Sharma v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RATNESH SHARMA, 

Petitioner,

No. 04-76624

v.

 Agency No.

ERIC H. HOLDER JR., Attorney A079-566-588

General,

Respondent.



RATNESH SHARMA, 

Petitioner,

No. 05-72456

v.

 Agency No.

ERIC H. HOLDER JR., Attorney A079-566-588

General,

Respondent.



RATNESH SHARMA, 

Petitioner, No. 09-71104

v.

 Agency No.

A079-566-588

ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

September 14, 2010—San Francisco, California

Filed February 1, 2011

1989

1990 SHARMA v. HOLDER

Before: J. Clifford Wallace and Sidney R. Thomas,

Circuit Judges, and Richard Mills, Senior District Judge.*

Opinion by Judge Wallace;

Partial Concurrence and Partial Dissent by Judge Thomas

*The Honorable Richard Mills, Senior United States District Judge for

the Central District of Illinois, sitting by designation.

1992 SHARMA v. HOLDER

COUNSEL

Hardeep Singh Rai, San Francisco, California, for the

petitioner-appellant.

Joshua Michael Levin, Senior Trial Attorney; Siu P. Wong,

Trial Attorney; Kathryn Deangelis, Attorney; Kristina Rencic

Sracic, Trial Attorney, Department of Justice, Washington,

D.C., for the respondent-appellee.

OPINION

WALLACE, Senior Circuit Judge:

Ratnesh Sharma petitions for review of the dismissal of his

appeal by the Board of Immigration Appeals (Board). The

SHARMA v. HOLDER 1993

Board reviewed favorably the decision of the immigration

judge (IJ), which denied Sharma’s application for asylum,

withholding of deportation, and protection under the Conven-

tion Against Torture (CAT). The Board then denied Sharma’s

subsequent motion to reopen his removal proceedings. We

have jurisdiction to review orders of removal and denials of

motions for reopening pursuant to 8 U.S.C. § 1252. We deny

review of the petition.

I.

Sharma, a native of India, entered the United States in 2001

and overstayed his visa. He filed an asylum application and

was placed in removal proceedings. His asylum application

was heard by an IJ. The facts are essentially taken from his

testimony before the IJ.

According to Sharma, the police stationed where he lived

in India persecuted him because they thought he was a politi-

cal operative working against the government’s interests.

Sharma is a Hindu. His trouble began when his father, a pro-

fessor at a university in India, started research for a book

about a Sikh separatist movement. Because Sharma’s father

planned to detail police misconduct in the book, the police

viewed his effort as anti-government. Sharma began assisting

his father with the book in 1999. Sharma’s help was mostly

clerical: he entered interview data in a computer, and per-

formed some photocopying.

In September 1999, shortly after beginning to help his

father, Sharma was at his father’s home when the police

entered. They stated that they were looking for Sharma’s

father and asked Sharma where he was. When Sharma told

them he did not know, they took Sharma with them to look

for his father. After their search proved unsuccessful, they

returned to the police station with Sharma. While there, the

police interrogated Sharma about his father. They wanted to

know about his father’s research and the location of his

1994 SHARMA v. HOLDER

father’s research data. They threatened Sharma, telling him

that they would hurt him if he did not cooperate in providing

them with the information and the data. After several hours,

they released him. At no point during this discussion did

police ever question Sharma about his personal views.

Two days later, the police again took Sharma. They interro-

gated him about the research that his father planned to use in

the book. When Sharma indicated he neither had it nor had

access to that research, they struck his back with belts and a

baton. They released him after four hours.

Sharma then started photocopying the research data before

ostensibly complying with the police by giving them the orig-

inal research, 20-25 pages at a time. He did this for about four

months, but after the police learned about the photocopying,

they once more took Sharma to the station, interrogated him

about the photocopies, and beat him when they were unsatis-

fied with his explanation. They then held Sharma for three

days until his father came to the police station, gave the police

all copies of his research, and promised to stop his research

on the Sikh movement.

Sharma testified that after this last episode, the police came

to the family home and told his father that if he did not give

them a complete copy of the research, they would kill

Sharma. Sharma’s father then abandoned his plans to publish

the Sikh book. At this point, Sharma left the family home and

lived elsewhere in India for about sixteen months. He then

procured a passport and visa prepared by an “agent” and

departed to the United States. Upon departure, the police

allegedly told Sharma’s father that if Sharma returned to

India, they would torture and kill him.

