Ravinder Kaur v. Merrick Garland ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAVINDER KAUR, No. 18-72786
Petitioner,
Agency No.
v. A079-606-563
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 16, 2020
San Francisco, California
Filed June 21, 2021
Before: Mary M. Schroeder and Marsha S. Berzon, Circuit
Judges, and Salvador Mendoza, Jr., * District Judge.
Opinion by Judge Mendoza
*
The Honorable Salvador Mendoza, Jr., United States District Judge
for the Eastern District of Washington, sitting by designation.
2 KAUR V. GARLAND
SUMMARY **
Immigration
Granting Ravinder Kaur’s petition for review of a
decision of the Board of Immigration Appeals, and
remanding, the panel held that the Board erred in concluding
that Kaur failed to establish material changed circumstances
to warrant an exception to the time limitation on her motion
to reopen, and in concluding that she failed to establish
prima facie eligibility for asylum, withholding of removal,
or protection under the Convention Against Torture.
Kaur sought to reopen her removal proceedings based on
a combination of changed personal circumstances – the
death of her abusive husband and his family’s threats that
they would kill her if she returned to India because she was
responsible for his death, and changed country conditions –
including worsening conditions in India for women and
widows.
The panel held that the Board mischaracterized the
record and erred in concluding that Kaur presented evidence
of only changed personal circumstances in support of
reopening. The panel explained that while a self-induced
change in personal circumstances does not qualify for the
changed circumstances exception, that principle cannot
apply rigidly when changed circumstances in the country of
origin, while personal to the petitioner, are entirely outside
her control, as was the case here. The panel further
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
KAUR V. GARLAND 3
explained that even where any change in personal
circumstances is voluntary and did not originate in the
country of nationality, the changed circumstances exception
applies where changes in personal circumstances are made
relevant due to changes in country conditions. The panel
wrote that Kaur’s husband’s death, and his family’s death
threats, were made relevant by increased violence in India
against women, and in particular against widows. The panel
further wrote that, contrary to the Board’s determination that
Kaur provided evidence of only generalized conditions,
Kaur presented evidence demonstrating that the prevalence
and severity of human rights violations against women and
widows had materially worsened in many respects.
The panel held that the Board also erred in concluding
that Kaur failed to establish prima facie eligibility for asylum
and withholding of removal relief. First, the panel
concluded that the Board erred in determining that Kaur
failed to establish that a protected ground, including her
membership in a family social group, would be one central
reason, or a reason, for the harm she fears. The panel wrote
that a person may share an identity with a persecutor, and if
a member of a particular social group is persecuted by other
members of that same group because those members
perceive the applicant as being “insufficiently loyal or
authentic” to that group, she has been persecuted on account
of a protected ground. Second, the panel concluded that the
Board erred by requiring Kaur to show that her similarly
situated family members had been mistreated. The panel
explained that the safety of similarly situated members of the
family who remained in the country of origin may be
pertinent to a claim of future persecution, but does not itself
disprove it, and in this case, the Board relied on the safety of
Kaur’s daughter, who was not similarly situated. Third, the
4 KAUR V. GARLAND
panel concluded that the cultural context and Kaur’s
evidence established more than a mere personal vendetta.
The panel held that the Board erred in concluding that
Kaur failed to establish prima facie eligibility for CAT
protection. First, the panel held that the Board erred in
applying a “more likely than not” standard, rather than
requiring Kaur to show a “reasonable likelihood” of meeting
the statutory requirements for CAT protection. Moreover,
the panel concluded that the Board abused its discretion in
determining that Kaur did not meet the government consent
or acquiescence requirement. The panel pointed out that
Kaur presented evidence that her husband’s family is
wealthy and has the means of carrying out their threats, that
India suffers from widespread corruption, and that officials
respond ineffectively to crimes, especially those against
women. Based on that evidence, the panel concluded that
the Board did not have substantial evidence to dismiss
Kaur’s fears as speculation.
COUNSEL
Robert B. Jobe (argued) and Morgan Russell, Law Office of
Robert B. Jobe, San Francisco, California, for Petitioner.
Brooke M. Maurer (argued), Trial Attorney; Carl McIntyre,
Assistant Director; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
KAUR V. GARLAND 5
OPINION
MENDOZA, District Judge:
This asylum case is about changed country
circumstances, including changes in personal circumstances,
which are entirely outside the applicant’s control. Ravinder
Kaur, an Indian national, appeals the BIA’s decision denying
her motion to reopen removal proceedings. Kaur argues that
the BIA erred in concluding that she has failed to show
materially changed conditions in India, her country of origin.
