Opinion
17-70925
01-10-2023
HARMINDER PAL KAUR, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted November 14, 2022 San Francisco, California
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A073-413-899
Before: S.R. THOMAS and BENNETT, Circuit Judges, and MOSKOWITZ, District Judge.
The panel unanimously concludes that this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
MEMORANDUM
Petitioner Harminder Kaur, a native and citizen of India, petitions for review of the Board of Immigration Appeals' ("BIA") denial of her second motion to reopen her claims for asylum, withholding of removal, and Convention Against Torture ("CAT") relief. We have jurisdiction to review under 8 U.S.C. § 1252(a)(1), and we grant the petition and reverse and remand in light of Kaur v. Garland, 2 F.4th 823 (9th Cir. 2021). Because the parties are familiar with the factual and procedural history, we need not recount it here.
We review the denial of a motion to reopen for abuse of discretion. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). Beyond 90 days, an alien seeking to reopen must show material changed country circumstances and a prima facie basis for the relief sought. Id. Petitioner argues that her motion to reopen should have been granted based on changed circumstances, that is, a death threat she received from her brother-in-law and increased violence against women in India. Petitioner alleged that her brother-in-law assaulted her husband while he was visiting India, and threatened to kill her if she returned, referring to her as a "whore" and the "root of all [their] problems."
In Kaur, we held that the petitioner "present[ed] material changed country circumstances" based primarily on death threats she received from her in-laws and the increase in violence against women in India. See 2 F.4th at 830-33. Petitioner's claim is similar. She received a death threat from her brother-in-law, and Kaur supports her argument that violence against women has increased in India.
The BIA decided Petitioner's motion without the guidance we provided in Kaur. Here, Petitioner has shown materially changed country circumstances and a nexus to a protected group, sufficient to establish a prima facie case for asylum and withholding. "To establish a claim for asylum, [petitioner] need only show that the protected ground is 'one central reason' for the persecution." Id. As in Kaur, since the Petitioner satisfies the stricter "one central reason" asylum nexus standard, she necessarily satisfies the lesser, "a reason," standard for withholding of removal as well. See Kaur, 2 F.4th at 833 n. 7. Petitioner's arranged marriage, and her status as a dowry bride and daughter-in-law in a country with increased violence against both groups, is a central reason for the death threat she received. Thus, the BIA should consider Petitioner's asylum and withholding claims anew.
Our prior decision affirming the denial of Petitioner's first motion to reopen, Kaur v. Lynch, 633 Fed.Appx. 901 (9th Cir. 2015), is not controlling here. There we held that Petitioner's new evidence only "point[ed] to generalized conditions" that were "not material to her claim." Id. at 903. Here, Petitioner relies on a death threat specific to her, which is a significant factor under our recent decision in Kaur. See 2 F.4th at 830-33. Further, Kaur provides much support for Petitioner's argument that violence against women in India has increased.
The BIA did not err in summarily denying Petitioner's CAT claim without explanation. The BIA's decision "carries the presumption that the Board properly and thoroughly considered all issues, arguments, and claims raised or presented by the parties on appeal or in a motion that were deemed appropriate to the disposition of the appeal or motion, whether or not specifically mentioned in the decision." 8 C.F.R. § 1003.1(e)(9). Accordingly, the BIA's summary denial of "related forms of relief," including Petitioner's CAT claim, was not improper. However, the standard for deciding whether Petitioner had established a prima facie case for protection under CAT requires only that Petitioner show a "reasonable likelihood that the statutory requirements for relief have been satisfied" to reopen a case. See Ordonez v. I.N.S, 345 F.3d 778, 785 (9th Cir. 2003) (citation omitted). As we held in Kaur, the new evidence discussed above merits also reopening Petitioner's CAT claim. 2 F.4th at 836-837. Thus, the BIA should consider Petitioner's motion for CAT relief in light of Kaur as well.
We grant the petition, reverse the denial of the motion to reopen and remand for further proceedings on Petitioner's claims for relief.
PETITION GRANTED. REVERSED AND REMANDED
BENNETT, Circuit Judge, dissenting:
I respectfully dissent because the Board of Immigration Appeals ("BIA") did not abuse its discretion in denying Petitioner's motion to reopen. "The BIA abuses its discretion when it acts arbitrarily, irrationally, or contrary to the law." Martinez v. Barr, 941 F.3d 907, 921 (9th Cir. 2019). In applying that standard, "[w]e review legal questions de novo and factual findings for substantial evidence." Kaur v. Garland, 2 F.4th 823, 829 (9th Cir. 2021). And Kaur notwithstanding, substantial evidence supports the BIA's decision that Petitioner has not presented changed country conditions sufficient to require that the BIA exercise its discretion to reopen her immigration proceedings.
The substantial evidence standard is highly deferential. We must uphold the BIA's conclusions of fact "unless 'any reasonable adjudicator' would be compelled to conclude to the contrary." Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir. 2010) (quoting 8 U.S.C. § 1252(b)(4)(B)).
In Kaur, we corrected the BIA's legal error in concluding that involuntary changes in a Petitioner's personal circumstances could never support a finding of changed country conditions for purposes of a motion to reopen. Kaur, 2 F.4th at 830. The panel held that "[i]n combination, Kaur's husband's death in India, her resulting new status as a widow, her in-laws' threats, and the increased violence in India against women generally and widows in particular present material changed country circumstances." Id. at 833.
Here, the BIA did not commit the same legal error. Rather than rejecting Petitioner's evidence about involuntary changes in her personal circumstances, the BIA assessed the facts in this case and concluded that: "[t]he evidence submitted by [Petitioner] is insufficient to show changes in conditions or circumstances in India material to [her] claims for asylum and related forms of relief." The BIA specifically addressed Petitioner's evidence of death threats and disparaging remarks from her brother-in-law as well as generalized evidence she submitted about violence against women in India, including evidence related to dowry-based violence. The BIA applied the legal standard clarified by Kaur but reached a different result after weighing the facts of this case.
Substantial evidence supports the BIA's factual finding that Petitioner's evidence is insufficient to constitute "changed country conditions" for purposes of reopening her immigration proceedings. Unlike in Kaur, Petitioner here received indirect death threats from her brother-in-law in the context of a larger family dispute about inheritance. C.f. id. at 828-29 (noting that Kaur received death threats from her in-laws directly related to her status as a widow). Although Petitioner asserted for the first time in her supplemental brief that the threat from her brother-in-law was tied to the perceived inadequacy of her dowry payment, there is no evidence in the record corroborating that view. Thus, the petitioner in Kaur demonstrated more severe threats and a stronger nexus between the threats and her status as a widow. Here, Petitioner submitted generalized evidence about dowry-based violence in India but has not established a nexus between that evidence and the threats she received.
Kaur and this case are simply not materially identical, and to treat them as such is contrary to the basic guiding principle that we must judge each case on its facts, according to the law. See, e.g., Martinez, 941 F.3d at 922 ("Of course, each case turns on its own facts and circumstances."). Kaur held that specific death threats relating to changed personal circumstances could support a finding of changed country conditions, not that they must. 2 F.4th at 830-34. Taking Kaur fully into account, we are required to deny the petition in light of our highly deferential standards for reviewing a denial of a motion to reopen. Thus, I respectfully dissent.
The Honorable Barry Ted Moskowitz, United States District Judge for the Southern District of California, sitting by designation.