*1 KUMAR; Rina Wati Sharma Narendra
Kumar; Kumar, Shekhar Kaushik
Petitioners, GONZALES, Attorney
Alberto R. Respondent.
General,
No. 03-70200. Appeals, Court
United States
Ninth Circuit. July
Argued and Submitted 15, 2006.
Filed Feb. *2 regulations,
BIA’s its inclusion noth- ing more than harmless surplusage and prejudice. caused no We therefore as- sume the Kumars are credible and review so, directly. Doing IJ’s decision we hold that substantial supports evidence that petitioners decision did not past persecution or a establish likelihood persecution. future FACTS AND PROCEEDINGS BELOW Narendra Kumar is an ethnic Indian Fiji. wife, and a nátive and citizen of His Kumar, son, Rina and their Ku- Shekhar mar, are also natives and citizens of 10, 1994, On November the Kumars en- tered the United States visitor-for-plea- permitted sure visas stay that them to May the United until States 1995. The Kumars failed to leave the United States Courtney Robert L. Lewis and McDer- specified date. The INS issued mid, Lewis, Office of L. Law Robert Oak- Notice Appear charging the Kumars land, CA, Narendra, Rina, for Petitioners removability pursuant and Shekhar Kumar. 237(a)(1)(B) Immigration and Na- Couvillon, Donald A. Department of Jus- tionality having Act reason of over- tice Immigration Litigation, Office stayed their visas without authorization. DC, Washington, for Respondent Alberto IJ, At a hearing before an the Kumars Gonzales, R. Attorney General. allegations admitted the factual set forth in Appear
the Notice to and conceded remov- ability. asy- elected to seek Kumars lum and Mr. lead applica- filed Kumar’s tion; Rina and Shekhar Kumar’s claims application. are derivative of Kumar’s Mr. SILVERMAN, WARDLAW, Before: The Kumars testified about inci- three CLIFTON, Circuit Judges. in support asylum. dents of their claim for SILVERMAN, Judge: Circuit (1) 1987 Incident at the Home Kumars’ 1003.1(e)(4)(ii) 8 C.F.R. prescribes Mr. he ethnic testified language the exact that the BIA fledgling use who had active in the must Indian been affirmance”, when it issues a “streamlined Party around the time of a i.e., immigration affirms an judge’s coup deci military government take over the case, without opinion. sion In this Approximately in 1987. two weeks follow- employed prescribed language ing coup, but three soldiers uniform also added a footnote disavowing purportedly the IJ’s came Kumars’ house credibility finding. today incident, adverse looking guns. During We hold Mr. although the footnote violated punched the Kumar was the stomach and him Hindus and told him outside He took verbally abused. the face and around religion their practice not allowed to bruises from are that he still has testified convert to Chris- grabbed that he should of the soldiers incident. One addi- to India. The soldiers tianity go Kumar. The soldier back squeezed Mrs. *3 Fijian, in Mr. physically comment abuse tionally made a loud not arrest or did incident, Kumar under- Mr. Kumar Mr. Mrs. After this which neither Kumar. nor stood, soldiers temple. caused the other going but which stopped left, the Ku- the soldiers laugh. to After Ku- of Mrs. that some
mars discovered (3) 1994 Car Collision jewelry missing. mar’s Kumar was in- Mr. August In this inci- initially described Mr. Kumar He testified in a car collision. volved 10:00 occurring sometime between dent as intersection driving through an he was pressed during a.m. noon. When and army an truck four-way stop a with cross-examination, changed his Mr. Kumar hit at the intersection and stop failed asylum consistent with his to be his car. he confronted the back of When in incident occurred application —that they could and told them that the soldiers that he was evening. explained He him, re- killed one of soldiers have testimony. in his earlier mistaken Mr. Kumar’s life was sponded that day that the next Mr. Kumar testified Fiji in that he should living worth police. As a complaint he filed a Then the soldier kicked to India. return incident, police reporting the result of testi- his car. Mr. Kumar Mr. Kumar and custody Kumar into and locked took Mr. intentionally ran into soldiers fied that the custody, overnight. him in a cell While member of the car he was a his because Ku- policeman verbally threatened Mr. a cross-examination, Mr. Party. On Labor against hit head the wall. mar and his soldiers would Kumar was asked how the incident, Mr. Kumar Shortly after this known that he was the driver have moved to New Zealand where he remained they they responded hit. He car that years. two He obtained work about recognized his car from could have in New allowing legally him to work visa attended in 1987. rallies