She also argues that the BIA erred in concluding she failed
to establish a prima facie case of asylum and withholding of
removal or protection under the Convention Against
Torture.
We agree with Kaur on several critical points. The BIA
erred in determining that she failed to show material changed
conditions in India. Kaur’s personal circumstances in India
changed in a way entirely outside her control and, relatedly,
violence against women has materially increased in India.
These situations together constitute changed country
circumstances. The BIA also erred in its analysis of whether
Kaur established a prima facie case for asylum, withholding
of removal, and protection under the Convention Against
Torture (CAT). We thus remand the case to the BIA for
further proceedings on Kaur’s motion to reopen.
BACKGROUND
Kaur’s parents arranged her marriage to Balwinder
Singh in 1993. Singh turned out to be an alcoholic and
abusive. After the birth of their first child, Kaur moved to the
Philippines with Singh, his father, and his stepmother. There,
Singh’s abuse worsened. He regularly raped Kaur, often
overpowering her when he drank. Their first three children
6 KAUR V. GARLAND
were girls, which angered Singh, who wanted a boy. The
abuse increased still further. Singh hit Kaur and tried to force
her to abort her third pregnancy.
In May 2001, Kaur and one of her daughters entered the
United States on visitor visas. Later that summer, Kaur gave
birth to her fourth child, a son. Singh and another of their
daughters arrived in the United States later in 2001.
In the United States, Singh continued to physically and
verbally abuse Kaur and the children. His drinking
worsened. Neighbors called the police several times, but
Singh forced Kaur to lie and say that everything was fine. In
2004, Kaur finally called the police herself, and the police
arrested Singh. His parents admonished her that “all Indian
men do that,” and “it didn’t matter.” AR 85. They said,
“Indian people don’t disclose private matters to other
people.” Id. At their insistence, Kaur eventually went to the
police and asked that they drop the charges.
The United States deported Singh in 2007, after an arrest
for a DUI. Singh told Kaur that if she returned to India, “he
would take revenge” and “make [her] pay.” Id. Singh’s
mother told Kaur that if she returned, she “would not live in
peace.” AR 86.
Singh died in 2013 from alcohol-related illnesses. When
Kaur contacted her in-laws, they became very angry. They
told her she “was to blame for their son’s death” and that if
she “ever came back to India, they would get [her] killed.”
Id.
PROCEDURAL HISTORY
In fall 2001, Kaur and Singh applied for asylum. Kaur’s
asylum application falsely stated that militants in the
KAUR V. GARLAND 7
Philippines had raped her. 1 They testified before an
immigration judge on July 2, 2002, and the IJ denied their
application on July 11, 2002. The IJ found Kaur and Singh
not credible, and alternatively held that Kaur failed to meet
her burden of proof to show eligibility for relief from
removal.
Between 2003 and 2009, Kaur filed four motions to
reopen. The IJ denied the first, and the BIA denied the next
three in turn.
Finally, on January 17, 2018, Kaur filed the motion to
reopen at issue. The motion asserts material changed
circumstances arising in Kaur’s country of nationality under
8 C.F.R. § 1003.2(c)(3)(ii) due to worsened conditions since
2002 for women in India generally, combined with the more
specific changed circumstances of Singh’s death and his
family’s explicit threats. The motion also argues that Kaur
presents a prima facie case for asylum and withholding of
removal because of (1) her past abuse in India due to her
membership in the particular social group of Mr. Singh’s
family, (2) her fear of future persecution by her in-laws
because of that family membership, and (3) her fear of
persecution because of her membership in the particular
social group of Indian widows. Kaur also argues that she has
established prima facie eligibility for CAT protection
because of the past violence and rape she suffered in India,
her in-laws’ threats, and widespread corruption, impunity for
familial violence, and murder of women by their in-laws in
India.
1
Kaur states that Singh was responsible for the fabrication, and that
he threatened and physically attacked her when she objected to filing the
false application.
8 KAUR V. GARLAND
On September 25, 2018, the BIA denied Kaur’s 2018
motion to reopen, concluding that Kaur had shown no
material changed circumstances in India since her hearing in
2002. They also reasoned that she did not establish prima
facie eligibility for asylum, withholding removal, or
protection under CAT. On October 15, 2018, Kaur
petitioned for review with this Court.
