                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 08 2011

                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

RAJINDER KAUR,                                   No. 07-72474

              Petitioner,                        Agency No. A76-844-696

  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 11, 2011
                             San Francisco, California

Before: HUG and PAEZ, Circuit Judges, and WATSON,** District Judge.

       Rajinder Kaur (“Kaur”), a native and citizen of India, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an

immigration judge’s (“IJ”) decision denying her application for asylum and

withholding of removal. We have jurisdiction under 8 U.S.C. § 1252, and review

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Michael H. Watson, United States District Judge for
the Southern District of Ohio, sitting by designation.
the agency’s factual findings for substantial evidence and its legal conclusions de

novo. Viridiana v. Holder, 630 F.3d 942, 945 (9th Cir. 2011). We grant the

petition and remand.

      We previously rejected the IJ’s adverse credibility finding and concluded

that Kaur demonstrated she suffered past persecution when she was detained and

raped by officers of the Punjab police. Kaur v. Gonzales, 128 F. App’x 567, 571

(9th Cir. 2005). We remanded the matter to the agency to determine whether

evidence of changed country conditions rebutted the presumption of a well-

founded fear of future persecution and the clear probability that Kaur’s life or

freedom would be in danger if she returned to India. Id. On remand, the IJ

determined that the government met its burden and rebutted the presumption.

      The IJ’s decision rests on three erroneous findings. First, the IJ misapplied

the law when she found that Kaur’s well-founded fear of future persecution was

undercut by the continued presence of Kaur’s husband in India. That evidence

does not rebut the presumption because Kaur’s husband has remained in hiding

since he and Kaur were persecuted by the Punjab police. See Toure v. Attorney

Gen., 443 F.3d 310, 319 (3d Cir. 2006) (holding that where similarly situated

family members are in hiding, “a lack of continued persecution merely reflects the

family members’ ability to avoid detection, not the Government’s desire, or lack


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thereof, to further persecute them”). Second, relying on country reports, the IJ

improperly concluded that the Punjab police would not pursue and persecute Kaur

because she was not a high-profile militant. Kaur and her husband were persecuted

because Kaur’s husband, who worked for the Punjab police, refused to participate

in human rights abuses and deserted his position. See Barraza Rivera v. INS, 913

F.2d 1443, 1451 (9th Cir. 1990) (holding that punishment for “refusing to comply

with military orders . . . because they violate standards of human decency” can

itself amount to persecution). The country reports do not address whether, in those

specific circumstances, the Punjab police would continue to target Kaur for

persecution. Third, the IJ improperly considered the passage of time since Kaur

was persecuted as an additional factor in her decision because the length of time

was largely due to the instant litigation. Salazar-Paucar v. INS, 281 F.3d 1069,

1077 (9th Cir. 2002).

      In sum, the IJ’s decision is based on erroneous conclusions of law and is not

supported by substantial evidence. The government failed to rebut the

presumption of a reasonable fear of future persecution and the clear probability that

Kaur’s life or freedom would be threatened if she returned to India. See 8 C.F.R.

§§ 208.13(b)(1), 208.16(b)(1)(i). Accordingly, we grant the petition and remand




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so the Attorney General can exercise his discretion regarding asylum and grant

Kaur withholding of removal.

      PETITION FOR REVIEW GRANTED; REMANDED.




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