[00:00:01] Speaker 01:
a good morning your honors may please the court i'm in the rot singh on behalf of petitioners that's in the kumar you are looking at we're asking uh... in this court to uh... grant this petition for review remand this case back to the board of immigration appeals can you speak up a little council appears to honor

[00:00:22] Speaker 01:
uh... your honor so as i was saying uh... we're asking for this court uh... to uh... grant a petition for review every man this case uh... to the board of immigration appeals uh... for three of the reasons you are number one your honor as the record reflects uh... this petition is harmless suffered in his native country of india does rise to the level of uh... past persecution uh... number two this petitioner does have

[00:00:50] Speaker 01:
a well-founded fear of future harm in his native country, home country of India.

[00:00:56] Speaker 01:
And lastly, Your Honor, it is not reasonable for this petitioner to relocate within India without subjecting himself to further harm at the hands of BJP members.

[00:01:11] Speaker 01:
as respect to past prosecution, Your Honors.

[00:01:16] Speaker 00:
Council?

[00:01:17] Speaker 00:
Yes, Your Honor.

[00:01:18] Speaker 00:
Council, let me ask you a question I'm curious about.

[00:01:21] Speaker 00:
In the record, there are repeated references to being beaten by sticks.

[00:01:27] Speaker 00:
And I don't know what that means.

[00:01:30] Speaker 00:
I mean, in the United States, you have what you call, police carry what they call a nightstick.

[00:01:36] Speaker 00:
And I know that in

[00:01:39] Speaker 00:
In India, they call those things, they're longer, but they call them batons.

[00:01:46] Speaker 00:
And is he referring to that or is he referring to like branches of trees, that kind of stick?

[00:01:55] Speaker 01:
uh... you are uh... i believe he he's referring to uh... more like a batons and not uh... the tree branches uh... and i believe the word state for possibly uh... lose translation of of whatever was used to you know i was being sent in in punjabi

[00:02:13] Speaker 01:
but we did not raise an argument so much or if i'm able to kind of bring that up to your list now but uh... uh... you know it looking at the record in the sessile it appears that he's likely referring to the calls and not at the three branches

[00:02:29] Speaker 03:
so as of the sea waters uh... counsel on the question of well-founded fear future persecution how do you deal with the fact that his brother and his father are still in india and they had more political involvement in the man party and they are uh... police according to the record unharmed

[00:02:48] Speaker 01:
you know i i don't believe other they have more political involvement uh... to the extent that they are involved uh... i don't think the record of testimony as far as i recall that uh... they have any sort of uh... what's the difference in their political involvement compared to your your client

[00:03:04] Speaker 01:
Yes, Your Honor, so my client was actually involved with the party.

[00:03:09] Speaker 01:
He worked and helped support the party's mission versus his brother and father.

[00:03:13] Speaker 01:
As far as my recollection is, Your Honor, from the record, and I was not on the council before the immigration court, but from the record, it appears that they have very minimal activity politically.

[00:03:25] Speaker 01:
My understanding is it's limited to just voting in elections.

[00:03:29] Speaker 01:
uh... the fact that they are harboring on earlier that was one of her contention was because they're not politically involved like uh... the petition himself and the fact that they're being uh... at at least harassed and and and being threatened uh... that that uh... that the suffering you know for the family members arises from the sole fact that this petitioner was in fact involved in political activities of the mom party and because of this petition's activities his family members who are not as heavily involved

[00:03:56] Speaker 01:
are also being uh... harassed and targeted and for the sole reason uh... you know uh... for asking about the whereabouts of this petition but is it true that he was only involved in the party for less than a year and what was he doing when he was tech wasn't just putting up posters once yes to honor i believe uh... but the record reflects that he was a very new member for the warm party uh...

