Baljinder Kaur v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 7 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

____________________________________
BALJINDER KAUR No. 12-72838
and GURBIR SINGH,
Agency Nos. A095-399-055
Petitioners, A095-399-056

v. MEMORANDUM*

JEFFERSON B. SESSIONS, III,
United States Attorney General,

Respondent.
____________________________________

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

Argued and Submitted July 14, 2017
San Francisco, California

Before: BEA and N.R. SMITH, Circuit Judges, and ROBRENO,** District Judge.

Baljinder Kaur (“Kaur”) and Gurbir Singh (together “Petitioners”) have

petitioned for review of the August 13, 2012, decision of the Board of Immigration

Appeals (“BIA”) denying their motion to reopen their removal proceedings based

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Eduardo C. Robreno, United States District Court Judge for
the Eastern District of Pennsylvania, sitting by designation.
on changed circumstances in India. Petitioners claim that these new circumstances

entitle them to asylum, withholding of removal, and protection under the

Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252(a). We

grant the petition for review.

After the Department of Homeland Security initiated removal proceedings

against Petitioners for overstaying their travel visas in 2002, Petitioners filed an

application for asylum based upon their claim that they would face persecution if

returned to India because of their political and religious beliefs, including their

families’ belief that there should be an independent Sikh state in India called

Khalistan. In 2005, the immigration judge (“IJ”) denied Petitioners’ application.

The IJ concluded that several of Kaur’s key assertions, including details regarding

the death of her father in 1991 and of her three arrests between 1997 and 1999,

lacked credibility because of the inconsistencies in her statements.

On February 17, 2012, Petitioners filed the instant motion to reopen with the

BIA based on, inter alia, changed family circumstances. In support of the motion,

Petitioners submitted a signed statement from Kaur and an affidavit from her sister,

Balraj Kaur (“Balraj”), which provided that in 2011 the police raided a family

ceremony held in India, sought Kaur, held Balraj in custody, and released Balraj

only after warning her that she must tell the police if Kaur returned to India.

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According to Kaur’s and Balraj’s statements, the authorities also told Balraj that

they would not release Kaur once apprehended.

In the August 13, 2012, decision denying the motion to reopen, the BIA

concluded that Petitioners had

not submitted persuasive, material evidence of changed circumstances
in India. While the Ninth Circuit has held, in a different factual context,
that the Board “is required to accept as true the facts stated in [an]
affidavit unless they are inherently unbelievable[,]” Najmabadi v.
Holder, 597 F.3d 983, 990 (9th Cir. 2010) (citation omitted), in this
case, the respondents have previously presented a Khalistani Sikh-
based claim found not to be truthful. And, considering the totality of
evidence before us, we do not accept as true the most recent variant of
the professed factual claims the respondents now present.

The BIA also discounted Balraj’s affidavit “because it is a copy, from an interested

witness, not accompanied with an envelope, and speculative.”

As the BIA acknowledged, for the purposes of the motion to reopen, it was

required to accept as true the facts alleged in Kaur’s and Balraj’s statements, unless

they were found to be inherently unbelievable. Najmabadi, 597 F.3d at 990. The

Government does not suggest that these statements were inherently unbelievable.

The BIA also did not find the statements to be inherently unbelievable. Instead, it

refused to accept the new facts regarding the raid on the family gathering as true

because the IJ had previously found incredible Kaur’s statements regarding past

related persecution.

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We review the BIA’s denial of a motion to reopen for abuse of discretion

and should leave its decision undisturbed unless it is arbitrary, irrational, or

contrary to law. Yan Rong Zhao v. Holder, 728 F.3d 1144, 1147 (9th Cir. 2013).

The BIA may consider evidence developed at a prior hearing and is “free to

interpret that evidence free from inferences in favor of the moving party.” Limsico

v. INS, 951 F.2d 210, 213 (9th Cir. 1991) (internal quotation marks omitted). The

BIA must also consider the evidence in its entirety. Yan Rong Zhao, 728 F.3d at

1149. However, we recently reiterated that “‘credibility determinations on motions

to reopen are inappropriate.’” Shouchen Yang v. Lynch, 822 F.3d 504, 508 (9th Cir.

2016) (quoting Bhasin v. Gonzales, 423 F.3d 977, 986 (9th Cir. 2005)).

The BIA went beyond the interpretation of evidence developed at the prior

hearing and made improper credibility determinations regarding the new facts

alleged by Kaur and Balraj, none of which were ever before the IJ. The BIA was

required to accept the new facts as true and should not have extended the IJ’s prior

credibility determination beyond the facts that had been before him. Moreover, the

BIA had no grounds to impute the past credibility finding of Kaur to Balraj, as the

IJ never had the opportunity to inspect or determine the credibility of Balraj’s

affidavit.

In finding that these new assertions were merely variants of a previously

rejected “Khalistani Sikh-based claim,” the BIA effectively blocked any related

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future claim made by Kaur, regardless of the evidence she submitted. In this way,

this case resembles the facts in Shouchen Yang where the BIA erroneously

concluded that, because the IJ had found that the petitioner testified falsely as to

one claim, the BIA could find that he was incredible regarding any other claim. Id.

We further conclude that the BIA’s other reasons for rejecting Balraj’s

affidavit are legally insufficient. That Kaur submitted a copy of her sister’s

affidavit is immaterial. See Yan Rong Zhao, 728 F.3d at 1149 (providing that “the

BIA instructs petitioners not to file original documents”). That Balraj was an

interested witness also should not have factored into the BIA’s decision as it is

required to accept the facts in the affidavit as true unless inherently unbelievable.

Najmabadi, 597 F.3d at 990. Whether the affiant is an interested witness is not part

of this equation. There was no support for the BIA’s assertion that Balraj’s

affidavit was speculative as she stated details about facts that she allegedly

witnessed. Finally, it is unclear why the fact that the affidavit was not in an

envelope would have any effect on the BIA’s analysis.

The BIA abused its discretion by making new credibility determinations

based on a previous finding by the IJ. It also failed to provide permissible reasons

for otherwise rejecting Balraj’s affidavit. We grant the petition for review and

remand for further proceedings consistent with this disposition.

PETITION FOR REVIEW GRANTED; REMANDED.