The IJ denied Sharma’s asylum application based on a find-

ing that his testimony lacked credibility. The Board disagreed

with the IJ’s credibility reasoning but nevertheless affirmed

SHARMA v. HOLDER 1995

the decision, holding that there was no evidence that Sharma

was persecuted on account of his political beliefs:

The respondent believes that the police harassed him

in order to stop his father from publishing his book.

He believes the police could not directly oppose his

father. We do not find that the police attributed a

political opinion to the respondent. Rather, the

respondent was a tool used by the police to force

their [sic] father to divulge information and to cease

his activities.

Approximately one and a half months after the Board

issued its decision, Sharma married a United States citizen.

One and a half months after his marriage, Sharma filed a

timely motion to re-open on the ground that he was married

to a United States citizen. He argued that he was now eligible

for adjustment of his status pursuant to a lawful, bona fide

marriage.

The Board disagreed. It ruled that Sharma failed to rebut

the presumption, applicable to all marriages entered into after

the initiation of removal proceedings, that he entered the mar-

riage for the purpose of “procuring [his] admission as an

immigrant.” See 8 U.S.C. § 1255(e)(3); 8 C.F.R.

§ 204.2(a)(1)(iii)(A)-(B).

Sharma subsequently filed two more motions to reconsider,

which were both denied. Sharma now petitions for review of

all of the Board’s adverse rulings.

II.

Sharma first takes issue with the Board’s determination that

he was not persecuted on account of an imputed political

opinion, and that Sharma was instead persecuted based on the

government’s desire to disrupt his father’s scholarly work.

1996 SHARMA v. HOLDER

[1] Eligibility for asylum requires showing a well-founded

fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.

8 U.S.C. § 1101(a)(42)(A). Mandatory withholding of

removal requires a clear probability of the same. 8 C.F.R.

§ 1208.16(b)(2); Al-Harbi v. I.N.S., 242 F.3d 882, 888 (9th

Cir. 2001). Sangha v. I.N.S. provides the facts that Sharma

must prove to establish a well-founded fear of persecution:

After [the Supreme Court’s decision in] Elias-

Zacarias, an asylum seeker claiming to be a victim

of persecution on account of his or her political opin-

ion must establish, by evidence, four facts: (a) that

he or she has been a victim of persecution; (b) that

he or she holds a political opinion; (c) that this politi-

cal opinion is known to or imputed by the persecu-

tors; and (d) the ensuing persecution of the victim

has been or will be on account of this opinion.

103 F.3d 1482, 1487 (9th Cir. 1997). We will reverse the

Board’s determination only if “the evidence [the alien seeking

asylum] presented was so compelling that no reasonable fact-

finder could fail to find the requisite fear of persecution.”

I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). This is

known as the “substantial evidence” standard. Sangha, 103

F.3d at 1487.

[2] The dispositive consideration in this case is whether

Sharma established the fourth Sangha fact: whether the “per-

secution of the victim has been or will be on account of [a

political] opinion.” Id. at 1487. Either the police harmed

Sharma because of an imputed political opinion, or they did

so, as the government argues and the Board found, solely as

a means to convince his father to stop working on the Sikh

book. Given the Board’s credibility finding, “the issue is not

whether the events in question took place, but rather whether

they establish persecution” on the basis of an enumerated

ground. Navas v. I.N.S., 217 F.3d 646, 657-58 (9th Cir. 2000).

SHARMA v. HOLDER 1997

We conclude that this case is governed by our earlier deci-

sion in Sangha. In Sangha we held that the petitioner failed

to meet his burden of proving that an imputed political opin-

ion was the basis for the alleged persecution. There, the

alien’s father was the member and leader of a political party.

103 F.3d at 1486. Shortly after Sangha’s father gave a speech

criticizing the Bhindrawala Tiger Force (BTF) terrorist group,

four armed men forced their way into the Sangha

home. They beat up Sangha’s father until Sangha

and his brother came to protect him. The men identi-

fied themselves as members of the BTF. They

demanded that Sangha’s father cease his political

activities, pay them 100,000 rupees, and give over

Sangha and his brother. They said they wanted the

two brothers to fight for Khalistan and they wanted

to make the brothers unavailable to support the

father. They gave Sangha’s father three weeks to

comply.

Id. Ruling on the above evidence, the Board found that

Sangha was not persecuted on account of his political views.