he Zealand, at a ware- employment and found report Kumar did not the incident Mr. the children house. Mrs. Kumar and Indo-Fijian police officer ad- because with Mrs. Kumar’s stayed behind only him it would cause him vised that he was family. Mr. testified incident, the Following this more trouble. family’s safety, but concerned about his to the United Kumars decided come in- they living would be safe with his felt escape the harassment and to States voluntarily In Mr. Kumar re- laws. life money” have a “better “make he felt that turned to because here.” feeling and he “was improved situation had lonely” in Zealand. he re- New When Kumar testified that he has three Mr. Zealand, longer he no residing turned from New sisters brothers and two Party. Indo-Fijians. had involvement with the He stated that They are all lease the land his brothers and sisters (2) Temple at Mr. Kumar’s 1991 Incident have Fijian landowners and live on from that the leases will not be re- that he is Hindu. been told Mr. Kumar testified addition, that his In he testified arrived at newed. Sometime two soldiers multiple was the victim praying. They elder brother temple where he was authority Mrs. Kumar testified that her The BIA’s to affirm burglaries. cases opinion in the without parents and one brother live United codified at 8 C.F.R. 1003.1(e)(4).1 particular, sister lives in Australia and States. One 1003.1(e)(4)(ii) states: one sister lives Canada. hearing, If the Board asylum
At the conclusion of the member determines that found decision should be affirmed without the IJ rendered her decision. She opinion, the Board shall issue an that Mr. Kumar was not credible because order that reads as follows: of numerous inconsistencies and contradic- “The Board af- firms, without opinion, tions between his written declaration and the result of the is, testimony presented oral at the hear- decision below. The decision below *4 therefore, agency as- the final determina- ing. The IJ further ruled that even 1003.1(e)(4).” credible, tion.- See 8 CFR An suming Mr. Kumar were he failed or- affirming opinion, der without un- past perse- to submit sufficient evidence of issued authority provision, der .of this cution or a well-founded fear of future shall not explanation if family reasoning. he and his returned further or include Mr, approves Such Fiji. Finally, to the IJ found that the result an .order below; reached in present any Kumar failed to evidence that the decision it does necessarily likely imply approval he is to be tortured if he returned to all decision, reasoning, the of that Fiji. granted applica- The IJ the Kumars’ but does signify the voluntary departure. any tion for Board’s that conclusion errors in the immigration decision of the BIA, to appealed The Kumars which judge or the Service were harmless following issued the decision: nonmaterial. affirms, opinion, The Board without strictly Here the BIA failed to follow the result of the decision below.tfn/i:i de- procedure outlined above. The is, therefore, order re- agen- cision below the final prescribed in cites text set forth cy determination. See 8 C.F.R. 1003.1(e)(4)(ii), 3.1(e)(4). but aiso includes a foot- disavowing note the IJ’s adverse credibili- summarily The Board does not affirm [fn/1] ty finding. The inclusion of that footnote Immigration Judge's credibility adverse contrary regulation. However, determination. this does not affect Immigration our decision to affirm the agency regu The violation of an Judge's denying ultimate decision relief. necessarily depor lation does not render a timely Kumars for review. tation unlawful. See United States v. Cal deron-Medina, 529, 591 F.2d ANALYSIS Cir.1979). Rather, petitioner must dem Summary A. BIA’s Affirmance that prejudiced onstrate the violation those challenge The Kumars protected regulation. the BIA’s sum- interests Id. mary applied affirmance in While we are dubious as to whether the Specifically, they this case. particular regulation any contend that at issue creates regulations protectible violated its own right, when we need not resolve carving added a footnote credi- issue here. the Kumars’ As conceded bility argument, decision out of its review. counsel at oral the Kumars did regulations 1. The now at 8 C.F.R. Part 1003 (2002). (2003) formerly were at 8 C.F.R. Part 3 that the supports the IJ’s conclusion dence preju were
not and cannot show
past persecu
to
Kumars failed
establish
or that the violation
by the footnote
diced
the five statutori
on account of
tion
outcome of
regulation affected the
v. Elias-
grounds. See INS
ly-specified
proceedings. See Hernandez-Luis
812,
Zacarias,
112 S.Ct.
502 U.S.
(9th Cir.1989).
(1992).
