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Severe Harm Required For Asylum And CAT Claims

Persecution Does Not Include Every Type of Abuse That Our Society Perceives as Offensive or Unlawful.
 

The procedural history, facts of record, holding and rationale in Pardeep Kumar v. Garland (September 21, 2022) No. 20-60712 are as follows:

 

Case History

An asylum officer referred the Petitioner’s case to an Immigration Judge, after conducting a credible fear interview.

 

The Department of Homeland Security (“DHS”) issued a Notice to Appear (“NTA”) to the Petitioner, charging that he was subject to removal from the United States for entering the United States without valid entry documents and for being present in the United States without admission or parole.

 

The Immigration Judge sustained both removal charges.

 

The Petitioner then applied for asylum and withholding of Removal.

 

Ultimately, the Immigration Judge denied Kumar’s claims for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).

 

The Petitioner timely filed a notice of appeal of the Immigration Judge’s decision to the Board of Immigration Appeals (“BIA”).

 

The BIA ultimately denied the Petitioner’s applications for asylum, withholding of removal, and CAT protection, and also denied the Petitioner’s motion to remand.

 

The Petitioner then filed a petition for review of the BIA’s decisions.

 

 

Facts

  • The Petitioner is a native and citizen of India, who entered the United States without inspection in January 2019.
  • On January 21, 2019, an asylum officer conducted a credible fear interview with the Petitioner and found that he had a credible fear of persecution if he returned to India.
  • The asylum officer then referred the Petitioner’s case to an immigration judge and the DHS served him with an NTA and filed it in Immigration Court.
  • The NTA charged that the Petitioner is subject to removal from the United States under sections 212(a)(7)(A)(i)(1) (immigrant at the time of application for admission who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required under the immigration law, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality) and 212(a)(6)(A)(i) (alien who is present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than designated by the Attorney General) of the Immigration and Nationality Act, as amended (“the Act”).
  • On April 18, 2019, the Immigration Judge sustained both charges of removability and the Petitioner filed applications for asylum and withholding of removal.  See sections 208 and 241(b)(3) of the Act.
  • The Immigration Judge scheduled the Petitioner’s merits hearing for July 23, 2019, but the hearing was continued ultimately to November 15, 2019 because the Petitioner was in the hospital due to the physical effects of his participation in a hunger strike.
  • On November 15, 2019, the Petitioner moved to continue the hearing so he would have 20 to 25 days for a video, photographs, and other documents to arrive from India to support his asylum claim.  However, the Immigration Judge denied his request for failure to show good cause for a continuance.
  • The Petitioner testified as follows:

He feared returning to India because he believed the Bharatiya Janata Party (“BJP”), India’s ruling political party, would kill him if he returned to India.

He had worked for another party, the Indian National Lok Dahl Party (“INDP”) which resulted in attacks from the BJP.

On July 13, 2018, as part of his role with the INDP, he was plastering posters in a village.

Four members of the BJP approached him and told him to stop plastering the posters and leave the INDP.  The Petitioner refused, but the members continued to attempt to persuade him by offering him the opportunity to sell illegal drugs.  The Petitioner again refused, and the BJP members began punching, kicking, and slapping him.  He screamed, which caused people in nearby houses to come investigate.  The BJP members ran off but threatened the Petitioner before they left that if he did not leave the INDP, it “would not be good for [him].”

The Petitioner described his injuries as “minor,” consisting of swelling, and stated he treated his injuries with at-home pain medication.

The Petitioner and his uncle attempted to report the attack to the police, but the police refused to file a report. They told him that they would not report the party because it was the current government and if he persisted, they would “arrest [him] and put [him] in prison.”

On October 5, 2018, the BJP attacked the Petitioner again when he was leaving an INDP blood donation event.  He was biking home from the event when a vehicle approached and a person signaled for him to stop. He stopped, and four people exited the car holding hockey sticks and other wooden sticks. They beat him with the sticks and told him that they “warned [him] previously” to leave the party, but he did not listen.  They warned: “[w]e came to finish you off . . . [w]hen we get hold of you again, we’ll make sure you’re dead.”

