 1243–44. We did not hold that
violence or threats of violence by an opposition party are
necessarily attributable to the government. Until today, no
court has read our decision to establish that proposition.
Our decision in Ajayi v. INS, 962 F.2d 13 (9th Cir. 1992)
(unpublished table decision), is similarly unhelpful to Kaur.
The statement in that case that the petitioner had been “shot
at by opposition party members” in Nigeria does appear to
have described events that occurred before the governing
regime was “ejected from power by a military coup.” Id. at
34 KAUR V. WILKINSON
*4. But our decision made clear that the reason the petitioner
had a well-founded fear of persecution was because the new
Nigerian government had “acted . . . to target [his] family
members for persecution and reprisal.” Id. The case thus
involved future persecution by a government, not past
persecution by an opposition party. (The government might
have made this point in its brief, but it was unable to do so
because our rules prohibit litigants from citing unpublished
dispositions from before 2007, such as Ajayi. Ninth Cir. R.
36-3(c). It is contrary to fundamental principles of due
process to base our decisions on authorities that we have
designated as nonprecedential and forbidden the parties to
address.)
I fully agree that it can sometimes be difficult to identify
which parties are part of the government in a multi-party
parliamentary system. But the complexity of foreign
political systems is hardly a reason for us to set aside the
Board’s judgment and assume for ourselves the
responsibility of deciding who constituted the government
of Punjab in October 2016. It is the function of the Executive
Branch, not the courts, to determine which entity to
recognize as the government of a foreign country. See
Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 14–16
(2015). That function is a striking example of how the
administration of the immigration laws can involve
“especially sensitive political functions that implicate
questions of foreign relations”—questions that we are poorly
equipped to answer. INS v. Abudu, 485 U.S. 94, 110 (1988).
Second, even if the Congress Party had been part of the
Punjabi government in October 2016, it would not follow
that every action taken by every member of the party was an
action of the government. In the United States, for example,
the Democratic Party and the Republican Party may each, at
KAUR V. WILKINSON 35
various times, hold a majority in one House of Congress and
therefore form part of the government, but no one would say
that every action taken by a member of one of those two
parties is attributable to the United States Government.
Kaur’s attackers may have been members of the Congress
Party, but as the immigration judge explained, there is no
evidence that they “had any affiliation with the government,
that they were working for anyone in the government or that
they had any official governmental title or authority.” In the
Board’s words, “[t]he men who attacked [Kaur] were private
citizens.”
Substantial evidence supports the Board’s determination
that the harm Kaur suffered was not inflicted by the
government or by forces the government was unable or
unwilling to control. On that basis, I would deny the petition
for review.