Id. On appeal, we held that substantial evidence did not com-

pel us to find otherwise. The BTF “gave two reasons why it

wanted to recruit Sangha,” we explained:

First, it wanted Sangha to help fight for Khalistan.

This reason suggests that it was acting in furtherance

of its own goals, rather than to persecute Sangha for

any views he might hold. Second, the BTF wanted

to make Sangha unavailable to support his father.

This reason suggests that it wanted to punish

Sangha’s father, rather than to persecute Sangha for

his political beliefs.

Id. at 1490-91. Because neither reason showed that the BTF

was acting on account of Sangha’s political opinion, we

denied his petition. Id. at 1491.

1998 SHARMA v. HOLDER

[3] In the case before us, the motivation of the police was

clear: stop Sharma’s father from publishing his book. The

police never inquired into Sharma’s own political views.

When they picked him up, their sole inquiry pertained to the

status of his father’s book. The police, according to Sharma’s

hearsay recounting of what his father told him, did continue

to threaten Sharma after he came to the United States. But,

because it is hearsay, the immigration tribunals were permit-

ted to give this evidence less weight than the other evidence

in the record. Gu v. Gonzales, 454 F.3d 1014, 1021 (9th Cir.

2006). That evidence overwhelmingly leads to the finding that

the police wanted to stop the publication of Sharma’s father’s

book rather than persecute Sharma for his political beliefs.

See Sangha, 103 F.3d at 1491.

The thoughtful dissent suggests that Silaya v. Mukasey, not

Sangha, is the controlling precedent. 524 F.3d 1066 (9th Cir.

2008). The facts of Silaya are these: Rosalina, the applicant,

was the daughter of Estaqiou, a man with well-known politi-

cal opinions. Id. at 1068. Members of the New People’s Army

(NPA), a violent anti-government group with a politically-

motivated grudge against Estaqiou, kidnapped, raped, and tor-

tured Rosalina. Id. at 1068-69. The record made clear that the

NPA members knew that Rosalina was the daughter of

Estaqiou—they had asked Estaqiou about her and, when they

kidnapped her, did the act from his house. Id. at 1068-71.

Apart from the circumstances of the kidnapping, the only

indication of the NPA members’ motive was their statement

to Rosalina explaining that they were hurting her “so she will

learn her lesson.” Id. at 1072. The Immigration Judge and the

Board, after reviewing the record, found that Rosalina had not

established a nexus between the persecution and Rosalina’s

political opinion. Id. at 1070. Rosalina petitioned for appeal.

In granting Rosalina’s petition, we held that, although there

was scant direct evidence of the NPA members’ motives,

there was substantial circumstantial evidence that they

imputed a political opinion to her. Id. at 1072. It was enough,

SHARMA v. HOLDER 1999

we reasoned, that “the NPA members knew who [Rosalina]

was, knew who her father was, and made comments indicat-

ing that Rosalina was chosen as a victim because of her

father’s ties to the Philippine government.” Id. That holding

parallels our statement of the law in Navas, another case

involving the persecution of a family member of someone

with well-known political views: “Where police beat and

threaten the spouse of a known dissident, it is logical, in the

absence of evidence pointing to another motive, to conclude

that they did so because of the spouse’s presumed guilt by

association.” 217 F.3d at 659 n.18 (emphasis added).

The differences between the facts of Silaya and the ones

here are important. In Silaya, we had very limited information

regarding the NPA’s motives. From the circumstances of the

abduction and the NPA’s knowledge regarding Rosalina’s

father, we drew the logical inferences regarding the NPA’s

motives. Here, however, we have extensive evidence of the

police’s motives. Every time the police took Sharma to the

police station they indicated that they wanted “to force [Shar-

ma’s] father to divulge information and to cease his activities.”1

With this additional “evidence pointing to another motive,”

Navas, 217 F.3d at 659 n.18, Silaya is not on point and we are

thus not compelled to find that the police persecuted Sharma

on account of a political opinion imputed to him. See Sangha,

103 F.3d at 1487.

1

The dissent also proposes that statements within the record constitute

direct evidence that Sharma was beaten “on account of his father’s beliefs

which they imputed to him.” Dissent at 2005. We respectfully disagree

that these isolated statements are substantial evidence that compel us to

reverse the Board’s decision. We are required to look at the “record con-

sidered as a whole” in assessing whether a petitioner established eligibility

for asylum. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Neither

Sharma’s isolated statement, made once and without any context, that the

police accused him of helping Sikh terrorists nor Sharma’s neighbor’s

hearsay statement that the police accused Sharma of being “anti Govt[-

sic],” viewed in the context of the record as a whole “compels” the conclu-

sion that he has a “well-founded fear” that he will be persecuted because

“of a political opinion, imputed or direct. Id. at 483.