STANDARD OF REVIEW
We review the denial of a motion to reopen for abuse of
discretion. Martinez v. Barr, 941 F.3d 907, 921 (9th Cir.
2019). “The BIA abuses its discretion when it acts
arbitrarily, irrationally, or contrary to the law.” Id. We
review legal questions de novo and factual findings for
substantial evidence. Barrios v. Holder, 581 F.3d 849, 854
(9th Cir. 2009), as amended, abrogated in part on other
grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th
Cir. 2013).
DISCUSSION
To prevail on her motion to reopen, Kaur
needed to clear four hurdles: (1) [s]he had to
produce evidence that conditions had
changed in [India]; (2) the evidence had to be
material; (3) the evidence must not have been
available and would not have been
discovered or presented at the previous
proceeding; and (4) [s]he had to demonstrate
that the new evidence, when considered
together with the evidence presented at the
original hearing, would establish prima facie
eligibility for the relief sought.
KAUR V. GARLAND 9
Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2008), as
amended (citations and internal quotation marks omitted);
see also 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c).
A. The BIA erred in determining that Kaur did not
establish material changed country conditions.
An alien may generally file one motion to reopen within
ninety days of a final administrative order of removal.
8 U.S.C. § 1229a(c)(7)(C)(i); see also 8 C.F.R.
§ 1003.2(c)(2). Courts disfavor motions to reopen,
especially when they work “to the advantage of the
deportable alien who wishes merely to remain in the United
States.” INS v. Doherty, 502 U.S. 314, 323 (1992). Still,
“[t]he motion to reopen is an ‘important safeguard’ intended
‘to ensure a proper and lawful disposition’ of immigration
proceedings.” Kucana v. Holder, 558 U.S. 233, 242 (2010)
(quoting Dada v. Mukasey, 554 U.S. 1, 18 (2008)).
There is no time limit for reopening when the motion “is
based on changed country conditions arising in the country
of nationality or the country to which removal has been
ordered, if such evidence is material and was not available
and would not have been discovered or presented at the
previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii)
(emphasis added); see also 8 C.F.R. § 1003.2(c)(3)(ii) (also
describing the changed country conditions exception).
Kaur filed the instant motion to reopen years after the
ninety-day deadline. Kaur must therefore show changed
country circumstances for the BIA to consider her claims.
See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
§ 1003.2(c)(3)(ii).
10 KAUR V. GARLAND
1. Singh’s death and the threats from Kaur’s in-laws
constituted more than a personal change in
circumstances
Citing Najmabadi v. Holder, 597 F.3d 983, 991 (9th Cir.
2010) and He v. Gonzales, 501 F.3d 1128, 1132 (9th Cir.
2007), the BIA concluded that Singh’s death and his parents’
death threats did not constitute a material change in country
circumstances, only a change in personal circumstances. But
this conclusion mischaracterizes the holding in Najmabadi
and He. In those cases, the Court held that “a self-induced
change in personal circumstance” such as a child’s birth in
the United States does not suffice for changed country
circumstances purposes. He, 501 F.3d at 1132 (internal
quotation marks and alterations omitted); see also
Najmabadi, 597 F.3d at 991 (petitioner’s wish to engage in
political activism in her home country did not constitute
changed country circumstances). The rule established in He
and Najmabadi makes sense because “otherwise, applicants
could move to reopen by changing circumstances within
their control.” Larngar v. Holder, 562 F.3d 71, 77 (1st Cir.
2009).
But the utility of the rule in He and Najmabadi does not
hold water when the changed circumstances occur in the
country of nationality or the country to which removal is
ordered, and are entirely outside the petitioner’s control,
even if they are personal, painful, or life-altering. 2 The He
2
Two unpublished memorandum dispositions illustrate this point.
In Lopez v. Sessions, 688 Fed App’x 497, 499 (9th Cir. 2017), we held
that when petitioner’s abusive ex-husband had returned to her country of
origin in the period between the removal proceedings and the motion to
reopen, a change in country circumstances had occurred. In Bains v.
Holder, 584 Fed. App’x 574, 576 (9th Cir. 2014), we held that when
threats against a Sikh activist in India had increased since the removal
KAUR V. GARLAND 11
and Najmabadi principle cannot apply rigidly when changed
circumstances in the country of origin, while personal to the
petitioner, are entirely outside her control.