The Petitioner went to the hospital for three days for treatment of his injuries.

The Petitioner then moved to his uncle’s house for four to five days before leaving that same month for the United States out of fear of future attacks.

  • The Immigration Judge made an adverse credibility determination against the Petitioner and denied his claims for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) on the merits.
  • The Petitioner timely filed his notice of appeal to the BIA.
  • In his brief to the BIA, the Petitioner moved for a remand to the Immigration Judge because he had acquired previously unavailable evidence for which he had sought a continuance, including a new personal declaration, a medical evaluation, affidavits from other INDP members, and photographs of his injuries.
  • The BIA ultimately denied the Petitioner’s applications for asylum, withholding of removal, and CAT protection on the merits, and denied his motion to remand.

 

Held

Petition for review DENIED in part and DISMISSED in part

 

Rationale

The Petitioner challenged the BIA’s decisions on both substantive and procedural grounds:

Substantive Grounds

  1. The BIA erroneously concluded that he did not suffer past persecution, and could relocate to another part of India.
  2. The BIA erroneously concluded that he was not entitled to CAT relief (“Convention Against Torture” described under 8 C.F.R. § 1208.16(c).
  3. The BIA erred by concluding that the new evidence he presented would not have changed the outcome of his case.

 

Procedural Grounds

  1. The BIA “applied the wrong standard” by not considering the cumulative effect of his experiences in concluding that the Petitioner did not suffer past persecution.
  2. The BIA erred procedurally by relying on irrelevant caselaw in concluding he did not suffer past persecution.   
  3. The BIA erred by affirming the Immigration Judge’s determination that the Petitioner failed to establish that he could reasonably relocate in India because it improperly applied the burden of demonstrating relocation upon the Petitioner.  Instead, the Government should have had to show relocation is unreasonable because, as the ruling party in India, the BJP should be considered the national government.
  4. The BiA denied the Petitioner due process by failing to correct the Immigration Judge's mistaken reliance on a discrepancy between the Petitioner's testimony about the year of his father's death (2013) and an affidavit describing the receipt of information from the Petitioner's father in 2018 which contributed to an adverse credibility finding.  According to the Petitioner, his father and his uncle shared the same name and no discrepancy actually exists.
  5. The BIA denied the Petitioner due process by failing to advise him that he could submit a written declaration in place of in-court testimony and by failing to advise him of the possibility of obtaining a medical evaluation while in detention.
  6. The BIA denied him due process because it affirmed the Immigration Judge's denial of his motion to continue his hearing.
  7. The BIA erred procedurally because it did not give meaningful consideration to all the relevant evidence in hs case.  In particular, the BIA failed to address key country conditions evidence because the BIA did not address affidavits he had attached as part of his motion to remand that discussed how deported INDP workers were attacked upon return and also the significance of India’s nationwide identification system.
  8. The BIA failed to consider a medical evaluation taken on January 31, 2020, that would have shown the severity of his attacks.
  9. The BIA failed to consider a series of arguments he provided on the Immigration Judge's mischaracterization of evidence - specifically the Petitioner's affidavits, his testimony on the BJP's motive, and his testimony on government acquiescence.

 

Jurisdiction

The Fifth Circuit Court of Appeal determined its jurisdiction over the Petitioner’s claims as follows:

Jurisdiction over a petition for review from the BIA only exists if the alien has “exhausted all administrative remedies available to the alien as of right.” See section 242(d) of the Immigration and Nationality Act, as amended (“the Act”).

A remedy is available to the alien as of right when “(1) the petitioner could have argued the claim before the BIA, and (2) the BIA has adequate mechanisms to address and remedy such claim.”  Omari v. Holder, 562 F.3d 314, at 318–19 (5th Cir. 2009). This means the petitioner “must raise, present, or mention an issue to the BIA,” putting the BIA on notice of his claim before raising it in this court.  Omari v. Holder, at 321– 2.