2000 SHARMA v. HOLDER

[4] Because he was not persecuted on account of his politi-

cal views, Sharma has no fear of future persecution on

account of those views. We therefore deny his petition for

asylum and withholding of removal.

III.

[5] Sharma also challenges the Board’s denial of his

request for relief under CAT. To obtain CAT protection, an

applicant must show “that it is more likely than not that he or

she would be tortured if removed to the proposed country of

removal.” 8 C.F.R. § 1208.16(c)(2). As set forth earlier, Shar-

ma’s father abandoned plans to publish his book, turned over

his research to the police, and remained employed and

unharmed in India. Because the police were using Sharma as

a tool to stop his father from publishing the book, and the

publishing has been abandoned, substantial evidence supports

the Board’s finding that it is not more likely than not that

Sharma will be persecuted, let alone tortured by the Indian

police upon his return. We therefore deny his petition for

review based on the CAT claim.

IV.

Sharma next argues that the Board abused its discretion in

denying his first motion to reopen based on insufficient evi-

dence of a bona fide marriage. We apply an abuse of discre-

tion standard to decisions by the Board regarding motions to

reopen. I.N.S. v. Doherty, 502 U.S. 314, 323 (1992).

[6] When an alien enters into a marriage following the

completion of removal proceedings, it is presumed that the

purpose is to “procur[e] the alien’s admission as an immi-

grant.” See 8 U.S.C. § 1255(e)(3); 8 C.F.R.

§ 204.2(a)(1)(iii)(A)-(B). To overcome this presumption, an

applicant filing a motion with the Board to reopen removal

proceedings must “ ‘present[ ] clear and convincing evidence

indicating a strong likelihood that the [petitioner’s ] marriage

SHARMA v. HOLDER 2001

is bona fide.’ ” Malhi v. I.N.S., 336 F.3d 989, 994 (9th Cir.

2003), quoting In re Velarde-Pacheco, 23 I. & N. Dec. 253,

256 (BIA 2002).

[7] “[A]n applicant must offer evidence that is probative of

the motivation for marriage, not just the bare fact of getting

married.” Malhi, 336 F.3d at 994. The types of evidence

which tend to show a bona fide marriage include documents

demonstrating “joint ownership of property,” a “[l]ease show-

ing joint tenancy of a common residence,” “[d]ocumentation

showing comingling of financial resources,” “[a]ffidavits of

third parties . . . contain[ing] complete information and details

explaining how the person acquired his or her knowledge of

the marriage,” and “[a]ny other documentation which is rele-

vant to establish that the marriage was not entered into in

order to evade the immigration laws of the United States.” 8

C.F.R. § 204.2(a)(1)(iii)(B)(2-3, 5-6).

Within 90 days of the Board’s denial of his appeal, Sharma

got married. His wife then filed an I-130, and Sharma moved

to reopen the case he had lost. Attached to his motion to

reopen was a copy of a car title and insurance in both his and

his wife’s names, utility bills in both names, bank account

information in both of their names, his wife’s home rental

agreement with an addendum adding Sharma but unsigned by

the landlord, welfare food stamp reports in which Sharma and

his wife are treated as a couple, sworn affidavits regarding the

marriage from Sharma’s wife, greeting cards between

Sharma, his wife, and her daughter, letters from relatives con-

gratulating him on his marriage, and his wife’s I-130 applica-

tion which included his marriage certificate, photographs, and

further affidavits.

Few published cases hold that the Board either did or did

not abuse its discretion in denying a motion to reopen for pur-

poses of asserting a recent marriage to a United States citizen.

Only a few cases further address whether an alien has met his

burden of presenting clear and convincing evidence of a bona

2002 SHARMA v. HOLDER

fide marriage. In Malhi, the applicant simply presented a mar-

riage certificate, his wife’s birth certificate, four photographs

and a receipt for an I-130 filing. 336 F.3d at 994. We denied

the petition from the Board’s rejection of his motion to

reopen. Id. Similarly, in Ahmed v. Mukasey, we held:

The only documents pre-dating April 2004 were (1)

a copy of her marriage certificate and license; (2) the

visa application; (3) photographs; and (4) one joint

phone bill for $3.26 from March 2004. These docu-

ments were insufficient to prove, by clear and con-

vincing evidence, that her marriage was bona fide.