Kaur’s changed circumstances are, in part, deeply
personal. But her husband’s death in India and the ensuing
threats from her in-laws were new circumstances in India,
entirely outside her control; she herself did not volitionally
change or affect them.
2. Kaur’s change in circumstances makes all the
more relevant the worsening conditions for
women, especially widows, in India
On top of Kaur’s new and uncontrollable external family
turmoil in India, the material increase in violence against
women in India since 2002 contributed to the changed
country conditions affecting Kaur. As Chandra v. Holder,
751 F.3d 1034 (9th Cir. 2014), held, even where any change
in personal circumstances is voluntary and did not originate
in the country of nationality, the changed circumstances
exception applies “if the changed country conditions are
made relevant by a change in the petitioner’s personal
circumstances.” Id. at 1038 (footnote omitted). 3
proceedings, he had shown more than a change in personal
circumstances. A friend who had visited petitioner in the United States
was tortured when he returned to India, which constituted new
“qualitatively different” evidence that established a change in country
conditions. Id.3
A recent case, Rodriguez v. Garland, 990 F.3d 1205 (9th Cir.
2021), applied Chandra, stating that “while changes in personal
circumstances may be relevant to a motion to reopen based on changed
country conditions, a petitioner cannot succeed on such a motion that
‘relies solely on a change in personal circumstances,’” id. at 1210
12 KAUR V. GARLAND
We review the BIA’s findings of fact for substantial
evidence. Barrios, 581 F.3d at 854. The BIA did not provide
substantial evidence for its conclusion here. While it found
that the documents submitted “reflect generalized evidence
of violence against, and mistreatment of, women in India
(including widows), and impunity among public officials,”
it determined that Kaur had “not submitted any evidence
showing that treatment of widows in India has worsened
since the time of her 2002 hearing.” AR 4–5.
Singh’s death and the threats made by Kaur’s in-laws
make relevant any increased violence against women,
especially widows, in India. See, e.g., Salim v. Lynch,
831 F.3d 1133, 1137–38 (9th Cir. 2016) (holding that, under
Chandra, petitioner’s conversion from Buddhism to
Christianity made material the increased violation against
Christians). 4 Kaur is now a widow, and widows in India face
increasing dangers.
(quoting Chandra, 751 F.3d at 1037). Interpreting the rule established in
Chandra, Rodriguez emphasized the regulatory language “requir[ing]
that a motion to reopen be based on ‘changed circumstances arising in
the country of nationality.” Id. (quoting Chandra, 751 F.3d at 1036). In
Rodriguez, the only change in personal circumstances the petitioner
could point to was his decision to become a government informant within
the United States. See id. at 1207, 1209–10. Rodriguez, like Chandra,
thus did not address a situation in which the circumstances that changed,
although personal, did occur “in the country of nationality” and were
beyond the control of the petitioner.
4
See also Gui Xiang Zheng v. Sessions, 720 Fed. App’x 394, 395–
96 (9th Cir. 2018) (holding that where petitioner “submitted evidence
that enforcement of China’s ‘one-child’ policy ha[d] become more
coercive and more strict since her original application,” the birth of a
child may make material those changed country circumstances);
Farrales v. Lynch, 673 Fed. App’x. 746, 748–49 (9th Cir. 2016) (holding
KAUR V. GARLAND 13
And contrary to the BIA’s conclusion, Kaur did submit
evidence concerning these increasing dangers. The number
and percentage of widows in India have increased since
2001. The new, previously unavailable evidence establishes
that the “growing number of widows in India are more at risk
of discrimination, exploitation, and abandonment and more
likely to be forced into abject poverty which threatens their
safety and their lives.” AR 69. The U.S. State Department’s
2016 report on human rights in India noted that “widows
were [viewed as] inauspicious and sometimes cast out by
their own families.” AR 181. In contrast, the most recent
State Department report on India at the time of Kaur’s July
2002 hearing (released in March 2002) did not discuss at all
the prevalence of mistreatment of India widows. 5
Kaur also presented evidence that so-called “dowry
deaths”—murders of women by their in-laws—have
increased since 2002. There were 6,917 reported dowry
deaths in India in 1998, and 8,455 reported dowry deaths in
2014. Instances of cruelty by husbands or their relatives
more than doubled from 49,170 in 2001 to 122,877 in 2014.
Widows are often ostracized and abused as well as blamed
for their husbands’ deaths.