[00:04:22] Speaker 01:
and he was i believe uh... hanging up posters trying to go to support his uh... uh... i'd like to spread the word around for meetings and whatever the party was doing at the time

[00:04:38] Speaker 01:
but okay so you know as as i think that that's the situation that you know that the mission is concluded you know and appears from the record as we as we read the record but there was uh... some sort of uh... an attempt to minimize this this position is a harm uh... the first attack which only resulted in a threat and petition was saved uh... fortunately by intervention from nearby uh... you know people who are from the nearby homes

[00:05:00] Speaker 01:
uh... and he was not physically hurt for personally in that instance so that was uh... but you know that was kind of seen abiding in june in the later adopted by the board of immigration appeals as uh... you know as as a mere harassment it was not even uh... you know uh... the threat itself was not taken seriously by the the by the mission uh... court and board of immigration appeals uh... but as those uh... petition testified uh... in immigration court that he was only saved

[00:05:27] Speaker 01:
because people started together you know came out of the uh... the nearby houses otherwise uh... the the dvd members did that they did this all the time they had uh... sticks of the tons you know it in their hands and that they were ready to make physical contact with for sure he was saved uh... and then as if they were leaving to do issue another threat to to this petitioner uh... you know whether leave his party or he will face serious consequences

[00:05:53] Speaker 03:
and that that was also uh... actually uh... was uh... you know uh... followed by the btb members when he was counsel can i ask that you know and i i will concede to you that night circuit president has been a little all over the map on what constitute past persecution which case i mean there's definitely cases that say this level of persecution is not past persecution of this level of harassment is not persecution there's some that might lean your way what what's is there one particular night circuit case that you rely on the most to describe

[00:06:23] Speaker 03:
That compels the fact that we have to find that it's past persecution.

[00:06:28] Speaker 01:
Yes, Your Honor, certainly.

[00:06:29] Speaker 01:
If I can just have one second, I'm looking through my notes.

[00:06:33] Speaker 01:
Your Honor, I believe I relied very heavily on Cowher v. Wilkinson matter, which was escaped.

[00:06:44] Speaker 02:
I'll give the- Did you say Aiden or Cowher?

[00:06:48] Speaker 01:
Excuse me, your honor, Cowher, K-A-U-R v. Wilkinson.

[00:06:52] Speaker 01:
Corwin?

[00:06:53] Speaker 02:
Okay, Your Honor, I can give the exact... You're talking about KAUR versus Wilkinson, a 2021 case?

[00:07:04] Speaker 01:
Yes, Your Honor, that's the one, yes.

[00:07:05] Speaker 01:
Yeah, I see it.

[00:07:06] Speaker 01:
Thank you.

[00:07:07] Speaker 01:
Yes, Your Honor.

[00:07:08] Speaker 01:
In that case, Your Honor, I believe the language pretty much kind of

[00:07:23] Speaker 01:
and there was one of the case where i believe that it was the ran was israeli is uh... where it was held you know like threats when they were they're coupled with physical violence uh... you know can rise to the level of past persecution and corvus wilkins and i believe uh... states that uh... you know threats alone

[00:07:39] Speaker 01:
can rise to the level of physical past persecution.

[00:07:44] Speaker 01:
Of course, Your Honor, you know, the threats have to be severe in nature, you know, and they're based on, you know, they're targeting the political activities or some of the protected grounds for asylum.

[00:07:57] Speaker 01:
And in this case, Your Honor, you know, this petition was attacked or, you know, was threatened because of his activities with the modern party.

[00:08:05] Speaker 03:
I have to say though, CORE has to do with allegations that she was threatened with rape.

[00:08:12] Speaker 03:
That feels very different than this case.

[00:08:15] Speaker 01:
Certainly, Your Honor.

[00:08:16] Speaker 01:
That case did deal with that, Your Honor, but a fair reading can also be, you know, we can also kind of

[00:08:27] Speaker 01:
define you know uh... so to speak in one of that uh... you know that the court was a little concern from highlights of the that you don't like how sweet it has to be i don't believe the court made the only rate that you know the threats of rape are severe enough but i mean that's another problem with you that that that's my problem with this is that there's cases all over the map i i can see them and

[00:08:47] Speaker 03:
I just don't know how we can say that the IJ was compelled to find that it was past persecution, given that there's no case, at least I see from the Ninth Circuit, saying that it is 100% past persecution.

[00:09:01] Speaker 01:
took you know i can't be even if you leave you know uh... threats aside you know this is a case where you don't have been ready to leave the uh... the reason why i was a threat issued and then there was physical uh... why does that the push had to suffer so even if you know uh... you know the case was going all over the map here that we don't know what the threat suffices to be passed persecution

[00:09:22] Speaker 01:
but you know uh... if this is the case where you know the issue is not like he was just issued a threat this is the case with threats were being issued you know uh... combined with uh... physical harm to the petitioner uh... so i believe you want to you know when we did court was a little concerned you know i believe that that that the highlights to the that you know the house with that has to be and then you know that's not the only measure you know uh... you know that analysis kind of you can focus on whether or not it was a physical harm and in this case you are the physical harm was there

[00:09:51] Speaker 02:
I don't know if you can see the clock or not, and I'm sorry, I should have inquired.

