Vijay Kumar v. Eric H. Holder Jr. , 728 F.3d 993 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIJAY KUMAR, No. 08-72119
Petitioner,
Agency No.
v. A072-671-421
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 11, 2013—San Francisco, California
Filed August 29, 2013
Before: John T. Noonan, Raymond C. Fisher, and
Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Noonan
2 KUMAR V. HOLDER
SUMMARY*
Immigration
The panel granted a petition for review concluding that
the Board of Immigration Appeals erred in failing to consider
the circumstances particular to petitioner’s service as a prison
guard in India in denying him asylum and withholding of
removal pursuant to the persecutor of others bar of 8 U.S.C.
§ 1158(b)(2)(A)(I).
The panel held that in determining whether petitioner’s
actions rose to the level of “personal involvement” triggering
the persecutor bar, the BIA misunderstood and misapplied
relevant precedent, including Miranda Alvarado v. Gonzales,
449 F.3d 915 (9th Cir. 2006) and Fedorenko v. United States,
449 U.S. 490 (1981). The panel remanded for the Board to
determine whether petitioner purposefully assisted in the
alleged persecution of prisoners.
COUNSEL
David J. Kaufman, San Francisco, California, for Petitioner.
Matt A. Crapo, Department of Justice, Washington, D.C., for
Respondent.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KUMAR V. HOLDER 3
OPINION
NOONAN, Circuit Judge:
Vijay Kumar petitions for review of the denial of his
appeal by the Board of Immigration Appeals (the BIA). We
hold that the BIA erred in failing to consider the
circumstances particular to Kumar’s service as a prison guard
in India. We grant the petition and remand for further
consideration.
FACTS
In June 1989, Kumar, age 24, joined the Punjab police.
He was trained for seven months and was then posted in Tarn
Tarn as a constable. After more than a year there, Kumar was
assigned to patrol the superintendent’s residence. His
primary duty was to stand in front of the gate. When visitors
came, he informed the people inside the residence.
In June 1992, Kumar was assigned to serve as staff for an
intelligence agency in Tarn Tarn. His duties were to stand in
front of the gate of the agency’s building, which was used to
house and interrogate those suspected of being a part of the
Khalistan movement seeking to create a separate Sikh
country. The suspects were kept in the “havalaat,” i.e., jail.
Kumar did not arrest, transport, or question the prisoners.
Kumar testified at his immigration hearing that he
witnessed prisoners being mistreated. The first time he
witnessed such mistreatment happened one evening, while he
was off-duty. On his way to get food from the mess hall, he
saw Inspector Sooba Singh, his superior, beating several
people in the courtyard with a rod. The beating occurred for
4 KUMAR V. HOLDER
approximately five minutes. Kumar reported what he saw to
the head constable, telling him that the beating was torturous
and not correct. The head constable told Kumar to “be quiet,”
adding “This is not in the scope of your duty.” He instructed
Kumar not to mention this type of incident again.
Kumar spoke to other constables about the mistreatment,
“many of whom used to say that this is really, really very bad,
very bad. That they should not do this, that they bring people
in and torture them like that.” The men who were tortured did
not call the constables for help. At the hearing Kumar was
asked why he did not do more to help the prisoners. Kumar
replied that he wanted to do more but that he “was just a
constable.”
During his final month at the intelligence agency, Kumar
applied for the position of head constable. He qualified for
the position because he had worked three years for the police
and had passed a test called the B-1 exam, offered once every
three years. He took the test on January 1, 1993 and became
a head constable on January 9, 1993. The duty of the head
constable consists primarily of supervising constables and
ensuring that they stand at their posts. Kumar did not witness
any of his four subordinates mistreating any prisoner.
