Harminder Pal Kaur v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HARMINDER PAL KAUR,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 17-70925
Agency No. A073-413-899
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 14, 2022**
San Francisco, California
Before: S.R. THOMAS and BENNETT, Circuit Judges, and MOSKOWITZ,***
District Judge.
Dissent by Judge BENNETT.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
FILED
JAN 10 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Petitioner Harminder Kaur, a native and citizen of India, petitions for review
of the Board of Immigration Appeals’ (“BIA”) denial of her second motion to reopen
her claims for asylum, withholding of removal, and Convention Against Torture
(“CAT”) relief. We have jurisdiction to review under 8 U.S.C. § 1252(a)(1), and we
grant the petition and reverse and remand in light of Kaur v. Garland, 2 F.4th 823
(9th Cir. 2021). Because the parties are familiar with the factual and procedural
history, we need not recount it here.
We review the denial of a motion to reopen for abuse of discretion.
Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). Beyond 90 days, an alien
seeking to reopen must show material changed country circumstances and a prima
facie basis for the relief sought. Id. Petitioner argues that her motion to reopen
should have been granted based on changed circumstances, that is, a death threat she
received from her brother-in-law and increased violence against women in India.
Petitioner alleged that her brother-in-law assaulted her husband while he was visiting
India, and threatened to kill her if she returned, referring to her as a “whore” and the
“root of all [their] problems.”
In Kaur, we held that the petitioner “present[ed] material changed country
circumstances” based primarily on death threats she received from her in-laws and
the increase in violence against women in India. See 2 F.4th at 830–33. Petitioner’s
claim is similar. She received a death threat from her brother-in-law, and Kaur

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supports her argument that violence against women has increased in India.
The BIA decided Petitioner’s motion without the guidance we provided in
Kaur. Here, Petitioner has shown materially changed country circumstances and a
nexus to a protected group, sufficient to establish a prima facie case for asylum and
withholding. “To establish a claim for asylum, [petitioner] need only show that the
protected ground is ‘one central reason’ for the persecution.” Id. As in Kaur, since
the Petitioner satisfies the stricter “one central reason” asylum nexus standard, she
necessarily satisfies the lesser, “a reason,” standard for withholding of removal as
well. See Kaur, 2 F.4th at 833 n. 7. Petitioner’s arranged marriage, and her status
as a dowry bride and daughter-in-law in a country with increased violence against
both groups, is a central reason for the death threat she received. Thus, the BIA
should consider Petitioner’s asylum and withholding claims anew.
Our prior decision affirming the denial of Petitioner’s first motion to reopen,
Kaur v. Lynch, 633 F. App’x 901 (9th Cir. 2015), is not controlling here. There we
held that Petitioner’s new evidence only “point[ed] to generalized conditions” that
were “not material to her claim.” Id. at 903. Here, Petitioner relies on a death threat
specific to her, which is a significant factor under our recent decision in Kaur. See
2 F.4th at 830–33. Further, Kaur provides much support for Petitioner’s argument
that violence against women in India has increased.
The BIA did not err in summarily denying Petitioner’s CAT claim without

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explanation. The BIA’s decision “carries the presumption that the Board properly and
thoroughly considered all issues, arguments, and claims raised or presented by the
parties on appeal or in a motion that were deemed appropriate to the disposition of the
appeal or motion, whether or not specifically mentioned in the decision.” 8 C.F.R. §
1003.1(e)(9). Accordingly, the BIA’s summary denial of “related forms of relief,”
including Petitioner’s CAT claim, was not improper. However, the standard for
deciding whether Petitioner had established a prima facie case for protection under CAT
requires only that Petitioner show a “reasonable likelihood that the statutory
requirements for relief have been satisfied” to reopen a case. See Ordonez v. I.N.S, 345
F.3d 778, 785 (9th Cir. 2003) (citation omitted). As we held in Kaur, the new evidence
discussed above merits also reopening Petitioner’s CAT claim. 2 F.4th at 836–837.
Thus, the BIA should consider Petitioner’s motion for CAT relief in light of Kaur as
well.
We grant the petition, reverse the denial of the motion to reopen and remand for
further proceedings on Petitioner’s claims for relief.
PETITION GRANTED. REVERSED AND REMANDED

