                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-17-2007

Kaur v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4256




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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 06-4256


                                   JASPAL KAUR,
                                            Petitioner

                                          v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                                   Respondent


                       On Petition for Review of an Order of the
                           Board of Immigration Appeals
                                 BIA No. A70-908-120
               (U.S. Immigration Judge: Honorable Rosalind K. Malloy)


                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                               September 12, 2007
        Before: SCIRICA, Chief Judge, FUENTES and SMITH, Circuit Judges

                              (Filed: September 17, 2007)


                             OPINION OF THE COURT


PER CURIAM.

      Jaspal Kaur petitions for review of an order of the Board of Immigration Appeals

(BIA) denying her application for asylum, withholding of removal and protection under

the Convention Against Torture. We will deny the petition.
       The Attorney General has discretion to grant asylum to an alien who is found to be

a refugee. 8 U.S.C. § 1158(b)(1). An asylum applicant bears the burden of establishing

that she is a refugee by demonstrating that she is unable or unwilling to return to her

home country or is unable or unwilling to avail herself of the protection of her home

country because of past persecution or a well-founded fear of future persecution on

account of race, religion, nationality, membership in a particular social group, or political

opinion. 8 U.S.C. § 1101(a)(42)(A); Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir.

2001). If the applicant demonstrates past persecution, she creates a rebuttable

presumption that she also has a well-founded fear of future persecution. 8 C.F.R.

§ 208. 13(b)(1). Where the BIA issues a decision on the merits, we review the BIA’s

decision, and not the IJ’s. Lie v. Ashcroft, 396 F.3d 530, 534 n.3 (3d Cir. 2005). We

review whether the BIA’s decision was supported by substantial evidence. Kayembe v.

Ashcroft, 334 F. 3d 231, 234-35 (3d Cir. 2003).

       Kaur is a Sikh and was or is a member of the All-India Sikh Students Federation

(“AISSF”), a group that supported the creation of Khalistan as a separate Sikh state. A.R.

201.1 Kaur testified that because of her political involvement, she was twice arrested and

mistreated. The first incident occurred in Hosiarpur in 1990 when Kaur was protesting




   1
     The BIA noted that the IJ had not expressly made a credibility finding, and thus assumed
that Kaur was credible. A.R. 3. We similarly assume Kaur’s credibility. Cf. Kayembe,
334 F.3d at 234-35 (court assumes credibility where BIA has not made a credibility
finding).

                                               2
the fact that Simranjit Singh Mann was not allowed to take his seat in the Indian

parliament. A.R. 205-06. Kaur was arrested and detained for two days, during which

time she was beaten and sexually molested. A.R. 212-15. After she was released, Kaur

continued to work for the AISSF. Her family eventually determined that she should leave

the Punjab region, and she moved to Calcutta in February 1992. On February 29, 1992,

she was giving a speech at a gurdwara (Sikh temple), asking the audience to support an

independent Khalistan. She was arrested, slapped, and deprived of food for almost a day.

A.R. 222. Her uncle paid a bond for her release. Id. After her release, her family

decided that she should leave the country. Id. She fears returning to India, because the

Congress party, a party opposed to creation of a Sikh homeland, governs the country.

A.R. 223.

       The BIA determined that Kaur had established past persecution, but found that

“the evidence of record demonstrates that country conditions have changed to such an

extent that the respondent no longer has a ‘well-founded fear’ of persecution if returned

to her native country.” A.R. 3. In particular, the BIA noted that “the

insurgency/counterinsurgency in Punjab has ended.” The BIA noted that the current

prime minister in India was a Sikh, and that the Indian government had taken steps to

hold accountable police and security officials who engaged in serious human rights

abuses. Id. The BIA acknowledged that Sikhs who had been identified as high-level




                                             3
militants might still be detained or questioned by police, but noted that there was no

evidence that Kaur fell into this category. Id.; see also A.R. 505-09 .

       We find that substantial evidence in the record supports the BIA’s holding that the

Government rebutted the presumption of future persecution. We further agree that

because Kaur did not meet the standard for asylum, she failed to meet the higher standard

for statutory withholding of removal. We also uphold the finding that the record did not

support a conclusion that Kaur would likely to be tortured upon her return to India.

       For the foregoing reasons, we will deny the petition for review.




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