Sunil Kumar v. William Barr

FILED NOT FOR PUBLICATION MAY 16 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SUNIL KUMAR, No. 16-71890 Petitioner, Agency No. A201-294-534 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted May 14, 2019** San Francisco, California Before: THOMAS, Chief Judge, and McKEOWN and GOULD, Circuit Judges. Sunil Kumar, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (BIA) order dismissing his appeal from an immigration judge’s (IJ) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We review factual * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). findings for substantial evidence. Ming Dai v. Sessions, 884 F.3d 858, 866 (9th Cir. 2018). Because the parties are familiar with the history of this case, we need not recount it here. I Substantial evidence does not support the agency’s denial of asylum and withholding of removal. An applicant’s testimony alone is sufficient to establish eligibility for asylum and withholding of removal if it is credible, persuasive, and refers to specific facts sufficient to establish eligibility. See 8 U.S.C. §§ 1158(b)(1)(B)(ii), 1229a(c)(4)(B). Neither the IJ nor the BIA made an explicit adverse credibility determination, so we are required to treat Kumar’s testimony as credible. See Ming Dai, 884 F.3d at 870. Kumar testified that he was attacked on three separate occasions by members of the Sikh community because of his religious activities with the Dera Sach Khand Ballan, he suffered broken ankles and lost consciousness in the most severe beating, he received anonymous calls from individuals who threatened to kill him if he did not stop his religious activities, and he reported each incident to the police to no avail. This testimony is sufficient to establish his eligibility for asylum and withholding of removal. See Bringas- Rodriguez v. Sessions, 850 F.3d 1051, 1066 (9th Cir. 2017) (“reporting and police 2 inaction is one means of establishing government . . . unwillingness to control the attackers”); Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th Cir. 2004) (“threats may be compelling evidence of past persecution”); Chand v. INS, 222 F.3d 1066, 1073–75 (9th Cir. 2000) (cumulative effect of three instances of violence and harassment compel finding of past persecution). Because we must “treat [Kumar’s] testimony as credible and his testimony clearly set out sufficient facts to establish past persecution” we “treat the BIA’s general statement about [Kumar’s’] burden of proof as relating to the only remaining requirement for testimony to carry that burden: persuasiveness.” Ming Dai, 884 F.3d at 871. The BIA held that Kumar’s testimony was unpersuasive, noting his “vague, and at times, inconsistent testimony.” Vagueness and inconsistency, however, are inquiries relevant to the ...

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