Rani v. Holder

FILED
NOT FOR PUBLICATION JUL 05 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
RADHIKA RANI, No. 07-72296
Petitioner, Agency No. A079-262-394
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
RADHIKA RANI, No. 08-70818
Petitioner, Agency No. A079-262-394
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 15, 2011
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PAEZ, BERZON, and BEA, Circuit Judges.
Radhiµa Rani petitions for review of a decision by the Board of Immigration
Appeals (BIA) dismissing her appeal from the Immigration Judge's (IJ) denial of
her application for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). Rani further petitions for review of the BIA's
denial of her motion to reopen her proceedings. We grant both petitions and
remand to the BIA.
1. Substantial evidence supports the BIA's determination that Rani has
not established a 'pattern and practice' of persecution against Indo-Fijians in Fiji.
The State Department Country Report on Fiji states that ethnic discrimination is a
'serious problem' and that Indo-Fijians are underrepresented in the Fijian
government. But 'discrimination on the basis of race . . . does not ordinarily
amount to 'persecution.'' Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995). The
documentary evidence also fails to establish that Indo-Fijians are a 'disfavored
group' because, while the evidence demonstrates widespread discrimination
against Indo-Fijians, it does not establish that a significant number of members of
the group have been persecuted. See Waµµary v. Holder, 558 F.3d 1049, 1064 (9th
Cir. 2009) (holding that a 'disfavored group' is one 'whose members are shown to
2
have been widely targeted for discrimination, a substantial number of whom are
shown to have been persecuted').
2. The BIA erred, however, in failing to address Rani's argument that
she herself had suffered past persecution, which would have entitled her to a
presumption of a well-founded fear of future persecution and shifted the burden of
proof to the government to rebut that presumption. See Ali v. Holder, 637 F.3d
1025, 1029 (9th Cir. 2011); 8 C.F.R. y 1208.13(b)(1). Rani's original notice of
appeal challenged the IJ's determination the she had not experienced past
persecution, and she raised the issue in her brief to the BIA. Specifically, she
argued that '[a]ll the evidence in the record indicates that she has experienced
horrendous persecution and will possibly suffer more of the same if she returns to
Fiji. . . . Thus, through both her past persecution and liµelihood of future
persecution in Fiji, Ms. Rani has established a well-founded fear of future
3
persecution.' Rani's past persecution claim was therefore properly exhausted
before the BIA, yet the agency failed to address it.1
Because the BIA failed to rule on the past persecution portion of Rani's
asylum claim, we must remand for the agency to address the issue in the first
instance. We must also remand Rani's withholding claim, as 'a showing of past
persecution entitles an alien to a presumption of eligibility for withholding of
removal.' Ali, 637 F.3d at 1029 n.2; see also 8 C.F.R. y 1208.16(b)(1). If the BIA
determines that Rani suffered past persecution, the agency must then consider
whether the government has rebutted the presumption of future fear by a
preponderance of the evidence. See Ali, 637 F.3d at 1029. In doing so, the agency
must conduct 'an 'individualized analysis' tailored to [Rani's] particular
1
Contrary to the dissent's assertion, Rani did raise her past persecution
claim in her opening brief to this court. She maintained that '[i]n the absence of an
express adverse credibility finding, the Agency must assume that the applicant's
factual contentions are true,' and went on to explain that
she testified that she was a victim of hate crimes that was caused by
the natives. She was attacµed at the bus stop by a Fijian man who
tried to get money from her. The Fijian man µicµed her and told her,
'you Indian, go, go bacµ to India, you people are taµing our country.'
She also said that '[s]he tried complaining to the local police, but no report was
taµen.' Rani also argued that once past persecution is established, a rebuttable
presumption of a well-founded fear of future persecution arises. Thus, the issue
was both exhausted and properly raised before us.
4
situation.' Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir. 2010); see also Ali,
637 F.3d at 1030-31.
3. Rani presented no evidence that she would be subjected to torture if
removed to Fiji. Thus, the BIA correctly denied Rani's CAT claim.
4. Whether the BIA abused its discretion in denying Rani's motion to
reopen depends in part on whether Rani suffered from past persecution. As this
court explained in Ali, a petitioner who has 'established past persecution . . .
enjoy[s] the presumption of a well-founded fear of persecution.' Ali, 637 F.3d at
1032. If that petitioner files a motion to reopen premised on changed country
conditions, the BIA must 'consider[] how the changed country conditions impact[]
that presumption.' Id.
Ali was also a case concerning persecution of Indo-Fijians in Fiji, and, liµe
Rani, Ali had filed a motion to reopen regarding the 2006 military coup in Fiji.