 

Procedural Grounds

  1. The BIA “applied the wrong standard” by not considering the cumulative effect of his experiences in concluding that the Petitioner did not suffer past persecution:  The Petitioner did not raise this claim in a way that would have put the BIA on notice that the BIA was required to consider his evidence cumulatively.  Therefore, this claim is unexhausted – No Jurisdiction
  2. The BIA erred procedurally by relying on irrelevant caselaw in concluding he did not suffer past persecution:  The Immigration Judge did not rely on any case cited by the Petitioner in his petition for review, and the Petitioner identified only one of the four cases he challenges in his brief to the BIA.  Because the Petitioner challenges the BIA’s application of the cases that were not similarly applied by the Immigration Judge, it constitutes an error that necessarily could not have been raised to the BIA previously.  See Omari v. Holder, 562 F.3d at 319.  Therefore, this claim is unexhausted – No Jurisdiction
  3. The BIA erred by affirming the Immigration Judge’s determination that the Petitioner failed to establish that he could reasonably relocate in India because it improperly applied the burden of demonstrating relocation upon the Petitioner.   The Petitioner did not make a concrete statement to the BIA that would put the BIA on notice that he sought to challenge the standard the Immigration Judge used to assess whether he could relocate.  Therefore, this claim is unexhausted – No Jurisdiction
  4. The BIA denied the Petitioner due process by failing to correct the Immigration Judge’s mistaken reliance on a discrepancy between the Petitioner’s testimony about the year of his father’s death, (2013) and an affidavit describing the receipt of information from the Petitioner’s father in 2018 which contributed to an adverse credibility finding.  The Petitioner’s argument that that both his uncle and his father are named Balwan Singh which created an apparent discrepancy that did not exist was made the BIA and the BIA addressed it.  Therefore, this claim is exhausted – Jurisdiction Preserved
  5. The BIA denied the Petitioner due process by failing to advise him that he could submit a written declaration in place of in-court testimony and by failing to advise him of the possibility of obtaining a medical evaluation while in detention.  The Petitioner raised this claim to the BIA in his appeal from the Immigration Judge’s decision and the BIA had an opportunity to consider it.  Therefore, this claim is exhausted – Jurisdiction Preserved
  6. The BIA denied the Petitioner due process because it affirmed the Immigration Judge’s denial of his motion to continue his hearing.  This argument is an instance where the Petitioner accuses the BIA of repeating the legal and factual errors that he asked it to correct when he appealed the Immigration Judge’s adverse ruling.  Therefore, this claim is exhausted – Jurisdiction Preserved
  7. The BIA erred procedurally because it did not give meaningful consideration to all the relevant evidence in his case by not addressing affidavits he had attached as part of his motion to remand.  The Petitioner’s arguments that India’s identification system shows he cannot relocate and that the Immigration Judge mischaracterized evidence were presented to the BIA in an effort to correct the same error by the Immigration Judge.  Therefore, these claims are exhausted – Jurisdiction Preserved 
  8. The BIA failed to consider a medical evaluation taken on January 31, 2020, that would have shown the severity of his attacks.  Evidence of this claim was not before the Immigration Judge and requires a motion to reconsider which was not filed.  Therefore, this claim is unexhausted – No Jurisdiction
  9. BIA failed to consider the Petitioner’s affidavits, his testimony on the BJP’s motive, and his testimony on government acquiescence.  Evidence of this claim was not before the Immigration Judge and requires a motion to reconsider which was not filed.  Therefore, this claim is unexhausted – No Jurisdiction

 

Substantive Grounds

  1. The BIA erroneously concluded that he did not suffer past persecution, and could relocate to another part of India.
  2. The BIA erroneously concluded that he was not entitled to CAT relief (“Convention Against Torture” described under 8 C.F.R. § 1208.16(c).
  3. The BIA erred by concluding that the new evidence he presented would not have changed the outcome of his case.