525 petition also fails to es- as we Mr. Kumar’s would have had the BIA opinion. affirmed without perse- a well-founded fear of future The BIA’s tablish error INS, failing comply Meza-Manay regula- with its own cution. See 139 (9th Cir.1998) tions is not harmless preju- and did cause (stating F.3d that to egregious prejudice dice. The most is that per- a well-founded fear of future establish BIA disregarded when the secution, regulations, its the alien must demonstrate both choosing dispose instead -to of this objectively subjectively reasonable and through summary its proce- affirmance persecution). genuine fear of dures, Kumar was denied the .full review at Because the Kumars have not es agency level to which he is entitled. eligibility asylum, they tablished for have This error should be remedied a re- higher proving not met the burden of that mand to the BIA for a determination withholding are entitled to of remov whether, taking Kumar’s testimony as al. Fisher v. See 961 true, the persecu- Kumars established past (en banc) Cir.1996) (holding that an Instead, tion. continues applicant who has not satisfied the lesser misguided down the BIA’s path by again proof required standard of to establish eli denying Kumar the full review to which he gibility asylum necessarily for fails sat is entitled. isfy stringent required the more standard majority disregards governing case eligibility withholding to establish law that dictates the we must removal). follow when reviewing a BIA decision af firming the IJ without opinion. Where the
CONCLUSION opinion, affirms the IJ without *6 panel is to review the IJ decision as the petition for The Kumars’ review is de- Gonzales, agency Singh final decision. v. stay pending nied. The of removal review (9th 1117, 1121 Cir.2005); 412 F.3d n. 6 see expire upon (cid:127)will issuance of the mandate Ashcroft, also Falcon v. Carriche 350 F.3d Ashcroft, this case. Desta v. 365 See F.3d (9th Cir.2003). 845, majority pur 849 The (9th Cir.2004). 741, 750 ports to undertake this review. itWhat PETITION DENIED. does, however, actually is the review IJ’s rejection asylum ultimate of the Kumars’ WARDLAW, Judge, Dissenting: Circuit rejecting claim while the IJ’s adverse cred I respectfully precedent ibility finding dissent. Our unprecedented process —an precludes majority the from BIA treating governing this flouts the rules by group every Fijians society regards attack committed a of ethnic sort of treatment our as INS, 1425, Ghaly offensive.” (9th v. 58 F.3d 1431 military, by police, and the detention the 1995) (citation omitted) (internal quo- Cir.
physical
in.police custody,
abuse while
omitted).
tation marks
"Discrimination on
questioning by
police regarding
coercive
the
morally
religion,
repre-
basis of race
the
as
political affiliations were insufficient to estab-
be,
may
ordinarily
hensive as it
not
does
persecution);
past
Singh
lish
v.
134 F.3d
persecution
meaning
amount to
within the
of
962,
(9th Cir.1998) (holding
that an
Act.” Id.
IJ’s
To obtain reversal of an
tension,
Indo-Fijian's claims of ethnic
includ-
decision, petitioner
a
must show that the evi-
ing
stoning
by
Fijians,
her
house
ethnic
reversal,
only supports
compels
dence not
but
burglary
property, govern-
of her home and
Elias-Zacarias,
it.
streamlining. 1003.1(e)(4)(i). Al opinion.” BIA 8 C.F.R. anomaly that the cre- regulatory BIA affirmed the result though BIA indeed both the IJ and ated is to review decision, refusing to its footnote credibility of the IJ’s accepting the BIA’s opinions, credibility affirm the determination (presumably supported as determination evidence) Board member re clear that the and then review- makes by substantial that the IJ’s viewing lens. the case determined opinion through ing the IJ’s credibility finding was adverse erroneous majority pro further muddles the non-material,” as in fact “harmless or credibility required when an adverse cess credibility If required. the adverse rejected. v. Ventu finding is Under INS or nonmaterial truly was harmless ra, 154 L.Ed.2d 537 U.S. 123 S.Ct. error, unnecessary to it have been would (2002), rejects the IJ’s panel 272 if the with it. disagreement note ma credibility finding, which the adverse here, kind of petition Nor did this raise the jority proper does course is legal ques- proceed further “not so substantial” factual and remand to the for disposi- petitioner’s testimony appropriate tions for review ings, accepting the See, by single a member of the BIA. Rath- e.g., Ding Ashcroft, v. 387 tion as true. (9th Cir.2004); er, by petition presents “a decision Singh this ... in con- Ashcroft, immigration judge Cir. that is not 2004). Instead, formity applicable the law or with usurps appropriate it by “reviewing” precedents,” of factfinder the IJ which makes role decision, taking panel Kumar’s for review a three-member 1003.1(e)(6)(iii). true, in affirming the BIA’s decision Board. Id. Had been thus remanding. given greater consideration of a three- stead of panel, might member the BIA have actual- setting majority’s Even aside the failure ly caught the misehar- read the record appellate re- to follow the testimony by the acterization of Kumar’s cases, the BIA’s deci- view streamlined within the so-called alterna- IJ contained sion to streamline Kumar’s ruling. Relegating tive this case to review place prejudicial error. Affir- first member, single Board without the *7 opinion process mance without under —the opportunity explain the decision an member, a than single which Board rather right to the full