Vijay Kumar v. Eric H. Holder Jr.
2013 U.S. App. LEXIS 18057
| 9th Cir. | 2013Background
- Vijay Kumar, an Indian police constable, served ~4 years; 6 months at an intelligence facility where he guarded the facility perimeter and gate but did not arrest, interrogate, beat, or transport prisoners.
- Kumar witnessed and reported prisoner abuse and the deaths of detainees; he complained to superiors (Inspector Singh and Superintendent Pal) and was warned to stay silent and threatened.
- After complaining, Kumar was transferred off the intelligence facility; later, armed men allegedly associated with the superintendent sought him at his family home, and he ultimately fled India to the U.S. claiming fear for his life.
- An IJ found Kumar credible but held his sentry role was analogous to a Nazi camp guard (Fedorenko), concluding he ‘‘assisted in persecution’’ and denying asylum/withholding; the IJ granted CAT relief.
- The BIA affirmed, applying the persecutor bar; Kumar petitioned for review in the Ninth Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kumar is barred by INA persecutor exclusion for "assisting or participating in persecution" | Kumar: his role was passive and peripheral (sentry duties); he did not engage in interrogation, arrest, or abuse and he protested, risking his job | Gov: Kumar’s sentry role was integral to facility security and thus to its functioning and persecution, analogous to Fedorenko guard | Court: Remanded — BIA misapplied precedent; must assess personal involvement and whether sentry duties were integral to persecution |
| Whether Miranda Alvarado/Fedorenko framework was properly applied | Kumar: needs particularized inquiry on active vs passive involvement, materiality of assistance, and extenuating circumstances (e.g., protest, threats) | Gov: relied on analogy to Fedorenko to treat sentry role as per se integral | Court: BIA misunderstood Miranda Alvarado; must evaluate materiality/integrality and consider mitigating facts like complaints and threats |
| Whether differences between a Nazi camp guard and a police sentry at a legitimate government facility matter | Kumar: distinction is significant; serving a legitimate government’s police force differs from Nazi camp guards | Gov: functional similarity to a guard at a persecutory facility makes exclusion applicable | Court: Differences matter; BIA erred by failing to consider legitimacy/context when analogizing to Fedorenko; remand required |
| Whether BIA should consider extenuating circumstances and voluntariness (duress) | Kumar: his complaints and transfer show he did not willfully participate; voluntariness and threats relevant | Gov: argued his continued employment implies he would have remained passive | Court: BIA misapplied extenuating-circumstances analysis; must evaluate actual behavior and context rather than hypotheticals |
Key Cases Cited
- Fedorenko v. United States, 449 U.S. 490 (Supreme Court decision on Nazi camp guards and the persecutor bar under the DPA)
- Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006) (requires particularized inquiry into personal involvement and material assistance for persecutor bar)
- Negusie v. Holder, 555 U.S. 511 (Supreme Court decision limiting Fedorenko’s voluntariness rule applicability)
- Diaz-Zanatta v. Holder, 558 F.3d 450 (6th Cir. 2009) (caution about analogizing legitimate government police to Nazi guards)
- INS v. Ventura, 537 U.S. 12 (Supreme Court authority supporting remand procedure)