                                                                                     FILED
                               NOT FOR PUBLICATION                                    JUN 09 2010

                                                                                  MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                              U .S. C O U R T OF APPE ALS




                                FOR THE NINTH CIRCUIT



 SATNAM KAUR,                                           No. 06-75161

               Petitioner - Appellant,                  Agency No. A97 126 084

   v.
                                                        MEMORANDUM *
 ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


                        On Petition for Review of an Order of the
                            Board of Immigration Appeals

                           Argued and Submitted May 14, 2010
                                San Francisco, California

Before: HUG and McKeown, Circuit Judges, and FAWSETT,** Senior District
Judge.


        Satnam Kaur, a citizen of India, petitions for review of the decision of the

Board of Immigration Appeals (“BIA”) denying her application for asylum,



         *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.

      **
              The Honorable Patricia C. Fawsett, Senior United States District Judge for the
Middle District of Florida, sitting by designation.

                                                1
withholding of removal, and protection under the Convention Against Torture

(“CAT”). We grant the petition for review as to the asylum and withholding of

removal claims and remand these claims to the agency for further proceedings. We

deny the petition for review of the CAT claim.

       The BIA’s determination that Kaur did not suffer harm severe enough to rise

to the level of persecution is not supported by substantial evidence. An applicant

alleging past persecution has the burden of establishing that: “(1) [her] treatment rises

to the level of persecution; (2) the persecution was on account of one or more

protected grounds; and (3) the persecution was committed by the government, or by

forces that the government was unable or unwilling to control.”1 Baghdasaryan v.

Holder, 592 F.3d 1018, 1023 (9th Cir. 2010) (citing Chand v. INS, 222 F.3d 1066,

1073 (9th Cir. 2000)). Kaur’s credible, uncontroverted testimony establishes that

while she was detained and questioned by the Indian police for two days, she suffered

two separate, severe beatings that necessitated prolonged recuperation and medical

treatment. The police took Kaur to the police station where they slapped her, pulled

her hair, hit her on the soles of her feet and legs with a stick, and hit her on the back

and feet with a leather strap. The first beating concluded when Kaur was knocked

unconscious by a blow to the head with an unknown object. When she regained


        1
        The parties do not dispute that the alleged persecution was committed by the
government, mainly the Indian police.

                                              2
consciousness that night, she was again beaten in a similar manner by the Indian

police.2 Kaur was released from jail the next day after a family member paid a 70,000

rupee bribe. Unable to gain admission to a hospital, Kaur received two weeks of

medical treatment for her injuries from a medical doctor and spent an additional three

weeks recuperating at her home before she was able to return to work. After learning

that the Indian police were again looking for her at both her work and her home, Kaur

went into hiding for over two months until, through the efforts of a family member,

she was able to leave India. At the time of Kaur’s merits hearing, over three years

after her detention and beatings, the Indian police were still continuing to search for

her. This undisputed evidence compels a reasonable fact finder to conclude that Kaur

was subjected to treatment rising to the level of persecution. See Guo v. Ashcroft, 361

F.3d 1194, 1202-03 (9th Cir. 2004); Duarte de Guinac v. INS, 179 F.3d 1156, 1161

(9th Cir. 1999).

       Having established treatment rising to the level of persecution, Kaur must next

demonstrate that the persecution was on account of race, religion, nationality,

membership in a particular social group, or political opinion. Baghdasaryan, 592 F.3d

at 1023 (internal citation omitted). The BIA determination that the Indian authorities

were interested in Kaur only to the extent that they sought to elicit information about


        2
          Kaur’s unrefuted testimony was corroborated by the affidavit of her brother-in-law
who described her beating as “brutal.”

                                               3
her friend and to investigate Kaur’s participation in illegal activity is not supported by

substantial evidence. Kaur’s credibility was not assailed. Her testimony established

that during her interrogations and beatings, the police accused her several times of

being a Khalistani and repeatedly asked her about the identities of the Khalistanis who

had visited her, with which Khalistanis she was associated, and where such

Khalistanis were located. These statements constitute unmistakable circumstantial

evidence that the police were motivated, at least in part, by an imputed political

opinion. See Gafoor v. INS, 231 F.3d 645, 651-52 (9th Cir. 2000); Yazitchian v. INS,

207 F.3d 1164, 1167-68 (9th Cir. 2000). No reasonable fact finder could have found

otherwise. Accordingly, the record compels a finding of past persecution which then

triggers a presumption that a petitioner has a well-founded fear of future persecution.

Mamouzian v. Ashcroft, 390 F.3d 1129, 1135 (9th Cir. 2004).

      The government can rebut this presumption by presenting evidence that

conditions have changed or that relocation is possible so that the petitioner no longer

has a well-founded fear that she would be persecuted if she were to return to India.

8 C.F.R. § 208.13(b)(1). In light of its finding with respect to persecution, the BIA

did not consider the presumption or whether the government had rebutted it. We

therefore remand in order to provide the BIA with the “opportunity to address the

matter in the first instance in light of its own expertise.” See INS v. Orlando Ventura,



                                            4
537 U.S. 12, 17-18 (2002).

      Since the record compels a finding of past persecution, Kaur also is entitled to

a presumption of eligibility for withholding of removal. Mousa v. Mukasey, 530 F.3d

1025, 1030 (9th Cir. 2008) (citing standard). This presumption may be rebutted if the

government shows a fundamental change in circumstances or shows that Kaur could

reasonably relocate within India. Id. Because the BIA determined that Kaur did not

suffer past persecution, the BIA neither applied this presumption nor considered

whether it had been rebutted by the government. Thus we remand the withholding

of removal claim to the BIA “so that the [BIA] may apply the law to the facts” of her

withholding claim and determine if the government met its rebuttal burden. Silaya v.

Mukasey, 524 F.3d 1066, 1072 (9th Cir. 2008) (internal citation and quotation marks

omitted).

      We deny Kaur’s petition for relief under CAT because she has not demonstrated

that it is more likely than not that she will be tortured upon her return to India. See,

e.g., Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir. 2006).

                                     Conclusion

      The petition for review as to the BIA’s dismissal of Kaur’s claims for

asylum and withholding of removal is GRANTED, and the case is REMANDED

for further proceedings in accordance with this opinion. The petition for review as



                                           5
to the BIA’s dismissal of Kaur’s claim for relief under the Convention Against

Torture is DENIED. Costs on appeal are awarded to the petitioner.

PETITION GRANTED IN PART, REMANDED and DENIED IN PART




                                         6