Three days after being promoted to head constable,
Kumar spoke to Inspector Singh about the abuse he had
witnessed. He told Inspector Singh of an incident regarding
a boy, Jasbir Singh, who had served in the police force with
Kumar. The intelligence agency had suspected Jasbir of being
an extremist and had imprisoned him in the havalaat. Jasbir
had died. Kumar told Inspector Singh that “this was not
correct,” and that “it is really, really wrong that he [Jasbir]
had died injustly.” Inspector Singh responded by “calling
KUMAR V. HOLDER 5
[Kumar] bad names.” Kumar stated, “He started saying to me
whether it is wrong or right, this is not your duty. This is not
within the scope of your duty.” Inspector Singh said, “[K]eep
your mouth shut. If you . . . see these things again, just
disappear from my presence.”
Kumar testified that he found the corpses of three
prisoners who had died inside the havalaat. Kumar knew the
identities of two of them: the father of Jasbir Singh and a
village sarpanch (a village consult head). Kumar ran to a
higher official in the agency and told him that there were men
who had been killed in the havalaat. Kumar testified, “I was
very nervous, but he stayed poised . . . as though he knew
already.” The higher official then called Inspector Singh, and
the agency staff retrieved the bodies. When Kumar again
complained to Inspector Singh, he was told to “go away from
here.” Kumar left the office. Not satisfied with Inspector
Singh’s response, Kumar then informed a higher-ranking
official, Narrinder Pal, the Superintendent of Police. He told
Superintendent Pal, “Jasbir Singh was just killed like this, and
many other men have been killed in a similar way. And after
that, Jasbir Singh’s father was also killed there. . . . This is
against humanity to kill someone like that.” In response,
Superintendent Pal “started calling me names and asked me,
‘Do you wish to be killed like that, too?’ He said keep your
mouth shut and disappear from my sight.”
The day following his conversation with the
superintendent, Kumar was transferred from the agency,
having served nineteen days as head constable. His duty was
to supervise four officers who patrolled the residence of a
higher official. At times he was also assigned to patrol a bank
or a bazaar. His work was “fine” because “there is no brutal
beating that you see and you just do your work.”
6 KUMAR V. HOLDER
Kumar also testified that, after he left the intelligence
agency, a friend of his warned Kumar that Kumar’s safety
was in danger. The friend, now the bodyguard of an official,
asked Kumar what had taken place with Superintendent Pal.
Kumar told his friend, “I said to him I didn’t complain. I only
said to him that I informed him as to whatever was going on
was not correct.” The friend urged Kumar, “[I]f you see
something . . . use caution,” and stated that “his
[Superintendent Pal’s] men may, might kill you.”
Ten days after the conversation with Superintendent Pal,
in February 1993, Kumar told his supervisors that he was
going to spend his one day holiday in his own village in
Fardipore, where his brother and parents resided. However,
afraid of retaliation, he decided not to return to his own
village, and instead stayed with his in-laws in Sujanpore.
Several days later, his brother told him that four men with
guns and dressed in civilian clothes had come to the family
home. Kumar’s brother told them that Kumar was not there.
The men accused his brother of lying and said that Kumar
had told them that he would be there. At the hearing Kumar
was asked why, assuming these men worked for
Superintendent Narrinder Pal, they could not simply look for
Kumar at the police line, where “presumably they would have
known [where Kumar was] assigned.” Kumar explained that
these men were likely “police’s cat[s],” meaning that they
worked for “high officials” and “were policemen, but they
were not officially police.” Their work was not for the police
but “private.” Kumar explained, “It’s like this. When I was at
the police line then these civil people over there . . . cannot
touch you, cannot kill you.”
A month later, in March 1993, Kumar spent his one day
holiday by seeing his sister, who lives in Amritsar. Kumar’s
KUMAR V. HOLDER 7
brother later told him that, on the day of his holiday, the same
men with guns had again come to his home village looking
for Kumar. In April, Kumar spent his one day holiday visiting
the bazaar. He was dressed in civilian clothes. He spotted two
of Superintendent Pal’s men coming behind him, following
him. These men told Kumar to stop, adding that they had to
speak to him. Kumar testified, “And I thought if I were to
stand near them, possibly they would kill me or they would
harm me. And then I ran and [got] back [to] police line [in]
Tarn Tarn.”
