Kaur v. Holder

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 08 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RAJINDER KAUR, No. 07-72474
Petitioner, Agency No. A76-844-696
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 11, 2011
San Francisco, California
Before: HUG and PAEZ, Circuit Judges, and WATSON,** District Judge.
Rajinder Kaur (“Kaur”), a native and citizen of India, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an
immigration judge’s (“IJ”) decision denying her application for asylum and
withholding of removal. We have jurisdiction under 8 U.S.C. § 1252, and review
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Michael H. Watson, United States District Judge for
the Southern District of Ohio, sitting by designation.
the agency’s factual findings for substantial evidence and its legal conclusions de
novo. Viridiana v. Holder, 630 F.3d 942, 945 (9th Cir. 2011). We grant the
petition and remand.
We previously rejected the IJ’s adverse credibility finding and concluded
that Kaur demonstrated she suffered past persecution when she was detained and
raped by officers of the Punjab police. Kaur v. Gonzales, 128 F. App’x 567, 571
(9th Cir. 2005). We remanded the matter to the agency to determine whether
evidence of changed country conditions rebutted the presumption of a well-
founded fear of future persecution and the clear probability that Kaur’s life or
freedom would be in danger if she returned to India. Id. On remand, the IJ
determined that the government met its burden and rebutted the presumption.
The IJ’s decision rests on three erroneous findings. First, the IJ misapplied
the law when she found that Kaur’s well-founded fear of future persecution was
undercut by the continued presence of Kaur’s husband in India. That evidence
does not rebut the presumption because Kaur’s husband has remained in hiding
since he and Kaur were persecuted by the Punjab police. See Toure v. Attorney
Gen., 443 F.3d 310, 319 (3d Cir. 2006) (holding that where similarly situated
family members are in hiding, “a lack of continued persecution merely reflects the
family members’ ability to avoid detection, not the Government’s desire, or lack
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thereof, to further persecute them”). Second, relying on country reports, the IJ
improperly concluded that the Punjab police would not pursue and persecute Kaur
because she was not a high-profile militant. Kaur and her husband were persecuted
because Kaur’s husband, who worked for the Punjab police, refused to participate
in human rights abuses and deserted his position. See Barraza Rivera v. INS, 913
F.2d 1443, 1451 (9th Cir. 1990) (holding that punishment for “refusing to comply
with military orders . . . because they violate standards of human decency” can
itself amount to persecution). The country reports do not address whether, in those
specific circumstances, the Punjab police would continue to target Kaur for
persecution. Third, the IJ improperly considered the passage of time since Kaur
was persecuted as an additional factor in her decision because the length of time
was largely due to the instant litigation. Salazar-Paucar v. INS, 281 F.3d 1069,
1077 (9th Cir. 2002).
In sum, the IJ’s decision is based on erroneous conclusions of law and is not
supported by substantial evidence. The government failed to rebut the
presumption of a reasonable fear of future persecution and the clear probability that
Kaur’s life or freedom would be threatened if she returned to India. See 8 C.F.R.
§§ 208.13(b)(1), 208.16(b)(1)(i). Accordingly, we grant the petition and remand
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so the Attorney General can exercise his discretion regarding asylum and grant
Kaur withholding of removal.
PETITION FOR REVIEW GRANTED; REMANDED.
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