More generally, Kaur presented evidence that violence
against women in India has materially increased since 2002.
For example, the Indian National Crime Records Bureau
recorded 13,754 incidents of rape in 1995, 24,923 in 2012,
that petitioner’s anti-corruption publications, together with the increased
political violence against critics of the government, constituted changed
country conditions).
5
It does mention Sati, the Hindu practice of burning widows on their
husbands’ funeral pyres, stating that the practice rarely—but
occasionally—occurs.
14 KAUR V. GARLAND
and 33,707 in 2013. It also found that between 2001 and
2014, incidents of crime against women more than doubled,
jumping from 1.5 million cases to about 3.5 million.
Even given the corresponding increase in India’s
population, the increased violence is material. Assuming a
female population of 463,091,989 in 1995, there were about
2.97 rapes for every 100,000 women. 6 See Population,
Female – India, World Bank, https://data.worldbank.org/ind
icator/SP.POP.TOTL.FE.IN?locations=IN (“World Bank
Data”). By 2013, assuming a female population of
614,678,382, there were about 5.48 rapes for every 100,000
women. See World Bank Data. Assuming a female
population of 489,529,545 in 1998, there were about
1.41 dowry deaths per 100,000 women, which fell slightly
to about 1.36 dowry deaths per 100,000 women in 2014,
assuming a female population of 621,854,638. See World
Bank Data. But violence against women increased from
290.72 of every 100,000 women in 2001, given a female
population of 515,957,245, to 562.83 out of every 100,000
women in 2014. And cruelty by husbands or relatives
increased from affecting 9.53 out of every 100,000 women
in 2001 to 19.76 out of every 100,000 women in 2014. In
nearly every category, the danger to widows like Kaur in
India has spiked.
True, violence against women was a problem in India in
2002. But according to Kaur’s evidence, the prevalence and
severity of human rights violations continue to materially
6
The Court provides these calculations for demonstrative purposes
only. Because they assume that all the recorded rapes were against
women and no woman experienced more than one rape, they are
imprecise. Despite the imprecision, the figures show that even with the
corresponding increase in India’s population, the prevalence of violence
against women has materially worsened over time.
KAUR V. GARLAND 15
worsen in many respects. See Salim, 831 F.3d at 1138
(finding material changed circumstances where there was
“an upsurge of religious radicalism” and “cases of
intolerance [were] on the rise”); Malty v. Ashcroft, 381 F.3d
942, 946 (9th Cir. 2004) (finding material changed
circumstances where petitioner submitted a report
describing increased violence against Coptic Christians and
a declaration describing incidents of violence against
petitioner’s family).
On questions of fact, we largely defer to the findings of
the BIA. But, as we have illustrated, the BIA’s
determinations that Kaur did not present “any” evidence of
material changes in India is simply incorrect. Given the
error, and the related error regarding the pertinence of the
change in Kaur’s personal circumstances, the BIA’s
conclusion that Kaur did not show a change in country
conditions is not supported by substantial evidence. In
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.
The BIA thus erred.
B. Prima Facie Case of Eligibility
Having concluded that Kaur’s motion to reopen meets
the changed country conditions exception, we turn to
whether Kaur has established a prima facie case for relief.
Kaur “need not conclusively establish that [she] warrants
relief.” See Salim, 831 F.3d at 1139 (emphasis added)
(quoting Ordonez v. INS, 345 F.3d 777, 785 (9th Cir. 2003)).
“A party demonstrates prima facie eligibility for relief
‘where the evidence reveals a reasonable likelihood that the
statutory requirements for relief have been satisfied.’” Id.(quoting Ordonez, 345 F.3d at 785).
16 KAUR V. GARLAND
“To determine whether [Kaur] has established a prima
facie case, the [BIA] must look at the evidence in its
entirety.” See Limsico v. INS, 951 F.2d 210, 213 (9th Cir.
1991). “It must accept as true the facts stated in . . . affidavits
[and declarations] unless they are inherently unbelievable.”
Id.
1. The BIA erred in determining that Kaur did not
establish a prima facie case of entitlement to
asylum or withholding of removal
To qualify for asylum, Kaur must show that she is a
refugee within the meaning of 8 U.S.C. § 1101(a)(42).
8 U.S.C. § 1158(b)(1). The BIA concluded that Kaur had not
shown prima facie eligibility for asylum or withholding of
removal for two reasons. First, it determined that she did not
show “that membership in a particular social group, or any
other protected ground, would be a reason, or at least one
central reason, for the harm she fears.” AR 4. 7 Second, it
determined that she did not show that she could not
reasonably relocate within India to an area away from her in-
laws.
