The Ninth Circuit held Friday that credible testimony about an attempted gang rape was sufficient to establish an asylum applicant’s past persecution, and that the Board of Immigration Appeals shouldn’t have imposed evidentiary requirements beyond the attempted assault.
Chanpreet Kaur, a native of the state of Punjab in India, sought asylum in the United States for fear of persecution in her country of origin. Kaur testified that, because of her political advocacy for the independent Sikh state of Khalistan, a group of men from one of Punjab’s major political parties dragged her into a public street and attempted to gang rape her.
The attempted assault followed months of threats from Indian National Congress Party agents, according to Kaur’s testimony. She also testified that agents from the party and police officers tracked down and beat her parents after she fled to the United States.
In considering Kaur’s asylum application, the Board of Immigration Appeals (BIA) concluded that her testimony did not establish a sufficient “amount of mistreatment” to constitute past persecution for asylum purposes. The BIA reasoned that the attempted gang rape “did not rise to the level of persecution” because Kaur lacked evidence of “treatment for psychological harm” or other “ongoing issues” stemming from the assault.
Granting Kaur’s petition for review, the Ninth Circuit held that the BIA shouldn’t have imposed evidentiary requirements of ongoing injury or treatment beyond the assault itself in order to show persecution, finding that Kaur’s credible testimony about the attempted gang rape was sufficient.
“Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law,” Judge Kim McLane Wardlaw wrote for the three-judge panel’s majority. “Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
The majority held that when petitioners demonstrate that they have suffered an attempted rape, they “need not adduce additional evidence of harm — psychological or otherwise — to establish past persecution.” Attempted rape itself “is a severe violation of bodily integrity and autonomy, and so is itself almost always a form of persecution,” Wardlaw wrote.
“We have consistently treated rape as one of the most severe forms of persecution an asylum-seeker can suffer,” the majority noted, adding that rape and sexual violence “have a long and tragic history as weapons of war.” The panel observed that other circuits have recognized that attempted rape “violates notions of bodily autonomy almost as much as rape itself.” (Nakibuka v. Gonzales (7th Cir. 2005) 421 F.3d 473, 476–77; Uwais v. U.S. Attorney General (2d Cir. 2007) 478 F.3d 513, 516.)
And “because the psychological harm of an attempted rape is inherent in the act itself,” the majority held, “there is no need to require asylum seekers — many of whom have limited resources — to gather and produce evidence of ongoing psychological harm or treatment to supplement their claims.”
Dissenting, Judge Eric Miller wrote that substantial evidence supports the BIA’s finding that Kaur’s attackers were not part of the government and that the Indian government was not unable or unwilling to control them, and that the attempted assault therefore does not constitute persecution for asylum purposes.
Doug Jalaie, who represented Kaur, said that legally speaking the decision provides a strong precedent for establishing persecution in asylum cases, but he lamented that Kaur was in custody and prolonged detention while her case made its way through the courts.
“The fact that she was languishing in there, someone who has been through trauma, and then the taxpayer resources that this cost between her detention and the litigation that goes all the way up to the Ninth Circuit,” Jalaie said. “This should have been disposed of at a much earlier stage. It makes me shake my head.”
The U.S. Department of Justice could not be immediately reached for comment on the decision.
The case is Kaur v. Wilkinson, case number 18-73001, in the U.S. Court of Appeals for the Ninth Circuit.
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