[00:09:54] Speaker 02:
You're down to about nine seconds, but I'll give you a minute and put that time back on the clock for rebuttal.

[00:10:01] Speaker 01:
Thank you, Your Honor.

[00:10:01] Speaker 01:
I do appreciate it.

[00:10:02] Speaker 01:
Thank you, Your Honors.

[00:10:05] Speaker 02:
Let's hear from the government.

[00:10:14] Speaker 04:
Good morning, your honors may please the court Anthony and already on behalf of the Attorney General, your honors respond has two main points today.

[00:10:20] Speaker 04:
First, the petition or failed to demonstrate the harm he suffered the past rose to the level of persecution and second petition or depth failed to demonstrate that he has a well founded fear of future persecution.

[00:10:29] Speaker 04:
both because the documentary evidence he submitted does not support the finding that similar situated man party members are systematically targeted by the BJP and because his brother and father who are also similarly situated have been able to remain in the same town in India since he's left.

[00:10:46] Speaker 00:
Let me ask you a few questions, counsel.

[00:10:49] Speaker 00:
Start with this.

[00:10:53] Speaker 00:
The IJ waffled a little bit, but said that they accepted Mr. Kumar's testimony as credible.

[00:11:01] Speaker 00:
And at 1.26 in the record, when he's talking about going into the police station with his dad and being able to file his claim of having been beaten by the BJP, he says that the senior officer said,

[00:11:22] Speaker 00:
Are you crazy?

[00:11:24] Speaker 00:
You're going to file a complaint against the government?

[00:11:29] Speaker 00:
And let's assume that we take that as established because it's been found credible.

[00:11:37] Speaker 00:
Isn't that a concession by an arm of the government that the BJP is the government, analogous to the CCP in China being the government of the PRC?

[00:11:51] Speaker 04:
Your honor, I think it's undisputed at this point that the BJP is in fact in control of certain segments of India and I believe at the national level as well in a coalition government.

[00:12:01] Speaker 04:
But what I think the difference is and the reason why below at the IJ hearing,

[00:12:06] Speaker 04:
both the DHS Council and Petitioner's Council, set the question of unable and unwillingness of the government to protect the petitioner aside.

[00:12:12] Speaker 04:
And that's why they narrowed the scope of the initial immigration hearing only to questions of level of harm in the past and not going forward in the future.

[00:12:21] Speaker 00:
Well, supposing you went from unwilling.

[00:12:23] Speaker 00:
There's an unpublished or non-presidential opinion from last year, Singh v. Garland,

[00:12:34] Speaker 00:
which looks at the man party and the BIA.

[00:12:41] Speaker 00:
And it says that the petitioner there argues that the BJP members who attacked him were government actors.

[00:12:56] Speaker 00:
And they send it back down for examination of that fact.

[00:13:02] Speaker 00:
And that's sort of,

[00:13:04] Speaker 00:
whole spectrum concerns me because if indeed it is the government that's doing these things, and by the way, wherever you're lying on that 2018,

[00:13:17] Speaker 00:
country report, I looked at the 2022 country report, which is significantly different.

[00:13:23] Speaker 00:
And then there's a 2023 Congressional Research Service report.

[00:13:29] Speaker 00:
We have a two, I think 2017 one thereabouts, but there's a 2023 one, which again is significantly different and looks at this issue.

[00:13:40] Speaker 00:
And both of them point to the BJP being the government

[00:13:46] Speaker 00:
and that the government is engaged in significant political persecution.

[00:13:51] Speaker 00:
And finally, we have the statements issued by the United States government and the Canadian government alleging that the Indian government has actually attempted to or did assassinate Sikh activists in Canada and attempt in the United States.

[00:14:10] Speaker 00:
And given that circumstance, why shouldn't we send it back down for reexamination?

[00:14:15] Speaker 04:
Well, Your Honor, I think if petitioner had those concerns that there had been such a significant change in circumstances, they would have had the opportunity to file a motion to reopen of the board based on those changed circumstances.

[00:14:26] Speaker 04:
To my knowledge, that has not happened here.