We conclude that the BIA’s first determination was
incorrect and remand for proceedings consistent with this
conclusion, including proceedings reconsidering the
7
To establish eligibility for withholding, Kaur need not show that
membership in a particular social group is “one central reason” for the
harm she fears. See Barajas-Romero v. Lynch, 846 F.3d 351, 358 (9th
Cir. 2017). Rather, Kaur may establish a case for withholding if the
evidence establishes that membership in such a group is “‘a’ reason” for
that harm. Id. Because we hold that the BIA erred in determining that
Kaur had not met the “central reason” standard required for asylum, it
necessarily follows that the BIA erred in determining she had not met
the standard for withholding.
KAUR V. GARLAND 17
relocation issue once the BIA ascertains the appropriate
burden of proof.
i. The BIA erred in its determination that
Kaur’s membership in a particular social
group is not a central reason for the harm she
fears
To qualify for asylum, Kaur must show “that race,
religion, nationality, membership in a particular social
group, or political opinion was or will be at least one central
reason for [her] persecut[ion].” 8 U.S.C. § 1158(b)(1)(B)(i).
Relevant here, a “particular social group” means a
collection of people closely affiliated with
each other, who are actuated by some
common impulse or interest. Of central
concern is the existence of a voluntary
associational relationship among the
purported members, which imparts some
common characteristic that is fundamental to
their identity as a member of that discrete
social group.
De Valle v. INS, 901 F.2d 787, 793 (9th Cir. 1990) (quoting
Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir.
1986)). A particular social group may also consist of people
“who share a common, immutable characteristic, including
innate qualities such as sex, color, or kinship ties.” Rios v.
Lynch, 807 F.3d 1123, 1126–27 (9th Cir. 2015) (internal
quotations omitted).
The BIA reasoned that Kaur’s membership in a
particular social group or other protected characteristic
would not “be a reason, or at least one central reason, for the
harm she fears.” AR 4. While the BIA acknowledged that
18 KAUR V. GARLAND
“family ties may meet the requirements of a particular social
group depending on the facts and circumstances in the case,”
it found that Kaur had not introduced sufficient evidence for
such a finding. AR 5; see Parada v. Sessions, 902 F.3d 901,
910 (9th Cir. 2018) (quoting Rios, 807 F.3d at 1128) (“the
family remains the quintessential particular social group.”). 8
It stated that Kaur had introduced no evidence that others in
the particular social group, that is, her husband’s family, had
been similarly mistreated, noting that Kaur’s daughter, who
had lived with her paternal grandparents, did not report
experiencing physical abuse. Instead, the BIA found that
Kaur’s allegations “establish only that she fears being
harmed as a result of a personal vendetta,” which, without
more, does not provide a sufficient basis for relief. AR 5.
We disagree. First, we acknowledge that Kaur’s asserted
fear of persecution based on her membership in Singh’s
family, by other members of that same family, is an atypical
basis for an asylum claim. But a person may share an identity
with a persecutor and nonetheless claim persecution on
account of that same protected ground. Maini v. I.N.S.,
212 F.3d 1167, 1175 (9th Cir. 2000). It is a “persecuting
group’s motive, rather than its demographics, [that] is crucial
to a determination of whether a petitioner is entitled to
asylum.” Id. at 1174. If a member of a particular social
group is persecuted by other members of that same group
because those members perceive the applicant as being
“insufficiently loyal or authentic” to that group, she has been
persecuted on account of a protected ground. Id. at 1175.
8
Although the BIA may also have erred by failing to consider
Kaur’s status as an Indian widow as a particular social group, see, e.g.,
Ngengwe v. Mukasey, 543 F.3d 1029, 1034 (8th Cir. 2008); Sibanda v.
Holder, 778 F.3d 676, 681 (7th Cir. 2015), because the parties did not
fully brief the issue before this Court, we do not consider it here.
KAUR V. GARLAND 19
That Kaur claims persecution by members of the same
particular social group—Singh’s family, of which she
herself is a member—therefore does not foreclose her claims
for asylum and withholding.
