Sharma, et al v. Holder

Filing

FILED OPINION (J. CLIFFORD WALLACE, SIDNEY R. THOMAS and RICHARD MILLS) DENIED. Judge: JCW Authoring, Judge: SRT Concurring & Dissenting, FILED AND ENTERED JUDGMENT. [7631562] [04-76624, 05-72456, 09-71104]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT



RATNESH SHARMA,
Petitioner,
ERIC H. HOLDER
General,

v.
JR., Attorney
Respondent.





RATNESH SHARMA,
Petitioner,
ERIC H. HOLDER
General,

v.
JR., Attorney
Respondent.



No. 05-72456
Agency No.
A079-566-588




RATNESH SHARMA,
Petitioner,
ERIC H. HOLDER
General,

No. 04-76624
Agency No.
A079-566-588

v.
JR., Attorney
Respondent.




No. 09-71104
Agency No.
A079-566-588
OPINION

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

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1990

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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.

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1992

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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

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Board reviewed favorably the decision of the immigration
judge (IJ), which denied Sharma’s application for asylum,
withholding of deportation, and protection under the Convention 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 political operative working against the government’s interests.
Sharma is a Hindu. His trouble began when his father, a professor 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 performed 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

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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 interrogated 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 original 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 unsatisfied 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 finding that his testimony lacked credibility. The Board disagreed
with the IJ’s credibility reasoning but nevertheless affirmed

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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 marriage 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.

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[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] EliasZacarias, an asylum seeker claiming to be a victim
of persecution on account of his or her political opinion 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 political opinion is known to or imputed by the persecutors; 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 factfinder 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 “persecution 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).

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1997

We conclude that this case is governed by our earlier decision in Sangha. In Sangha we held that the petitioner failed
to meet his burden of proving that an imputed political opinion 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 identified 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 compel 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.

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[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 permitted 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 political opinions. Id. at 1068. Members of the New People’s Army
(NPA), a violent anti-government group with a politicallymotivated grudge against Estaqiou, kidnapped, raped, and tortured 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,

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we reasoned, that “the NPA members knew who [Rosalina]
was, knew who her father was, and made comments indicating 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 [Sharma’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 considered 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 conclusion that he has a “well-founded fear” that he will be persecuted because
“of a political opinion, imputed or direct. Id. at 483.

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[4] Because he was not persecuted on account of his political 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, Sharma’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 evidence of a bona fide marriage. We apply an abuse of discretion 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 immigrant.”
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

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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 showing 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 relevant 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 congratulating him on his marriage, and his wife’s I-130 application 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 purposes 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

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fide marriage. In Malhi, the applicant simply presented a marriage 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 documents were insufficient to prove, by clear and convincing 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 testimony 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 presented 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 ceremony and joined their lives, to some extent, after the fact.
What it does not do, however, is show any evidence of courtship or commingling of lives before their marriage. For example, while Sharma provided evidence that he and his wife

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commingled some of their funds and added Sharma’s name to
some of their agreements, their affidavits regarding their marriage 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 presence 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 establish 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

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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 denying his time and number-barred motions to reopen. “Deportation 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 prevented 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 accordingly 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.

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I
Our precedent holds that “evidence ‘[t]hat the alleged persecutor acted because of a petitioner’s family’s political associations 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 history professor, with a book he was writing on Sikh nationalism. 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 reasons’ they are being harmed.” Here, however, Sharma’s persecutors 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

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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, establishes 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 opponent 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 political opinion where “the [persecutors] knew who [the petitioner] was, knew who [the petitioner’s] father was, and made
comments indicating that [the petitioner] was chosen as a victim because of [the petitioner’s] father’s [political views].”
524 F.3d at 1072. We characterized these as the facts “necessary to prove an imputed political asylum claim,” and did not
require the petitioner to make any showing that the persecutors 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

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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 circumstances undermines any presumption that Sharma’s fear of
future persecution is well-founded. Where there is past persecution, “a rebuttable presumption of a well-founded fear
arises . . . and the burden shifts to the government to demonstrate,” 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 government has not met its burden.
First, the BIA’s conclusion that “[t]here is no recent evidence 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 concluded therefore that the danger to Sharma had passed. However, 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,

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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 continue 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 asylum. 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.” However, it was not at all “easy” for Sharma to acquire the pass-

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port and visa that enabled him to leave India and enter the
U.S. While he had gotten and renewed a passport through normal 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 presumption that Sharma has a well-founded fear of future persecution. I would grant the petition for review as to Sharma’s
asylum claim.