Around the time of the incident in the bazaar, Kumar
testified, “I started thinking that it wasn’t okay for me to keep
on living there. After that, I spoke to my father. I told him
about all of these things. That those men who had come to
their home, I had no idea who they were. That . . . they would
kill me.” His father advised him to leave India and took
Kumar to Delhi. His father spoke to people affiliated with the
church, who helped Kumar obtain a visa. Kumar testified, “I
had come here [to the United States] to save my life and I
saved myself.”
At Kumar’s hearing, the government attorney asked
Kumar what he would have done had he not been sent back
to the police line. The attorney asked, “[Y]ou would have
remained at the [intelligence agency’s] . . . facility where you
were at, isn’t it true?” Kumar replied, “Had I not complained,
had I not spoken against my office . . . it might have been
possible I would have stayed. But since I did, I was
transferred back.”
During his time as a policeman, Kumar did not use his
rifle or baton. Kumar also did not arrest any person. In total
Kumar worked four years as a policeman, six months at the
8 KUMAR V. HOLDER
intelligence agency, nineteen days of which he served as head
constable.
Proceedings. On April 22, 2005, the Immigration Judge
(IJ) rendered an oral decision, finding Kumar to be credible
and describing him as a “truthful witness.” Kumar was
“plainly upset” by the mistreatment he witnessed.
Nonetheless, the IJ reasoned that Kumar’s service as a guard
was “analogous” to the actions of Fedorenko, a Nazi prison
guard found to be barred from entry due to his acts of
persecution in Fedorenko v. United States, 449 U.S. 490(1981). Kumar’s position “was integral to the security of the
[intelligence agency staff] and, therefore, to its functioning.”
Because the Immigration and Nationality Act (INA) forbids
the granting of asylum to those who “ordered, incited,
assisted, or otherwise participated in the persecution” of any
person, the IJ denied Kumar’s applications for asylum and
withholding of removal on the grounds that Kumar had
assisted in the persecution of others. 8 U.S.C.
§ 1158(b)(2)(A)(I). The IJ granted him deferral of removal
under the Convention Against Torture (CAT).
On May 13, 2005, Kumar timely appealed the IJ’s denial
of asylum and withholding of removal claims to the BIA.
On May 9, 2008, the BIA issued a final order of removal,
incorporating its prior decision dismissing Kumar’s appeal.
The BIA agreed with the IJ that Kumar failed to establish
eligibility for asylum and withholding of removal because he
had assisted in the persecution of others on account of
political opinion. The BIA affirmed the IJ’s finding that
Kumar’s “position as a sentry or guard, a constable and later
head constable . . . was analogous to that of the petitioner in
Fedorenko v. United States.” The BIA also agreed with the
KUMAR V. HOLDER 9
IJ’s finding that Kumar was eligible for deferral of removal
under the CAT, because he would more likely than not be
subjected to harm in India. The BIA found that Kumar had
credibly testified that he fled India after learning that a high-
ranking inspector at a penal institution had threatened him.
Jurisdiction. The BIA had jurisdiction over Kumar’s
appeal pursuant to 8 C.F.R. §§ 1003.1(b)(3) and 1240.15,
granting the BIA appellate jurisdiction over decisions made
by immigration judges in removal proceedings. The IJ had
authority to conduct Kumar’s removal proceedings pursuant
to 8 U.S.C. § 1229a and 8 C.F.R. § 1003.10.
The court’s jurisdiction is governed by Section 242 of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252.
Kumar timely filed his petition for review.
