Brar v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PARGAT SINGH BRAR, No. 21-248
Agency No.
Petitioner, A208-565-428
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 13, 2023**
Pasadena, California
Before: SANCHEZ and MENDOZA, Circuit Judges, and JACKSON,***
District Judge.
Pargat Brar, a native and citizen of India, petitions for review of a Board
of Immigration Appeals (“BIA”) decision dismissing his appeal of an
Immigration Judge (“IJ”) order denying his applications for asylum,
*
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).
***
The Honorable Brian A. Jackson, United States District Judge for
the Middle District of Louisiana, sitting by designation.
withholding of removal, and protection under the Convention Against Torture
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we review for
substantial evidence the BIA’s determination that Mr. Brar failed to show that
the harm he suffered rose to the level of persecution.1 We grant the petition
because “any reasonable adjudicator would be compelled to conclude” Mr. Brar
was persecuted. Antonio v. Garland, 58 F.4th 1067, 1072 (9th Cir. 2023)
(quoting Garland v. Ming Dai, 141 S. Ct. 1669, 1677 (2021)).
1. In November 2014, four men beat Mr. Brar for ten minutes, stopping
only after he agreed to join their political party. The police—who told Mr. Brar
that they served the attackers’ political party—refused to write a report or
protect Mr. Brar. In January 2015, Mr. Brar’s attackers called him and
threatened to kill him for failing to join their party. Then, in June 2015, they
physically assaulted Mr. Brar again; specifically, four men beat him for ten
minutes while threatening to kill him if he refused to join their party. Mr. Brar
fled India two months later, in August 2015, and his attackers still contact his
family every six months to ask about him. These facts compel a finding of
persecution. See Singh v. Garland, 57 F.4th 643, 652–57 (9th Cir. 2022);
Flores Molina v. Garland, 37 F.4th 626, 632–37 (9th Cir. 2022); Fon v.
1
“We review factual findings for substantial evidence and legal questions de
novo.” Flores Molina v. Garland, 37 F.4th 626, 632 (9th Cir. 2022). We need
not address whether de novo review should apply, or discuss the nuances of the
two standards, because the harm Mr. Brar suffered rose to the level of
persecution under the more deferential “substantial evidence” standard of
review. See id. at 633 n.2.
2
Garland, 34 F.4th 810, 813–15 (9th Cir. 2022); Aden v. Wilkinson, 989 F.3d
1073, 1082–84 (9th Cir. 2021); Guo v. Sessions, 897 F.3d 1208, 1213–17 (9th
Cir. 2018).
The BIA cites three cases to support its finding of no persecution, but
none of them involve similar facts. First, in Nagoulko v. INS, 333 F.3d 1012(9th Cir. 2003), it was “significant that Nagoulko never suffered any significant
physical violence.” Id. at 1016. That is not true for Mr. Brar. Second, Lim v.
INS, 224 F.3d 929 (9th Cir. 2000), observed that threats alone “constitute past
persecution in only a small category of cases” because “[t]hreats themselves are
sometimes hollow and, while uniformly unpleasant, often do not effect
significant actual suffering or harm.” Id. at 936. Yet the BIA ignored that we
have “consistently held that death threats alone can constitute persecution.”
Flores Molina, 37 F.4th at 634 (alteration in original) (quoting Navas v. INS,
217 F.3d 646, 658 (9th Cir. 2000)). And, in any case, Mr. Brar was not only
threatened with death multiple times, but during the June 2015 attack his
persecutors made those threats while beating him. See Fon, 34 F.4th at 815
(finding persecution when there was a connection between the threat and the
physical harm). Finally, Halim v. Holder, 590 F.3d 971 (9th Cir. 2009),
involved five unrelated instances of humiliation and harassment over a ten-year
span, rather than the sustained physical harm and death threats that Mr. Brar
suffered. Id. at 975–76.
3
We grant Mr. Brar’s petition as to his asylum claim and remand for the
BIA to address the remaining elements of past persecution.2
2. The BIA’s sole basis for denying Mr. Brar’s claim for withholding of
removal was its determination that he had “failed to meet the lower burden of
proof for asylum.” In light of our disposition above, that premise is invalid.
We also grant his petition as to his withholding of removal claim and remand to
the BIA for further consideration.
3. The BIA correctly noted that Mr. Brar did not appeal, and thereby
exhaust, the IJ’s denial of CAT protection. See 8 U.S.C. § 1252(d)(1). Mr. Brar
has waived that issue, too, by omitting it from his opening brief. Roley v.
Google LLC, 40 F.4th 903, 911 (9th Cir. 2022). We do not consider it.
PETITION GRANTED and REMANDED for further proceedings.
2
The BIA must determine whether the persecution Mr. Brar experienced was on
account of one or more protected grounds, and whether the persecution was
committed by the government, or by forces that the government was unable or
unwilling to control. See Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th
Cir. 2010).
4