These substantive claims were raised or lost before the BIA and focus on answers to issues he previously raised before the Immigration Judge.

These substantive claims are exhausted because they were not created solely by the proceedings before the BIA.  See Dale v. Holder, 610 F.3d 294, at 300 (5th Cir. 2010); Martinez-Guevara v. Garland, 27 F.4th 353, at 360 (5th Cir. 2022) – Jurisdiction Preserved

 

Substantial Evidence Review

The Fifth Circuit Court of Appeal addressed merits of the Petitioner’s substantive claims as follows:

The BIA’s factual findings for substantial evidence and rulings on questions of law de novo (legalese meaning a new decision unaffected by a previous decision). Mireles-Valdez v. Ashcroft, 349 F.3d 213, at 215 (5th Cir. 2003).

Under substantial evidence review, the BIA’s factual determinations will not be reversed unless the evidence not only supports a contrary conclusion, but that the evidence compels it.  Chun v. INS, 40 F.3d 76, at 78 (5th Cir. 1994) (citing INS v. Elias-Zacarias, 502 U.S. 478, at 481 n.1 (1992)).  

It is the petitioner’s burden to show that “the evidence is so compelling that no reasonable factfinder could reach a contrary conclusion.” Chen v. Gonzales, 470 F.3d 1131, at 1134 (5th Cir. 2006).

 

Past Persecution

  • Persecution is an extreme concept.  Morales v. Sessions, 860 F.3d 812 (5th Cir. 2017.
  • In Gjetani v. Barr, 968 F.3d 393, at 395 (5th Cir. 2020), multiple death threats and a beating requiring hospitalization did not constitute persecution.  See also Abdel-Masieh v. INS, 73 F.3d at 582, at 584 (two three-hour detentions with beatings and continual tracking was not persecution).  Although the Petitioner experienced harm at the hands of the BJP, the two beatings and subsequent injuries he suffered do not compel a contrary conclusion that the harm endured amounts to persecution.
  • Since the evidence does not compel a contrary result, dismissal of the Petitioner’s past persecution claim is supported by substantial evidence.

 

Reasonable Relocation

  • The evidence presented showed only the BJP, not the Indian government itself, supported or sponsored the attacks against the Petitioner.
  • Thus, it was reasonable for the BIA to conclude that the BJP’s significant influence did not transform it into the Indian government.  See Singh v. Whitaker, 751 F. App’x 565, 567 (5th Cir. 2019); Khadiwal v. Lynch, 667 F. App’x 460, 461 (5th Cir. 2016) (holding petitioner did not show BJP, his persecutor, was the national government).
  • The Petitioner did not present evidence that workers of his party were unable to live safely because of the existence of a national identification system.
  • The evidence, therefore, does not compel a contrary conclusion that the identification system in itself shows that the Petitioner could not reasonably relocate within India.
  • In short, the BIA’s decision that the Petitioner could reasonably relocate within India is supported by substantial evidence.

 

Petitioner’s January 31, 2020, Medical Evaluation

  • The January 31, 2020 medical evaluation largely describes the Petitioner’s medical status as it relates to his hunger strike during his immigration detention in the United States.
  • The evaluation mentions the Petitioner’s experience with the BJP in one paragraph but does not relate his medical symptoms to their attacks, only to his hunger strike.
  • The evaluation, therefore, does not compel the conclusion that it corroborates the extent of his persecution from the BJP. 
  • Thus, the BIA’s conclusion that the evaluation did not relate to the Petitioner’s claims is supported by substantial evidence.

 

Withholding of Removal

  • A petitioner must meet a higher burden of proof than asylum to be entitled to withholding of removal.  Orellana-Monson v. Holder, 685 F.3d 511, at 518 (5th Cir. 2012).
  • Therefore, for the same reasons governing the denial of the Petitioner’s asylum claim, dismissal of his claim for withholding of removal is supported by substantial evidence.