opinion, denied panel, a reviews an IJ deci- three-member hearing required by and fair the Fifth sion, and issues a standard three-sentence Amendment Due Process Clause. (the language of which mandat- opinion statute), by by than caused the BIA is ex prejudice ed rather one tailored Kumar’s, if in a as appropriate petition three re- acerbated such —is quirements are met. The member to where the law and the facts are not clear. (1) case, assigned very legally whom the case is must affirm This is a close both and (2) decision; factually. varying the result of the IJ’s deter- have articulated le gal degree mine that errors the IJ’s decision standards on the of individual (3) nonmaterial”; persecution petitioner were “harmless or and ized a must show to (a) appeal Compare determine that the issues on are merit Avetova-Elisseva relief. 1196(9th Cir.2000) INS, 1192, by precedent require controlled and do not v. 213 F.3d showing a a application precedent (finding of novel fact sustainable “[f]or (b) situation, legal past persecution, ‘[petitioner the factual and issues of a must appeal are “not so substantial that the establish that the mistreatment she suf-
527 Fijians, target- fifteen times ethnic who substantially grievous more ... was fered man degree general Indo-Fijian, than the in kind or ed her because she was were compet ... hostility between ifestation of supported by govern- evidence ”) (second religious groups’ ing ethnic unwilling ment was unable or to control Singh v. original) (quoting alteration crime). such (9th 962, Cir.1998)), INS, F.3d 967 134 hand, given On the other the deference 1206, Ashcroft, v. 367 F.3d with Knezevic decision, have at afforded the we Cir.2004) (9th that, in con (holding 1211 strictly interpreted times what “necessari- a well- proof required to show trast ly persecution,” ques- constitute^] “proof persecution, fear of future founded Elias-Zacarias, tion is defined INS v. is not- re particularized persecution of 478, 479, 812, 112 117 502 U.S. S.Ct. quired past persecution”).1 to establish (1992). See, e.g., L.Ed.2d 38 Prasad v. inci- cumulative effect of several INS, (9th Cir.1995) 47 F.3d if may persecution, constitute even dents that, Indo-Fijian (holding in the case of an rise to the single no incident would itself party member of the who was INS, v. we persecution. level of Chand gunpoint, jailed, forced from a vehicle at stated, considering asylum an “When hit, kicked, coercively questioned claim, cumulatively the harm we consider affiliations, a political threatened about applicant An applicant an has- suffered. persecution found factfinder could have of the cu- may suffer because persecution so); compelled to do see also but was not incidents, no one mulative effect of several (9th INS, Lata v. 204 F.3d 1245 persecution.” of which rises to the level of Cir.2000) (9th Cir.2000) assaults, (finding (finding burglarizing of 222 F.3d 1074 Indo-Fijian physi- home, persecution where and other vandalism petitioner’s soldiers, Fijian cally abused robbed Fijians by ethnic constituted “isolated times, assis- multiple police received no a compel criminal and did not ineident[s]” tance, and endured other crimes such as Singh, 134 F.3d at finding persecution); Narayan Ashcroft, v. burglary); see also Indo-Fijian’s 968-69(holding gen- that an (9th Cir.2004) (holding 1068 tension, burglariz- eralized claims of ethnic military coup, the violence due to the 1987 home, governmental out- ing petitioner’s treatment, repeated bur- denial of medical gatherings, and lawing religious of Hindu home, petitioner’s denial of glaries compel police refusal of assistance did not assistance, vio- physical and other police finding persecution). a compelled lence judg- standards for precise Because the Indo-Fijian Prasad against petitioner); varied, the IJ’s credi- ing persecution have Cir.1996) was all the more criti- bility determination Indo-Fijian (finding persecution where *8 it demonstrates that cal—and the record Party jailed member of the Labour was of the facts must have tainted the IJ’s view beaten, days, and sub- multiple twice for holding, in the “alternative” as set forth jected degrading to and treat- sadistic behavior, there human for understandable ment); Surita outright dis- (9th Cir.1996) other than explanation is no (finding persecution where mischarae- IJ’s deliberate Indo-Fijian’s being sembling ten to the claims of robbed ,the (i.e., group extent and appli- membership in the Mgoian "if the v. INS also that *9 remanded, IJ misconstrued if frequent the Kumars’ less this case were all that States, explaina- attendance the United would do is delete the footnote perhaps ble because the Indian refusing credibility or Hindu to affirm the adverse summary affir- and issue another just follow its might It decide to mance. give Kumar’s regulation and
own deserves, given the IJ’s
the full review considering the Especially
errors. Attor-
ney recent statement General’s “can immigration judges of some
conduct or even intemperate be described as
aptly
abusive,” and his admonition members BIA that each case “be re- must and that each alien be proficiently
viewed courtesy respect,”
treated with Memo- Attorney Alberto
randum from General of Im- of the Board
Gonzales Members (Jan. 9, 2006), I Appeals am
migration
inclined to believe that a remand would than the
produce meaningful more review not, if And even it did expects. discharge duty BIA to its
failure of the not re- proficiently
review each case does duty proce-
lieve us of our to follow correct precedent.
