Balwinder Kaur v. ERIC H. HOLDER, Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BALWINDER KAUR,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-72020
Agency No. A097-581-479
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 24, 2013**
Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Balwinder Kaur, a native and citizen of India, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an
immigration judge’s decision denying her application for asylum and withholding
of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for
FILED
SEP 30 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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substantial evidence factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-
85 (9th Cir. 2006). We deny in part and grant in part the petition for review, and
remand for further proceedings.
Substantial evidence supports the agency’s determination that, even though
Kaur established past persecution on account of an imputed political opinion, her
presumption of a well-founded fear of future persecution was rebutted by evidence
of changed country conditions in India. See 8 C.F.R. § 1208.13(b)(1)(i)(A); see
also Gonzales-Hernandez v. Ashcroft, 336 F.3d 995, 999-1000 (9th Cir. 2003)
(noting that BIA has expertise to construe country reports and determine whether
country conditions have changed sufficiently to rebut a presumption of future
persecution). The agency rationally construed the evidence in the record and
provided a sufficiently individualized analysis of Kaur’s future fear. Id.
Because Kaur has not established a well-founded fear of persecution, she
necessarily cannot meet the more stringent standard for withholding of removal.
See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).
However, in assessing humanitarian asylum, the agency failed to address
Kaur’s argument that she may be eligible due to “other serious harm” under 8
C.F.R. § 1208.13(b)(1)(iii)(B). Thus, we remand for further proceedings on this
issue. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam); Hanna v.

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Keisler, 506 F.3d 933, 939 (9th Cir. 2007) (remanding for further proceedings
where agency did not consider both statutory provisions for humanitarian asylum);
see also Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005) (BIA is not
free to ignore arguments made by applicant).
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part, GRANTED in part;
REMANDED.

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