 

Convention Against Torture Claim

  • Since the BIA’s conclusion that the Petitioner did not suffer persecution was supported by substantial evidence, it also follows that the harm underlying his asylum claim does not constitute torture, as torture is an even higher bar. Qorane v. Barr, 919 F.3d 904, at 911 (5th Cir. 2019).
  • Thus, the evidence does not compel a contrary conclusion to the BIA’s decision affirming that the Petitioner did not endure mistreatment that rose to the level of torture.

 

Review of Preserved Procedural Arguments

To show that the BIA denied a petitioner due process, the petitioner must “make an initial showing of substantial prejudice.”  Okpala v. Whitaker, 908 F.3d 965, at 971 (5th Cir. 2018).  This requires the petitioner to make a prima facie showing (i.e. legalese meaning superficial showing) that the alleged violation affected the outcome of the proceedings.

 

Mistaken Discrepancy

  • BIA stated that it assumed on appeal that Kumar was credible and addressed his claims accordingly.
  • Therefore, the Petitioner cannot show any prejudice based on the Immigration Judge’s mistaken perception of a discrepancy that influenced an adverse credibility finding against the Petitioner.

 

Failure to Advise About Possibly Obtaining a Medical Evaluation

  • The record shows the Petitioner was aware of his right to provide documentary evidence and that he could submit a written statement and medical records.
  • although the Immigration Judge has a duty to facilitate the testimony of pro se applicants, the IJ may not “take on the role of advocate” and instruct which documents would be most persuasive to submit.  See In re J-E-F-, 23 I & N Dec. 912, at 922 (BIA 2006).
  • Therefore, the Petitioner cannot establish prejudice based on the Immigration Judge’s alleged failure to instruct him that he could obtain a medical evaluation.

 

Denial of Motion to Continue

  • Petitioner’s effort to demonstrate substantial prejudice arising from denial of his motion for continuance fails because, based on the record, it cannot be concluded that even with the evidence that would have been presented, “the outcome of [the petitioner’s] proceeding would have been any different.”  See Ogunfuye v. Holder, 610 F.3d 303, 306 (5th Cir. 2010).

 

Failure to Consider Petitioner’s Evidence and Arguments

  • The BIA must meaningfully consider “the relevant substantial evidence supporting the alien’s claims.”  See Abdel-Masieh, 73 F.3d at 585.
  • The BIA did not specifically discuss the Immigration Judge’s interpretation of the evidence, but it did reference the particular testimony on the severity of his attacks, the police involvement, and the affidavits that the Petitioner alleged the Immigration Judge misconstrued.
  • The BIA is not required to specifically address every piece of evidence put before it.  Abdel-Masieh, 73 F.3d 585.
  • The BIA did mention the evidence that the Petitioner alleges it failed to consider meaningfully.
  • Therefore, the Petitioner’s argument that the BIA did not consider his evidence and arguments fails.

 

Commentary

A bulk of the text in Pardeep Kumar v. Garland (September 21, 2022) No. 20-60712 is dedicated to parsing through the Petitioner’s claims and applying sections 242(d) and 242(b)(4)(B) of the Act to determine whether the Petitioner had “exhausted” his administrative remedies and whether “any reasonable adjudicator would be compelled to conclude contrary” to the administrative findings of fact.

Nothing new here, but the Fifth Circuit Court of Appeal’s virtuoso appellate review performance serves to remind the audience of the importance of clearly and precisely defining issues and persuading administrative decision makers at the at the ground level of the immigration court and the BIA.

Pardeep Kumar v. Garland also touches on the intriguing subject of the severity of inflicted pain and suffering necessary to qualify an asylum applicant for relief, as well as an applicant who is seeking relief under the Convention Against Torture (“CAT”).

