Darshan Kaur; v. Immigration and Naturalization Service

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 Honorable Thomas S. Zilly, Senior United States District Judge***
for the Western District of Washington, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARSHAN KAUR; et al.,
Petitioners,
v.
IMMIGRATION AND
NATURALIZATION SERVICE,
Respondent.
No. 01-71948
Agency Nos. A072-401-927
A072-401-928
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 12, 2010**
San Francisco, California
Before: HALL and McKEOWN, Circuit Judges, and ZILLY, Senior District***
Judge.
FILED
MAR 18 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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An immigration judge (“IJ”) denied Petitioners’ applications for asylum and
withholding of removal. The Board of Immigration Appeals (“BIA”) affirmed.
This Court has jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition
for review.
Lead Petitioner Darshan Kaur alleges that her politically active brother was
arrested and killed by Punjabi police officers, and that the police threatened to
harm her and her family once they had alleged misconduct. Because of these
threats and additional threats by Sikh militants, Petitioners claim to fear
persecution if they return to India.
As a preliminary matter, the BIA did not deny Petitioners due process by
concluding that they had not established past persecution. The IJ expressly found
that Kaur had not sufficiently established past persecution or a well-founded fear
of persecution, and the BIA affirmed on both of those grounds. A failure to
establish past persecution was therefore one basis for the denial of Petitioners’
claims, and they knew or should have known that the BIA could affirm, at least in
part, on that ground.
Substantial evidence supports the BIA’s determination that Petitioners had
not suffered past persecution. Kaur testified that her family was “harassed” by
police officers on three or four occasions in order to convince them to withdraw
complaints over her brother’s death. She also testified that Sikh militants

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attempted to recruit her family to avenge her brother’s death and that the militants
threatened harm if they refused. Such threats by themselves do not compel a
finding of past persecution. Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000).
Substantial evidence also supports the BIA’s determination that Petitioners
did not have a well-founded fear of persecution by the police or Sikh militants on
account of political opinion. Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997).
Kaur’s brother was allegedly arrested because he was suspected of killing a police
officer and killed for trying to escape, and the police allegedly harassed Kaur’s
family following the lodging of a complaint over her brother’s death. Although
Kaur testified that she was a member of the All India Sikh Student Federation,
there is no evidence that the police were aware of her political activity or targeted
her for any reason other than to protect their own reputation. There is also no
evidence that the Sikh militants targeted Kaur’s family for any reason other than to
further their own agenda. See INS v. Elias-Zacarias, 502 U.S. 478, 482-483
(1992).
Although Kaur’s testimony was deemed credible, it was not sufficiently
detailed or persuasive to compel a finding of a well-founded fear of future
persecution. See Ladha v. INS, 215 F.3d 889, 901 n.12 (9th Cir. 2000)
(“[S]ometimes the facts, credibly testified to and taken therefore to be true, will not
cover all elements of the asylum or withholding claim needed to justify relief.”).

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Her description of the number and nature of the threats lodged against her was
extremely vague, and her asylum application is riddled with inconsistencies.
Petitioners claim a subjective fear of arrest and torture, but there is little evidence
that such fear is objectively reasonable.
Lastly, we decline to remand to the BIA to consider Petitioners’ eligibility
for relief under the Convention Against Torture (“CAT”). After the IJ issued its
decision, but before the BIA ruled on Petitioners’ appeal, the United States
implemented Article 3 of CAT. See Pub. L. No. 105-277, Div. G., Title XXII, §
2242, 112 Stat. 2681, 2681-822 (1998). However, Petitioners never filed a motion
to reopen with the BIA or the IJ to consider their CAT claim. Khourassany v. INS,
208 F.3d 1096, 1100 (9th Cir. 2000).
For the foregoing reasons, we DENY the petition for review.

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