548 F.3d 768, 773 (9th Cir. 2008), citing Malhi, 336 F.3d at

994. In Damon v. Ashcroft, on the other hand, we held that

“proof that Sung Hee was listed on Scott’s insurance policies,

property leases, income tax forms or bank accounts, and testi-

mony or other evidence regarding their courtship, wedding

ceremony and whether they shared a residence . . . [,]” was

sufficient to establish clear and convincing evidence of a bona

fide marriage. 360 F.3d 1084, 1088 (9th Cir. 2004) (citation

omitted). Similarly, the applicant in Velarde-Pacheco pres-

ented his son’s birth certificate and proof of cohabitation,

which the Board held to be a sufficient grounds to warrant

reopening his case. 23 I. & N. Dec. at 256.

[8] Sharma submitted more information than the applicants

in Malhi and Ahmed, but he submitted less information

regarding cohabitation than the applicant in Damon, and he

does not have a child, as in Velarde-Pacheco. “[A]n applicant

must offer evidence that is probative of the motivation for

marriage, not just the bare fact of getting married.” Malhi,

336 F.3d at 994 (emphasis added). All of Sharma’s evidence

goes to the fact that he and his wife did have a marriage cere-

mony and joined their lives, to some extent, after the fact.

What it does not do, however, is show any evidence of court-

ship or commingling of lives before their marriage. For exam-

ple, while Sharma provided evidence that he and his wife

SHARMA v. HOLDER 2003

commingled some of their funds and added Sharma’s name to

some of their agreements, their affidavits regarding their mar-

riage provide no details regarding the courtship or rationale

for their marriage. Sharma’s wife’s affidavit states, in its

entirety:

I, Athena Diane Sharma, met my husband, Ratnesh

Sharma, in the beginning of the year 2004.

When he moved here from San Francisco, I met him

at the store where he is employed. We spent some

time together, and on my birthday, August 28, he

proposed marriage to me, which I accepted. We

decided to get married at the beginning of the year,

2005 [and] we have been together ever since.

We were married on January 12, 2005 in the pres-

ence of a few close friends. Ratnesh moved in with

me at that time, where we still reside.

It goes without saying that this affidavit does nothing to estab-

lish that Sharma’s motivation to marry was bona fide. That

fact, coupled with the absence of any evidence regarding

Sharma’s and Athena’s courtship lead us to conclude that the

Board did not abuse its discretion in denying Sharma’s

motion to reopen. The utility bills and greeting cards are of

little help in overcoming the presumption of invalidity.

V.

Sharma brought a second and a third motion to reopen.

Generally a petitioner is entitled to file only one motion to

reopen, which must be filed within ninety days of the date of

entry of the Board’s final decision. 8 U.S.C.

§ 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). Although the

Board has discretion to reopen removal proceedings “on its

own motion” “at any time” pursuant to 8 C.F.R. § 1003.2(a),

we lack jurisdiction to review the Board’s decision not to

2004 SHARMA v. HOLDER

invoke its sua sponte authority to reopen those proceedings.

See Ekimian v. I.N.S., 303 F.3d 1153, 1159 (9th Cir. 2002).

Here, Sharma contends that his second and third motions to

reopen should not count as number or time-barred, but he

cites no published authority supporting his argument, and we

are aware of none. We therefore hold that we lack jurisdiction

to review Sharma’s second and third motions to reopen.

VI.

Sharma’s due process argument fares no better. Sharma

argues that the Board violated his due process rights by deny-

ing his time and number-barred motions to reopen. “Deporta-

tion proceedings violate due process if the alien does not

receive a full and fair hearing and suffers prejudice as a

result.” Perez-Lastor v. I.N.S., 208 F.3d 773, 777 (9th Cir.

2000). Because Sharma “does not contend that [he] was pre-

vented from presenting [his] case before the IJ, denied a full

and fair hearing before an impartial adjudicator, or otherwise

denied a basic due process right[,]” his petition fails. See

Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.

2005), citing 8 U.S.C. § 1252(a)(2)(B)(i).

PETITION DENIED.

THOMAS, Circuit Judge, concurring in part and dissenting in

part:

I agree with the majority that Sharma’s petition should be

denied as to his claim under the Convention Against Torture,

his motions to reopen, and his due process claim. I accord-

ingly join parts I, III, IV, V, and VI of the majority opinion.