This court held that '[t]he new material, detailing the 2006 coup, could have made
it more difficult for the Government to rebut Ali's presumption of a well-founded
fear of future persecution. Certainly, there is a 'reasonable liµelihood' that the
Government could have been unable to do so.' Id. (quoting Garcia v. Holder, 621
F.3d 906, 912 (9th Cir. 2010)). The BIA abused its discretion in denying Ali's
5
motion to reopen because it failed to consider the motion in light of the
presumption of well-founded fear of persecution. Id.
In this case, we do not µnow if Rani is entitled to such a presumption, and
thus cannot determine whether the BIA abused its discretion in denying her motion
to reopen. We therefore remand to the agency to reconsider the motion in light of
its past persecution determination and the analysis set forth in Ali.
Petitions GRANTED in part and REMANDED.
6
FILED
Rani v. Holder, No. 07-72296 & 08-70818 JUL 05 2011
MOLLY C. DWYER, CLERK
BEA, Circuit Judge, concurring in part and dissenting in part: U.S . CO U RT OF AP PE A LS
I respectfully dissent from the majority's remand to the BIA.1
As a initial matter, Rani has waived the purported 'claim' on which the
majority remands. The majority concludes that the BIA erred 'in failing to address
Rani's argument that she herself had suffered past persecution, which would have
entitled her to a presumption of a well-founded fear of future persecution.' Maj. at
3. But Rani herself never argued before this court that the BIA erred when it failed
to address past persecution--not in her opening brief, not in her reply brief, and
not at oral argument. We review only issues which are þargued specifically and
distinctly in a partyùs opening brief.þ Greenwood v. FAA, 28 F.3d 971, 977 (9th
Cir. 2004). Rani did not raise the BIA's purported failure to address a past
persecution claim in her opening brief. Indeed, she failed to raise the issue to this
court at all. I cannot concur in the majority's decision to remand this case on the
basis of an argument which it invents for Rani, which the government never had an
opportunity to address.2
1
I concur in the majority's denial of Rani's CAT claim, and in its
determination that substantial evidence supports the BIA's determination that Rani
has not established a 'pattern and practice' of persecution against Indo-Fijians in
Fiji.
2
The majority constructs a claim for Rani based upon 1) the facts alleged in
her brief (although, notably, Rani never tied those facts to a claim of past
Moreover, I do not thinµ the BIA erred. Raniùs brief before the BIA
mentioned past persecution only in support of her contention that she had a well-
founded fear of future persecution were she to return to Fiji.3 As the majority
notes, the only mention of past persecution in Rani's brief to the BIA was in the
following passage: 'through both her past persecution and her liµelihood of future
persecution in Fiji, Ms. Rani has established a well-founded fear of future
persecution' (emphasis added). In response to this argument, the BIA held:
'respondent has not established a well-founded fear of future persecution.þ
Clearly, on its way to rejecting Rani's contention that she had a well-founded fear
of future persecution, the BIA also rejected the twin bases for that contention: 1)
that Rani had suffered past persecution, and 2) that Rani had established a
liµelihood of future persecution in Fiji.
True, the BIA might have published an opinion with an extensive discussion
persecution) and, 2) her formulaic recitation of the standard for establishing a well-
founded fear of future persecution. See Maj. Op. at 4 n.1. But not once in Rani's
opening brief did Rani 'specifically and distinctly' argue that she had actually
been subject to past persecution, much less that the BIA erred by failing to address
a past persecution claim. Compare Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.
2004) (this court reviews only issues raised 'specifically and distinctly' in a
party's opening brief).
3
As the majority correctly notes, a finding of past persecution would have
entitled Rani to a presumption of a well-founded fear of future persecution, and
shifted the burden of proof to the government to rebut that presumption. Maj. Op.
at 3.
of the various reasons Rani's past persecution claim failed. But why would itá
Rani's brief to the BIA contained neither analysis nor citation to legal authority in
support of her brief contention that she had experienced past persecution. Instead,
Rani raised a past persecution claim to the BIA only through a throwaway line in
her brief, unmoored from any discussion of law or facts. The BIA thus had no
reason further to discuss or analyze her claim.
In short, the majority--in its zeal to grant Rani's petition--looµs past the
issues which were briefed in this court, and conducts a de novo review of the
administrative record. The majority then seizes upon a single line in Rani's brief
to the BIA, faults the BIA for not adequately addressing that line, and remands to
the BIA so that it may do so. Of course, on remand, the BIA will almost certainly
find--for the second time--that Rani has not established past persecution, and
therefore is not entitled to a presumption of a well-founded fear of future
persecution. This determination will come as no surprise to anyone--least of all
Rani, who did not bother seriously to raise a past persecution claim before the BIA,
and abandoned such a claim entirely before this court. I cannot concur in the
majority's decision needlessly to protract these proceedings.
For the foregoing reasons, I respectfully dissent.