Here, Kaur asserts that her late husband routinely abused
and sexually assaulted her, that he tried to force her to
terminate a pregnancy, and that his parents blame her for her
husband’s death and have threatened to kill her. According
to Kaur, both Singh and his parents accused Kaur of being a
bad wife and threatened to take revenge should she return to
India. Kaur states that Singh’s parents specifically blame
Kaur for Singh’s arrest in the United States, his subsequent
deportation, and his ultimate death. Kaur also presented
evidence that her in-laws have escalated the danger to her by
threatening her own parents and have invoked the family
relationship in their threats against Kaur. All of the threats
against Kaur, direct and indirect, have turned on her
relationship with Singh’s family, including Singh’s parents’
perception of Kaur as being “insufficiently loyal” to Singh
and his family. See Maini, 212 F.3d at 1175.
Second, the prima facie burden does not require her to
show that other members of her family have been similarly
mistreated. If Kaur was in fact “singled out for avengement
on account of” her familial status, “[t]he fact that [her]
relatives who remained behind have not been set upon is
manifestly irrelevant.” See Jahed v. INS, 356 F.3d 991, 1001
(9th Cir. 2004). The safety of similarly situated members of
the family who remained in the country of origin may be
pertinent to a claim of future persecution but does not itself
disprove it. Santos-Lemus v. Mukasey, 542 F.3d 738, 743–
44 (9th Cir. 2008), overruled in part on other grounds by
Henriquez-Rivas, 707 F.3d at 1093. Further, it is the safety
of similarly situated family members only that is pertinent to
20 KAUR V. GARLAND
a claim of persecution. See id. at 744. Kaur’s daughter,
although related to Singh, was raised by her grandparents for
thirteen years, so her role in the family group was not similar
to Kaur’s.
Third, the BIA erred in determining Kaur’s claims
merely establish a personal vendetta. “There is no exception
to the asylum statute for violence from family members; if
the government is unable or unwilling to control persecution,
it matters not who inflicts it.” Faruk v. Ashcroft, 378 F.3d
940, 943 (9th Cir. 2004). And a “retributory motive” can
“exist[] alongside a protected motive.” Madrigal v. Holder,
716 F.3d 499, 506 (9th Cir. 2013). To establish a claim for
asylum, Kaur need only show that the protected ground is
“one central reason” for the persecution. See id. A central
reason must be primary, essential, or principal. Parussimova
v. Mukasey, 555 F.3d 734, 740 (9th Cir. 2009). The
“protected ground cannot play a minor role in the alien’s past
mistreatment or fears of future mistreatment. That is, it
cannot be incidental, tangential, superficial, or subordinate
to another reason for harm.” Id. at 741 (internal citation
omitted).
While a personal vendetta without more does not provide
a sufficient basis for relief, the cultural context and Kaur’s
evidence establishes more than a mere personal vendetta.
Kaur’s status as a member of her husband’s family is not
simply an “incidental” reason for her persecution. See id. If
the familial relationship did not exist by virtue of the
arranged marriage, Kaur’s husband and in-laws would not
have threatened her or planned to harm her. See id.KAUR V. GARLAND 21
ii. Because the BIA erred in its particular social
group analysis, it must reconsider its
relocation analysis on remand
After determining that Kaur had not established
membership in a cognizable particular social group, the BIA
concluded that Kaur had not met her burden of showing that
she could not relocate. A petitioner bears the burden of
showing she could not reasonably relocate only if she has
not established past persecution; if she has, the burden falls
to the government to demonstrate that the petitioner could
avoid future persecution by “reasonably relocat[ing]
internally to an area of safety.” Singh v. Whitaker, 914 F.3d
654, 659 (9th Cir. 2019); 8 C.F.R. § 1208.13(b).
The BIA’s conclusion on the relocation question
therefore depended on its particular social group analysis.
Because the BIA erred in finding that Kaur did not
demonstrate that membership in a particular social group
was a reason for her persecution, we remand to the BIA for
further proceedings consistent with this holding, including a
determination whether Kaur has established a prima facie
case on past persecution for asylum and withholding
purposes based on her membership in Singh’s family and is
therefore entitled to a presumption of a well-founded fear of
future persecution. See Dai v. Sessions, 884 F.3d 858, 874
(9th Cir. 2018), vacated on other grounds by Garland v. Dai,
No. 19-1155, 593 U.S. __ (June 1, 2021). If so, the burden
would fall on the government, and the BIA’s current holding
on the issue—reached by placing the burden on Kaur—could
not stand.