Standard of Review. Because the BIA expressed
agreement with the reasoning of the IJ, this court reviews
both the IJ and the BIA’s decisions. See Nuru v. Gonzales,
404 F.3d 1207, 1215 (9th Cir. 2005). This court reviews legal
questions de novo, and the agency’s factual findings are
reviewed for substantial evidence. See Zehatye v. Gonzales,
453 F.3d 1182, 1184–85 (9th Cir. 2006). Because the BIA did
not make an adverse credibility finding, this court must
accept Kumar’s testimony as true for purposes of review.
Navas v. INS, 217 F.3d 646, 652 n.3 (9th Cir. 2000); Halaim
v. INS, 358 F.3d 1128, 1131 (9th Cir. 2004).
ANALYSIS
Does the statute’s bar to entry into this country by a
persecutor exclude a police officer who tortured no prisoner,
interrogated no prisoner, struck no prisoner, and who himself
10 KUMAR V. HOLDER
risked his job and lost it by protesting the treatment of several
prisoners? We conclude that in determining whether Kumar’s
actions rose to the level of “personal involvement” triggering
the persecutor bar, the BIA misunderstood and misapplied
relevant precedent. We therefore grant Kumar’s petition for
review and remand to the BIA for reconsideration.
In Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir.
2006), we established the requirements for analyzing the
applicability of the persecutor bar under the INA. We held
that the law “requires a particularized evaluation of both
personal involvement and purposeful assistance in order to
ascertain culpability.” Id. at 927. We drew our analysis
heavily from Fedorenko. There, the Supreme Court suggested
that certain actions may not rise to a level sufficient to
establish purposeful assistance in persecution and thus may
not trigger the persecutor bar in the now-defunct Displaced
Persons Act of 1948, Pub. L. No. 80-774, 62 Stat. 1009(1948) (DPA). Fedorenko, 449 U.S. at 512 n.34. The DPA
authorized the admission into the United States of certain
European displaced persons for permanent residence after
World War II. Mindful that the DPA has a different structure
and purpose than the INA, we nonetheless are guided by
Miranda Alvarado’s interpretation of Fedorenko as
establishing a “continuum of conduct against which an
individual’s actions must be evaluated so as to determine
personal culpability.” Miranda Alvarado, 449 F.3d at 926.
See also Negusie v. Holder, 555 U.S. 511 (2009) (holding that
Fedorenko’s rule that voluntariness is irrelevant to culpability
KUMAR V. HOLDER 11
with respect to the DPA’s persecutor bar need not be applied
to the analogous INA persecutor bar).1
Regarding the first factor of Miranda Alvarado, personal
involvement in alleged persecution, we examine whether the
petitioner’s involvement was active or passive. See Miranda
Alvarado, 449 F.3d at 927–28. Whereas Miranda was
“undisputedly a regular part of interrogation teams,” “present
and active during the alleged persecution,” Kumar did not
take part in the interrogation, and was neither present nor
active during the alleged persecution. Id. at 928. Indeed,
Kumar arrived at the intelligence facility as a constable, the
lowest rung. Kumar did not arrest or physically hurt any
prisoners. His duties were not related to disciplining the
prisoners. The record does not indicate that Kumar prevented
prisoners from attempting to escape. The IJ and BIA failed to
consider whether an individual such as Kumar, who was not
actively involved in the persecutive acts taken at Tarn Tarn
and whose involvement with the alleged persecution was
highly attenuated, nonetheless may be subject to the
persecutor bar.
Second, to determine whether the petitioner purposefully
assisted in the alleged persecution, we examine whether the
petitioner’s acts were material to the persecutory end.
Miranda Alvarado teaches that “[w]hether [petitioner’s]
assistance was material is measured by examining the degree
1
Because we conclude that the BIA erred in analyzing whether Kumar’s
actions demonstrate his “personal involvement” in persecution that
occurred at Tarn Tarn, and because Kumar concedes that his work was
voluntary, we need not remand for reconsideration under Negusie, which
focused on whether the persecutor bar under the INA should be applied to
claims that the assistance in persecution was coerced or performed under
duress. See Weng v. Holder, 562 F.3d 510, 514–15 n.1 (2nd Cir. 2009).