However, I would grant the petition as to the asylum claim.

Therefore, I concur in part, and I respectfully dissent in part.

SHARMA v. HOLDER 2005

I

Our precedent holds that “evidence ‘[t]hat the alleged per-

secutor acted because of a petitioner’s family’s political asso-

ciations is sufficient’ to satisfy the motive requirement.”

Silaya v. Mukasey, 524 F.3d 1066, 1070-71 (9th Cir. 2008)

(quoting Kebede v. Ashcroft, 366 F.3d 808, 812 (9th Cir.

2004) (citing Lopez-Galarza v. I.N.S., 99 F.3d 954, 960 (9th

Cir. 1996))). Sharma has made the requisite showing here. At

the time of his persecution, he was assisting his father, a his-

tory professor, with a book he was writing on Sikh national-

ism. Sharma’s family “did not support” Sikh nationalism, but

“did support the rights for which [the Sikhs] were fighting.”

Sharma’s father and grandfather were both members of

India’s Congress Party in the early 1980s (with Sharma’s

grandfather occupying senior Party positions), but they left

the Party to protest its violence against the Sikhs. Thereafter,

Sharma’s father “guided” the Sikh Students Federation at

Guru Nanak Khalsa College, where he taught. Sharma’s

father testified that, “My work has lead [sic] me to be arrested

and harassed and my son to suffer the brunt of the wrath of

the Indian Government through the Punjab Police.”

Quoting Bhasin v. Gonazales, 423 F.3d 977, 985 (9th Cir.

2005), the government repeats the old saw that “persecutors

‘do not always take the time to tell their victims all the rea-

sons’ they are being harmed.” Here, however, Sharma’s per-

secutors did tell him why he was being detained and beaten:

on account of his father’s political beliefs, which they

imputed to him. Sharma testified that, as he was being beaten,

the police “accused [him] and [his] father of helping the

[Sikh] terrorist[s].” Sharma also testified that the police

accused him of “trying to protect [his] father’s propaganda.”

Sharma’s neighbor recounted that “[t]he police accused . . .

Sharma of being anti Govt and harassed him to prevent his

father . . . from working on his research.” The record compels

the conclusion that Sharma’s persecutors attributed his

2006 SHARMA v. HOLDER

father’s political opinion to him and persecuted him on

account of it. Silaya, 524 F.3d at 1070.

If the police persecuted Sharma in part, or even primarily,

to “stop Sharma’s father from publishing his book,” that

ought have no effect on Sharma’s asylum claim. Sharma’s

undisputed testimony, which the BIA found credible, estab-

lishes that Sharma’s persecution was politically motivated.

“[W]here a persecutor has [mixed] motives for retaliating

against a political opponent, the persecutor’s mixed motives

do ‘not render the opposition any less political, or the oppo-

nent any less deserving of asylum.’ ” Zhu v. Mukasey, 537

F.3d 1034, 1043 (9th Cir. 2008) (quoting Grava v. INS, 205

F.3d 1177, 1181 n. 3 (9th Cir. 2000)). And the fact that “[t]he

police never inquired into Sharma’s own political views” is

equally immaterial. In Silaya, we found substantial evidence

compelling a conclusion of persecution on account of a politi-

cal opinion where “the [persecutors] knew who [the peti-

tioner] was, knew who [the petitioner’s] father was, and made

comments indicating that [the petitioner] was chosen as a vic-

tim because of [the petitioner’s] father’s [political views].”

524 F.3d at 1072. We characterized these as the facts “neces-

sary to prove an imputed political asylum claim,” and did not

require the petitioner to make any showing that the persecu-

tors inquired after the petitioner’s own political opinions. Id.

Sharma has put forward ample evidence demonstrating these

facts, and his petition for review ought to be granted.

Sangha does not compel a contrary conclusion. There, we

held that “[i]f the persecutor attributed a political opinion to

the victim, and acted upon the attribution, this imputed view

becomes the applicant’s political opinion as required under

the [INA].” 103 F.3d at 1439. Here, as described above,

Sharma has shown “that his persecutors actually imputed a

political opinion to him.” Id. By contrast, the court in Sangha

relied on the fact that, there, the persecutors “never expressly

said that [they were persecuting] Sangha because of his

father’s views,” 103 F.3d at 1489-90, and in prior altercations

SHARMA v. HOLDER 2007

had focused entirely on Sangha’s father, and not Sangha, id.

at 1490. Whereas Sangha’s persecutors “ignored” him, id.,

Sharma’s persecutors—in the words of the government—

“targeted” him, in part because they knew that his father’s

political ties made his father immune from harassment. Our

decision in Sangha supports Sharma’s claims.