22 KAUR V. GARLAND
2. The BIA erred in determining that Kaur did not
establish a prima facie case of entitlement to
protection under CAT
“CAT prohibits removal of a noncitizen to a country
where the noncitizen likely would be tortured.” Nasrallah v.
Barr, 140 S. Ct. 1683, 1690 (2020). For the purposes of CAT
protections,
[t]orture is defined as any act by which severe
pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such
purposes as obtaining from him or her or a
third person information or a confession,
punishing him or her for an act he or she or a
third person has committed or is suspected of
having committed, or intimidating or
coercing him or her or a third person, or for
any reason based on discrimination of any
kind, when such pain or suffering is inflicted
by or at the instigation of or with the consent
or acquiescence of a public official or other
person acting in an official capacity.
8 C.F.R. § 1208.18(a)(1).
The BIA concluded that Kaur had not met her burden for
establishing a prima facie case for protection under the CAT
because she “has not established that it is more likely than
not that she, in particular, will be tortured by or at the
instigation of, or with the consent or acquiescence of . . . a
public official or other person acting in an official capacity
in India.” AR 4. It found that Kaur based her claim that the
Indian police would acquiesce in her torture or murder on
speculation. The BIA made several errors.
KAUR V. GARLAND 23
i. The BIA incorrectly applied the “more likely
than not standard”
First, the BIA applied the wrong standard to Kaur’s
motion to reopen. The proper standard for deciding whether
she had established a prima facie case for protection under
CAT requires only that Kaur show a “reasonable likelihood
that the statutory requirements for relief have been
satisfied.” Ordonez, 345 F.3d at 785 (internal quotation
omitted). Respondent cites Nuru v. Gonzales, 404 F.3d 1207,
1216 (9th Cir. 2005), for the proposition that a “reasonable
likelihood” standard and a “more likely than not” standard
are equivalent. Not so. The “reasonable likelihood” standard
applies at the motion to reopen stage, while the “more likely
than not standard” applies to CAT protection claims
themselves. Compare Ordonez, 345 F.3d at 785 with Nuru,
404 F.3d at 1216.
To prevail on her motion to reopen, Kaur need not prove
her CAT claim. She must merely show that there is a
reasonable likelihood that she will be able to show that it is
more likely than not she will be tortured if returned to India.
The BIA thus erred by requiring Kaur’s prima facie case to
establish that torture was more likely than not.
ii. The BIA abused its discretion in finding that
Kaur did not meet the “consent or
acquiescence” requirement
The “consent or acquiescence” requirement of CAT
requires that the government of the country of deportation be
aware of the alleged torture but either “willfully blind to it
. . . or unwilling[] to oppose it.” Cole v. Holder, 659 F.3d
762, 771 (9th Cir. 2011); see 8 C.F.R. § 1208.18(a)(1).
Evidence of police corruption supports a finding of state
involvement. Barajas-Romero v. Lynch, 846 F.3d 351, 363
24 KAUR V. GARLAND
(9th Cir. 2017). The BIA must consider past torture as well
as evidence of “‘gross, flagrant, or mass violations of human
rights’ in the home country and other country conditions.”
Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1080 (9th
Cir. 2015) (quoting Nuru, 404 F.3d at 1218–19).
Kaur presented evidence that Singh’s parents are
wealthy and have the means to carry out their threats upon
her return. The U.S. State Department has stated that India
suffers widespread corruption and that officials respond
ineffectively to crimes, especially crimes against women. In
fact, according to the U.S. State Department, violence by
Indian police, including extrajudicial killings, torture, and
rape, remains one of India’s “most significant human rights
problems.” AR 142. Based on that evidence, the BIA did not
have substantial evidence to dismiss Kaur’s fears as
speculation. The BIA thus abused its discretion when ruling
on Kaur’s establishment of a prima facie case under CAT. 9
CONCLUSION
We REMAND this case to the BIA for further
proceedings consistent with this opinion.
9
In assessing Kaur’s CAT claim on remand, the BIA should
consider “all evidence relevant to the possibility of future torture,”
including evidence that Kaur could relocate. 8 C.F.R. § 1208.16(c)(3).
As the CAT regulation “does not bar relief if an applicant could
relocate,” Akosung v. Barr, 970 F.3d 1095, 1101 (9th Cir. 2020), she
need not establish that she cannot reasonably relocate as part of her prima
facie case. Compare 8 C.F.R. § 1208.13(b)(3) with §§ 1208.16(c)(3),
1208.18.