Jamuna Gurung v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION MAY 20 2014

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

FOR THE NINTH CIRCUIT

JAMUNA GURUNG, No. 11-70412

Petitioner, Agency No. A088-487-654

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

Respondent.

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

Submitted January 22, 2014**

Before: D.W. NELSON, LEAVY, and THOMAS, Circuit Judges.

Jamuna Gurung (“Jamuna”), a native and citizen of Nepal, petitions for

review of the Board of Immigration Appeals’ (“BIA”) summary affirmance of an

immigration judge’s (“IJ”) denial of her applications for asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”). We grant

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the petition for review and remand for further proceedings. Because the parties are

familiar with the history of the case, we need not recount it here.

Where, as here, the BIA streamlines an appeal under 8 C.F.R. §

1003.1(e)(4), “the IJ’s decision becomes the BIA’s decision and we evaluate the

IJ’s decision as we would that of the Board.” Lanza v. Ashcroft, 389 F.3d 917, 925

(9th Cir. 2004) (internal quotation marks omitted). “The denial of asylum is

reviewed for substantial evidence. The denial must be upheld unless the applicant

can show that the evidence . . . presented was so compelling that no reasonable

factfinder could fail to find the requisite fear of persecution.” Camposeco-Montejo

v. Ashcroft, 384 F.3d 814, 818 (9th Cir. 2004) (internal citation and quotation

marks omitted).

Under 8 U.S.C. § 1158(b), the Attorney General has the discretion to grant

asylum to “refugees.” INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n.5 (1987). A

“refugee” is a person unable or unwilling to return to her country “because of

persecution or a well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion.” 8

U.S.C. § 1101(a)(42)(A).

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 I

Under the REAL ID Act, an applicant must establish that a protected ground

“was or will be at least one central reason for persecuting the applicant.” 8 U.S.C.

§ 1158(b)(1)(B)(i) (emphasis added). “[A]n asylum applicant need not prove that a

protected ground was the only central reason for the persecution she suffered. . . .

[and] an applicant need not prove that a protected ground was the most important

reason why the persecution occurred.” Parussimova v. Mukasey, 555 F.3d 734,

740 (9th Cir. 2008). Yet, the protected ground “cannot be incidental, tangential,

superficial, or subordinate to another reason for harm.” Id. at 741 (internal

quotation marks omitted).

Here, the record reveals at least three possible reasons for the Maoists’

threats toward and attacks on Jamuna: (1) financial gain; (2) her membership in the

particular social group consisting of her family; and (3) her actual or imputed

political opinion opposing the Maoists. The IJ found that the Maoists’ only central

motivation was financial gain. We disagree.

The record as a whole, which includes Jamuna’s credible testimony and

sworn declaration and her father’s asylum application, compels the conclusion that

Jamuna’s membership in the social group of her family was also a central reason

for her persecution. The record contains evidence of Jamuna’s father’s political

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prominence; his abduction by the Maoists and their subsequent threats against him

and his family; Jamuna’s return to Nepal within eight months of her father’s escape

to care for her family in his absence; and the Maoists’ subsequent knowledge of

her father’s whereabouts. Most compelling, the Maoists’ asked for Jamuna by

name, questioned her about her father during their first three confrontations, and

told her, “we know that your father was the political member and he’s in America

taking our name to survive in life.” The other members of Jamuna’s family were

not harmed for a period of time before they were granted derivative asylum status

in the United States. Yet, this fact does not alter our conclusion that Jamuna’s

father motivated the Moaists to attack her where the record reveals that Jamuna

was politically involved in the same activities as her father and she took over his

role in her family, which distinguishes her from her mother and her younger

siblings.

II

Persecution is defined generally as “the infliction of suffering or harm

upon those who differ . . . in a way regarded as offensive.” Prasad v. INS, 47 F.3d

336, 339 (9th Cir. 1995) (internal quotations and citation omitted). Persecution

covers a range of harms, and “[t]he determination that actions rise to the level of

persecution is very fact-dependent.” Cordon-Garcia v. INS, 204 F.3d 985, 991

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(9th Cir. 2000). The IJ found that Jamuna did not experience past persecution. We

disagree.

Substantial evidence compels the conclusion that the harm Jamuna

experienced constitutes past persecution. After abducting Jamuna’s father, the

Maoists, a group capable of and willing to carry out their threats, threatened his

entire family. The Maoists then specifically sought out Jamuna by name, forced

themselves into her home, pushed her, slapped her, kicked her, and demanded that

she pay them 200,000 rupees or that she become their “member.” They threatened

her and her family twice on the phone. They then attacked her at her place of

work, wrecked her office, stole her money, and cut her with a knife. The Maoists

left a note on Jamuna’s office door warning her not to return or she would lose her

life, and they continued searching for her after she fled Nepal.

III

Jamuna is also eligible for asylum based on a well-founded fear of future

persecution. We disagree with the IJ’s conclusion that Jamuna failed to establish a

well-founded fear. A well-founded fear “must be both subjectively genuine and

objectively reasonable.” Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir. 2007).

Substantial evidence compels the conclusion that Jamuna satisfied the subjective

component by credibly testifying that she genuinely fears persecution and that she

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established the objective component by adducing credible and specific evidence in

the record that supports her reasonable fear of persecution. Id.

The record shows the Maoists specifically targeted Jamuna when they asked

for her by name, sought her out at both her home and her office, knew personal

facts about her and her father, and continued to demonstrate their interest in her

even after she fled Nepal. See, e.g., Marcos v. Gonzales, 410 F.3d 1112, 1119 (9th

Cir. 2005) (applicant demonstrated well-founded fear based on credible death

threats directed at him specifically). Also, the acts of violence toward Jamuna’s

father establish Jamuna’s well-founded fear of persecution because the Maoists

threatened, attacked, and demanded money from Jamuna while verbally linking her

to her father. Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th Cir. 1991) (“acts

of violence against a petitioner’s . . . family members may establish a well-founded

fear . . . [if] this violence create[s] a pattern of persecution closely tied to the

petitioner” (citation omitted)).

PETITION GRANTED; REMANDED.

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