[00:14:28] Speaker 04:
And additionally, going to, if Your Honor's referring to the Singh v. Garland case from last year, 23 Westlaw 347-9565.

[00:14:35] Speaker 04:
I think that, yes?

[00:14:36] Speaker 00:
23 Westlaw 303-4607.

[00:14:45] Speaker 04:
I'm not aware of that particular unpublished decision of the Court, Your Honor.

[00:14:49] Speaker 04:
However, I would just say that, in particular, regardless of the actor who's doing the persecution, the threshold question is still, and one of the key elements of an asylum claim, is whether or not the harm has rise to the level of persecution.

[00:15:02] Speaker 04:
And here, I think, as the Court has acknowledged, implicitly at least, in cases that were cited by the Board and the IJ in this case,

[00:15:09] Speaker 04:
looking at hopes of the Ashcroft and to be Gonzalez court said that instances even of severe threats combined with a single beating have not rose risen to the level of past persecution we also said that death threats alone can constitute persecution and here there was a death threat what why is that distinguishable

[00:15:26] Speaker 04:
Well, Your Honor, this court, going back all the way to Liberty on it, INS said that threats standing alone constitute that type of past persecution only in a small number of cases and only when those threats are so menacing as to cause significant or actual harm.

[00:15:38] Speaker 04:
Some of the factors that the court has looked to determine whether that significant actual harm exists because of the threat alone.

[00:15:44] Speaker 04:
One of those factors is whether or not the person

[00:15:47] Speaker 04:
stays in their hometown before leaving their country or if they feel that overwhelming need to flee and hide in another area.

[00:15:53] Speaker 04:
Here there's no indication that petitioner between the initial threat and beginning of September through the time he left India in mid-November ever left his home.

[00:16:01] Speaker 04:
All the while he was being threatened, his brother and father also as similarly situated members

[00:16:08] Speaker 03:
OK, so I have a question on that.

[00:16:10] Speaker 03:
So what's the difference of political activity between the brother and the father and the petitioner that he's claiming that is distinguishable?

[00:16:19] Speaker 04:
Well, Your Honor, I think the record is not entirely clear.

[00:16:22] Speaker 04:
I think, as trust counsel said, he definitely engaged in hanging posters and going to a rally in another city.

[00:16:29] Speaker 04:
But the record also says that his father and brother were also threatened by the BJP for their man party.

[00:16:35] Speaker 04:
affiliations and when speaking about that specifically they said that he was or they were threatened because they were not supporting the BJP.

[00:16:44] Speaker 04:
It's the same type of threats that were made against the petitioner so it's unclear whether or not they were being threatened directly for their activities or just generally because BJP supporters threaten anyone who is not an active member of the BJP.

[00:16:55] Speaker 04:
Is there anything in the record that shows that the the the BJP assassinates low-level man party members No, your honor and specifically looking at the three country conditions evidence that reports that they submitted there I would look particularly to pages 298 297 of the record

[00:17:12] Speaker 04:
and 300 to 301 that's the Australian country conditions evidence report as well as another report about man party leadership both of those are looking at high level members of the beach or excuse me if the man party who have been arrested and charged for sedition and one leader who was

[00:17:27] Speaker 04:
only arrested once he had been charged, he fled the country, and then he came back to the country and was arrested.

[00:17:33] Speaker 04:
That does not demonstrate any systematic attempt to target low-level Man Party members, only high-level members, and moreover, page 298 to 299 of the record is the only explicit instance of a Man Party member being beaten to death, and there, by the own terms of the article, it was over a

[00:17:55] Speaker 04:
isolated incident of building a wall in a particular town.

[00:17:59] Speaker 04:
There's no indication that harm was caused on account of either his political or religious beliefs.

[00:18:04] Speaker 02:
Counsel, following up on the point of past persecution, you know, I think that as Judge Bumate points out,

[00:18:12] Speaker 02:
There are a number of cases going which way and to some extent that's necessary because these are highly fact intensive examinations to which we give the BIA deference, but we do have a string of cases specifically

[00:18:29] Speaker 02:
for people who are similarly situated like Mr. Kumar.

[00:18:33] Speaker 02:
They're from the Punjab region, targeted because of their affiliation with the Man Party, threatened, physically assaulted, and then forced to flee their homes.