II

The government asserts that, even if we were to hold that

Sharma had suffered past persecution, a change in circum-

stances undermines any presumption that Sharma’s fear of

future persecution is well-founded. Where there is past perse-

cution, “a rebuttable presumption of a well-founded fear

arises . . . and the burden shifts to the government to demon-

strate,” by a preponderance of the evidence, “that there has

been a fundamental change in circumstances such that the

applicant no longer has a well-founded fear.” Tawadrus v.

Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004) (citing 8 C.F.R.

§ 1208.13) (internal quotation marks omitted). Here, the gov-

ernment has not met its burden.

First, the BIA’s conclusion that “[t]here is no recent evi-

dence to corroborate [Petitioner’s] claim that the authorities

would still wish to harm” him is premised on a misreading of

the record. In its initial decision, the BIA recounted that

Sharma was threatened with death by the police only before

his father delivered his research materials to them, and con-

cluded therefore that the danger to Sharma had passed. How-

ever, the BIA misstated the record, which shows that

Sharma’s persecution persisted after his father handed over

his research and stopped working on his book. In late 1999,

Sharma and his father began delivering Sharma’s father’s

research to the police in order to mollify them. Despite this,

on January 24, 2000, the police detained Sharma for three

days and beat him “every day.” Sharma was released when

his father “agreed that he would stop his research and hand

. . . over the papers” to the police, which he did. Nonetheless,

2008 SHARMA v. HOLDER

shortly thereafter the police visited Sharma’s home, told his

“father that the research papers [were] not complete,” and

threatened that they would kill Sharma. Sharma also testified

that, in the years since he left India, the police have continued

to visit his family’s home and to threaten to kill him if he

returns. Therefore, as the government acknowledges, the BIA

erred when it found that Sharma was only threatened prior to

his father promising to cease work on his book and hand over

his research materials.

The government points to additional reasons why Sharma’s

claim of a well-founded fear is undermined, but it does not

rebut the presumption that operates in Sharma’s favor. The

government emphasizes that Sharma’s father remains

unharmed and cites Hakeem v. INS, 273 F.3d 812 (9th Cir.

2001), for the proposition that Sharma’s claim is “weakened,

even undercut, when similarly-situated family members con-

tinue to live in the country without incident.” Id. at 816. But

“the facts in Hakeem are entirely distinguishable from those

in this case; critically, the family members at issue in Hakeem

were in fact ‘similarly situated,’ whereas here they are not.”

Kumar v. Gonzales, 444 F.3d 1043, 1055 (9th Cir. 2006).

Hakeem’s family members remained safe in Hakeem’s former

home despite changing their religion—the very same behavior

on account of which Hakeem claimed threats and sought asy-

lum. Id. Here, Sharma testified that his father’s immunity

from violence and direct threats is explained by his father’s

standing and “links” in the community. Sharma was targeted,

in part, because his father could not be. Sharma and his father

are not similarly situated.

The government also notes that Sharma “received a valid

passport and visa at a time Indian authorities ‘were allegedly

interested him,’ ” and cites Espinoza-Martinez v. INS, 754

F.2d 1536 (9th Cir. 1985), for the proposition that “easy

acquisition of [a] passport cuts against petitioner’s argument

that he will be individually persecuted upon return.” How-

ever, it was not at all “easy” for Sharma to acquire the pass-

SHARMA v. HOLDER 2009

port and visa that enabled him to leave India and enter the

U.S. While he had gotten and renewed a passport through nor-

mal channels in the past, in order to procure a passport after

the police harassment began, Sharma paid an “agent” 750,000

rupee, or more than $16,000 at today’s exchange rate of 46

rupee per dollar. Espinoza is distinguishable, as there, the

petitioner “acquired a . . . passport without difficulty.” 754

F.2d at 1540.

III

Substantial evidence supports the conclusion that Sharma

was persecuted on account of a protected ground, and that the

government has not met its burden of rebutting the presump-

tion that Sharma has a well-founded fear of future persecu-

tion. I would grant the petition for review as to Sharma’s

asylum claim.