Kumar v. Holder, No. 08-72119 (9th Cir. 2013)
Annotate this CasePetitioner, a former prison guard in India, challenged the BIA's decision affirming the IJ's conclusion that petitioner failed to establish eligibility for asylum and withholding of removal because he had assisted in the persecution of others on account of political opinion. The court granted the petition for review, concluding that the decisions of the IJ and BIA reflected a misunderstanding and misapplication of relevant precedent. The court remanded under INS v. Ventura to consider whether petitioner purposefully assisted in the alleged persecution. In doing so, the BIA should consider in particular whether the work of a sentry on the perimeter of an intelligence facility was integral not only to the functioning of the facility but also to the persecution that occurred inside of it, and the differences between the role of a Nazi guard at a Nazi concentration camp and petitioner, an individual working for a legitimate arm of a recognized government at a legitimate prison facility.
Court Description: Immigration. The panel granted a petition for review concluding that the Board of Immigration Appeals erred in failing to consider the circumstances particular to petitioner’s service as a prison guard in India in denying him asylum and withholding of removal pursuant to the persecutor of others bar of 8 U.S.C. § 1158(b)(2)(A)(I). The panel held that in determining whether petitioner’s actions rose to the level of “personal involvement” triggering the persecutor bar, the BIA misunderstood and misapplied relevant precedent, including Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006) and Fedorenko v. United States, 449 U.S. 490 (1981). The panel remanded for the Board to determine whether petitioner purposefully assisted in the alleged persecution of prisoners.
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