 

Level of Harm Required For Asylum

An asylum applicant must establish a level of punishment or harm that is sufficient to classify as persecution.  The punishment or harm alleged in an asylum application must be extreme enough or egregious enough to classify as persecution.  Persecution in the context of asylum law does not include every type of abuse that our society perceives as offensive or unlawful.  See Arif v. Mukasey, 509 F.3d 677, at 680 (5th Cir. 2007); Fatin v. INS, 12 F.3d 1233, at 1243 (3rd Cir. 1993); Korablina v. INS, 158 F.3d 1038, at 1034 (9th Cir. 1998).  For this reason, mere threats, harassment, intimidation, interrogations, discrimination, etc. without more will not ordinarily be enough to establish persecution.  Even physical violence in the form of beatings causing bruising and bleeding and brief periods of incarceration are not usually considered to be punishment or harm that is overwhelming enough to classify as persecution. 

The asylum applicant, therefore, must be prepared to provide evidence in sufficient detail about the severity of past abuse or the anticipated abuse if returned to the applicant’s country of nationality or last habitual residence. For example, if an asylum applicant has been psychologically traumatized by punishment or harm it would be wise to obtain a psychological evaluation to determine if he or she is suffering from post traumatic stress. 

The details of the punishment or harm are important.  For example, the Seventh Circuit Court of Appeal determined that a single incident of abuse can constitute persecution as long as the specific facts reveal the severity of the situation.  Irasoc v. Mukasey, 522 F.3d 727 (7th Cir. 2008).  In the Irasoc case, there was not only evidence of hand cuffing and loss of consciousness.  The record reflected that extreme pain levels caused by repeated beatings and forcibly kicking Irasoc’s testicles led to unconsciousness.  Representation of asylum applicants is not for the squeamish or faint of heart.

 

Level of Harm Required for CAT Claims

The United States signed the United Nations Convention Against Torture and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (the “Convention Against Torture”) treaty on October 18, 1988.

The United States Senate ratified the treaty on October 27, 1990, and the Convention Against Torture became binding on the United States on November 20, 1994.  See 136 Cong. Rec. S17,486, S17,492 (daily ed. Oct. 27, 1990) and 74 Interpreter Releases, No. 45, Nov. 21, 1997, at 1773, 1781 (citing U.N. Doc. No. 571 Leg/SER. E/13, IV.9 (1992)).

For the purpose of determining eligibility for relief for withholding of removal under the Convention Against Torture, “torture” means the intentional infliction of severe mental or physical pain or suffering, for an illicit purpose, at the instigation or with the consent or acquiescence of a public official or other person acting in an official capacity while the targeted person is in the custody or physical control of the perpetrator.  See 8 C.F.R. § 1208.18(a)(1), (6).

To qualify as torture, mental pain or suffering must be prolonged harm arising from:  1) intentional infliction or threatened infliction of severe physical pain or suffering; 2) administration or threatened administration of mind altering substances or procedures intended to profoundly disrupt the senses or personality; or 3) a threat of imminent death to the applicant or another.  See 8 C.F.R. § 1208.18(a)(4).

Unanticipated severity of pain or suffering does not constitute torture.  Matter of J-R-G-P-, 27 I&N Dec. 482, at 484 (BIA 2018); Matter of R-A-F-, 27 I&N Dec. 778 (A.G. 2020).  See 8 C.F.R. § 1208.18(a)(5). 

Torture also does not include lesser forms of cruel, inhuman treatment, or degrading treatment, such as the infliction of pain or suffering arising only from lawful sanctions.  Matter of J-E-, 23 I&N Dec. 291 (BIA 2002).

In Pardeep Kumar v. Garland, at p.15, the Fifth Circuit Court of Appeal simply declared that the “BIA’s conclusion that Kumar did not suffer persecution was supported by substantial evidence, “[i]t follows a fortiori [the harm] do[es] not constitute torture,” as torture is an even higher bar.  Qorane v. Barr, 919 F.3d 904, 911 (5th Cir. 2019).” 

The only guidance that can be drawn from this succinct comparison seems to be that the harm necessary to qualify for CAT relief must be greater than the harm necessary to qualify for asylum.

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