dure and our own majori-
Because neither the BIA nor the and both
ty followed correct
thereby effectively deprived Kumar of the entitled, I
process to which he was dissent. Petitioner, MORALES, Angelo
Michael Warden, ORNOSKI, Acting W.
Steven Prison at California State Quentin, Respondent.
San
No. 06-70884. Appeals, Court of
United States
Ninth Circuit.
Feb. notes by group) severity the group, of suffered of a 'disfavored' but cant is member (2) individual risk level.” 184 group subject systematic persecu- and the alien's the is not to 1999). tion, (1) Cir. level of 1035 n. will look to the risk [we] here, testimony. community is as evidence terization of Kumar’s For ex- less active extrapolates by from Kumar’s not affected the ample, the IJ that the Kumars were temple. to the factual that Ku- return incident at the appro- mar be “safe and believed would made in These and other errors the IJ fact, him In Ku- priate” for to return. allowing its of Kumar to infect disbelief testimony, mar’s which now must be her characterization of the Kumars’ testi- truthful, deemed was that he returned be- mony grave consequences the demonstrate cause wife she said the situ- “[his] called[:] majority’s flowing from the decision to that improving ation was so—and decided holding that on the merits pretend the IJ’s didn’t have relatives there [he] so[he] unaffected its erroneous adverse was feeling lonely depressed was and and [he] credibility finding. When the IJ made her accepts to come back.” as a had The IJ ruling persecution, help she could not worshiping fact that while Kumar was at perspective but do so from a of skepticism temple, dragged he was out two sol- majority accepts and disbelief. The the (1) him diers who told he could not IJ’s misstatement of the facts and her (2) practice religion get his and to unsupported though inferences even Fiji. plainly persecution, out of This is but they wrong. record shows are Given the the IJ concludes that because Kumar has complexities persecution, of our law on worshiped at home since the time of that importance particular facts to a goes temple only incident and now to a few persecution, decision on the majority’s de- year, religious persecution times a he accept cision to the IJ’s version of the facts suffered has somehow vanished. The IJ especially damaging. incorrectly that the finds Kumars believe are, course, not in posi- the best “comfortable, worshiping at home is ac- weigh testimony tion to now presented, fact, ceptable, and routine to them.” as it is our responsibility to make merely accept- testified that it was petitioner’s factual determinations about religion practice able the Hindu to at allegations in the first instance. Where home. He never testified that worshiping the makes an IJ erroneous adverse credi- at acceptable home was an to alternative determination, bility the IJ should be him; rather, he said his him stopped wife claim, charged reviewing Kumar’s going from to temple. The obvious infer- true, taking testimony his as free ence from this is that Kumar credibility finding the taint of the adverse go temple, wanted to but his wife felt it the record demonstrates influenced dangerous practice religion his ruling. IJ’s alternative Because we openly Fiji. That the Kumars continue cannot treat this case as we would had the home, moreover, practice at cannot be simply opinion, affirmed without mitigate impact taken to of the reli- place because we should not ourselves in gious persecution they did suffer in inquire role factfinder and into the Indeed, Rina Kumar testified the rea- petition, merits of the Kumars’ rather than temple son that had attended more agency, to the majority’s remand reso- Fiji, incident, prior often to the was that of INS v. contrary lution is holding activity there was more as a result of Ventura. Thus, large community Indian there. I support holding, quite for the “alternative” am not as certain as the