12 KUMAR V. HOLDER
of relation his acts had to the persecution itself: How
instrumental to the persecutory end were those acts? Did the
acts further the persecution, or were they tangential to it?” Id.Here, the IJ lacked the benefit of Miranda Alvarado, and the
BIA misconstrued Miranda Alvarado’s integral participation
requirement. The BIA stated that Kumar’s work as a
constable “was integral to the security of the [intelligence
facility], and therefore, to its functioning.” Miranda Alvarado
makes clear that for the integral participation requirement to
be met, a prison employee’s work must be integral to the
persecution that occurred. See Miranda Alvarado, 449 F.3d
at 928. An employee’s work may be integral to a prison
facility but not to the persecution that occurs within it. For
instance, a cook or a plumber who works at a prison may be
integral to the functioning of the facility, but his duties are
hardly integral to the persecution that might occur within
the prison’s walls. Here, we remand to the BIA to consider
whether the work of a sentry on the perimeter of an
intelligence agency is integral not only to the functioning of
the facility but also to the persecution that occurred inside
of it.
Further, we note that, in analyzing whether Kumar’s
participation was integral to the alleged persecution, the IJ
and BIA erroneously concluded that Kumar’s role as a Tarn
Tarn constable was analogous to that of the petitioner in
Fedorenko. Obvious differences exist between Nazi guards at
Nazi concentration camps and members of a legitimate law
enforcement agency in India (the Punjabi police force),
stationed at a legitimate prison facility (Tarn Tarn). As the
Sixth Circuit has cautioned, analysis of the persecutor bar
“when applied to an alien who is accused of having ‘assisted
or participated in persecution’ in the context of working for
a legitimate arm of a recognized government differs
KUMAR V. HOLDER 13
materially from that analysis when applied to an alien who
served as a Nazi concentration camp guard.” Diaz-Zanatta v.
Holder, 558 F.3d 450, 452 (6th Cir. 2009). As a member of
a legitimate arm of a democratically elected government,
Kumar contrasts markedly with a guard at a Nazi
concentration camp.
Finally, the BIA misapplied Miranda Alvarado’s
requirement of evaluating extenuating circumstances,
including whether the alleged persecutor was acting in self-
defense, in order to determine whether the petitioner has
assisted or otherwise participated in persecution. Miranda
Alvarado, 449 F.3d at 925–27; see also Vukmirovic v.
Ashcroft, 362 F.3d 1247, 1252 (9th Cir. 2004). The BIA
stated that Kumar “did not leave his position until he felt
threatened as a result of complaints he had made.” The BIA
likely relied on the IJ’s statement that it was “of some
importance” that Kumar testified he would have continued to
guard the intelligence agency had he not been transferred. In
other words, Kumar would have stayed at the agency even if
he became convinced that he was powerless to stop the
mistreatment. This hypothetical should not function as a legal
argument. The law commands us to evaluate the particular
behavior that actually occurred. Whereas Miranda “did not
seek to resign for six years,” the very reason Kumar was
transferred from his position from the agency lay in his
repeated decisions to speak up: He took a risk in complaining
and was subjected to threats as a consequence. Miranda
Alvarado, 449 F.3d at 929.
Conclusion. The decisions of the IJ and BIA reflect a
misunderstanding and misapplication of relevant precedent.
We remand under INS v. Ventura, 537 U.S. 12 (2002), to
consider whether Kumar purposefully assisted in the alleged
14 KUMAR V. HOLDER
persecution. In doing so, the BIA should consider in
particular (a) whether the work of a sentry on the perimeter
of an intelligence facility is integral not only to the
functioning of the facility but also to the persecution that
occurred inside of it, and (b) the differences between the role
of a Nazi guard at a Nazi concentration camp and Kumar, an
individual working for a legitimate arm of a recognized
government at a legitimate prison facility.
PETITION GRANTED; REMANDED.