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Kaur v. Garland, No. 17-70925
BENNETT, Circuit Judge, dissenting:
I respectfully dissent because the Board of Immigration Appeals (“BIA”) did
not abuse its discretion in denying Petitioner’s motion to reopen. “The BIA abuses
its discretion when it acts arbitrarily, irrationally, or contrary to the law.” Martinez
v. Barr, 941 F.3d 907, 921 (9th Cir. 2019). In applying that standard, “[w]e review
legal questions de novo and factual findings for substantial evidence.” Kaur v.
Garland, 2 F.4th 823, 829 (9th Cir. 2021). And Kaur notwithstanding, substantial
evidence supports the BIA’s decision that Petitioner has not presented changed
country conditions sufficient to require that the BIA exercise its discretion to
reopen her immigration proceedings.
The substantial evidence standard is highly deferential. We must uphold the
BIA’s conclusions of fact “unless ‘any reasonable adjudicator’ would be
compelled to conclude to the contrary.” Kamalyan v. Holder, 620 F.3d 1054, 1057
(9th Cir. 2010) (quoting 8 U.S.C. § 1252(b)(4)(B)).
In Kaur, we corrected the BIA’s legal error in concluding that involuntary
changes in a Petitioner’s personal circumstances could never support a finding of
changed country conditions for purposes of a motion to reopen. Kaur, 2 F.4th at
830. The panel held that “[i]n combination, Kaur’s husband’s death in India, her
resulting new status as a widow, her in-laws’ threats, and the increased violence in
FILED
JAN 10 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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India against women generally and widows in particular present material changed
country circumstances.” Id. at 833.
Here, the BIA did not commit the same legal error. Rather than rejecting
Petitioner’s evidence about involuntary changes in her personal circumstances, the
BIA assessed the facts in this case and concluded that: “[t]he evidence submitted
by [Petitioner] is insufficient to show changes in conditions or circumstances in
India material to [her] claims for asylum and related forms of relief.” The BIA
specifically addressed Petitioner’s evidence of death threats and disparaging
remarks from her brother-in-law as well as generalized evidence she submitted
about violence against women in India, including evidence related to dowry-based
violence. The BIA applied the legal standard clarified by Kaur but reached a
different result after weighing the facts of this case.
Substantial evidence supports the BIA’s factual finding that Petitioner’s
evidence is insufficient to constitute “changed country conditions” for purposes of
reopening her immigration proceedings. Unlike in Kaur, Petitioner here received
indirect death threats from her brother-in-law in the context of a larger family
dispute about inheritance. C.f. id. at 828–29 (noting that Kaur received death
threats from her in-laws directly related to her status as a widow). Although
Petitioner asserted for the first time in her supplemental brief that the threat from
her brother-in-law was tied to the perceived inadequacy of her dowry payment,

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there is no evidence in the record corroborating that view. Thus, the petitioner in
Kaur demonstrated more severe threats and a stronger nexus between the threats
and her status as a widow. Here, Petitioner submitted generalized evidence about
dowry-based violence in India but has not established a nexus between that
evidence and the threats she received.
Kaur and this case are simply not materially identical, and to treat them as
such is contrary to the basic guiding principle that we must judge each case on its
facts, according to the law. See, e.g., Martinez, 941 F.3d at 922 (“Of course, each
case turns on its own facts and circumstances.”). Kaur held that specific death
threats relating to changed personal circumstances could support a finding of
changed country conditions, not that they must. 2 F.4th at 830–34. Taking Kaur
fully into account, we are required to deny the petition in light of our highly
deferential standards for reviewing a denial of a motion to reopen. Thus, I
respectfully dissent.

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