[00:18:44] Speaker 02:
In each of those cases, we have reversed the BIA's finding that the harm didn't rise to the level of past persecution.

[00:18:53] Speaker 02:
So I think rather than looking at cases that are

[00:18:57] Speaker 02:
may be factually disconnected.

[00:19:00] Speaker 02:
Don't the cases, particularly for individuals from the Punjab situation, targeted because of their affiliation with the Man Party, aren't those cases more relevant?

[00:19:09] Speaker 02:
And I think counsel, your opposing counsel on the other side raised one of them, that's Kao versus Garland.

[00:19:16] Speaker 02:
There's also a case just from 2022, Singh versus Garland, very similarly situated.

[00:19:22] Speaker 02:
Sing V. Ashcroft dating back a little bit further, so 2004, that's probably different country reports, but there seems to be a consistent theme here.

[00:19:32] Speaker 02:
So how do you address that point?

[00:19:34] Speaker 04:
Well, Your Honor, I would say even in that line of cases, there is disagreement among different panels looking at different factual scenarios as to whether the harm rose level of persecution.

[00:19:43] Speaker 04:
I would point the court to a Sing V. Barr case from 2020.

[00:19:46] Speaker 04:
and that's 830 federal appendix at 223, they're very similar circumstances of a man party supporter being attacked by BJP members and a beating and threats, and the court found that did not rise to the level of past persecution.

[00:19:58] Speaker 04:
A little bit further back in 2019, Gil V. Barr, again.

[00:20:02] Speaker 02:
Sure, I mean, that's kind of my point, right?

[00:20:04] Speaker 02:
You can cite some cases, but certainly there are other cases that are factually similar, where we have said the record compels a finding of past persecution.

[00:20:13] Speaker 04:
yesterday i think uh... i think when looking again this is an individualized determination i think you have to

[00:20:22] Speaker 04:
look to the specific facts of each of these cases and determine which line of cases this falls more naturally into.

[00:20:28] Speaker 04:
And I think particularly looking at the recent Singh cases, there the level of harm was multiple beatings, there was imminent fleeing from the threats, and there was harm to other members of the family.

[00:20:39] Speaker 04:
And I think that differentiates those cases from this case.

[00:20:41] Speaker 04:
So there's a larger amount of harm there.

[00:20:44] Speaker 02:
Right.

[00:20:44] Speaker 02:
Before you sit down, let me make sure that my colleagues have an opportunity to have all of their questions addressed.

[00:20:49] Speaker 02:
All right.

[00:20:49] Speaker 02:
Thank you.

[00:20:56] Speaker 01:
uh... your honors for the cases of the idea side uh... cited a you know in his opinion especially that the whole suitcase uh... wholesome ashcroft and uh... i don't know how to pronounce the name i believe it's you who will says uh... gonzalez

[00:21:14] Speaker 01:
I address those cases and how they're distinguished in my brief from page 13 to 15.

[00:21:19] Speaker 01:
I don't want to spend my time arguing the same points.

[00:21:22] Speaker 01:
I just want to address two specific points here.

[00:21:24] Speaker 01:
One is the systemic prosecution or persecution of members of the modern party.

[00:21:31] Speaker 01:
The problem with finding evidence of

[00:21:36] Speaker 01:
of uh... six systemic persecution is is really hard special for local members uh... they are they are hard to find police reports as this case has shown uh... police often does it help to have the police find a police reporter if if there are other cases like that we would have one indication that how the the low-level members of the persecuted but the government itself refuses to help people and that's one thing you know uh... a documentary evidence that's not available to show and i see my time is up your honor but if i can continue ahead and finish your answer

[00:22:06] Speaker 01:
Thank you.

[00:22:07] Speaker 01:
So the difficulty in finding a persecution for law members, there's no media attention.

[00:22:12] Speaker 01:
The record is hard to find because agencies that are tasked to help people refuses to help people.

[00:22:19] Speaker 01:
So it's like a circular argument to make, so to speak, that I will harm you, but I'm also going to take away the documentary evidence to show the world that the harm does not exist in the first place.

[00:22:31] Speaker 01:
All right.

[00:22:32] Speaker 01:
Thank you, counsel.

[00:22:34] Speaker 01:
Thank you.

[00:22:34] Speaker 02:
Thank you both sides for your argument this morning.

[00:22:36] Speaker 02:
The matter is submitted and we're in recess until tomorrow morning.