A decision was overturned that denied an Indian woman asylum. The 9th Circ. found that the Board of Immigration Appeals (BIA) wrongly held that death threats, physical attacks on her parents, and an attempted gang rape attempt were insufficient to constitute past persecution.

The decision from a 2-1 panel stated that the BIA erred in requiring the asylum seeker to offer evidence other than her own credible testimony. The claimant reported an attempted gang rape by members of the Congress Party to show she had been persecuted for her political affiliation.

“When a petitioner demonstrates that she has suffered an attempted rape, she need not adduce additional evidence of harm — psychological or otherwise — to establish past persecution,” the majority opinion says. “Attempted rape itself is a severe violation of bodily integrity and autonomy, and so is itself almost always a form of persecution.”

The Congress Party held nearly half the seats in the state legislature and eventually became the state’s ruling party shortly after the attempted rape. Once in control of the government, the party members continued to harass her and then beat her parents. The lower court error was in the conclusion that the party was not part of the government, per the majority opinion.

In the dissent, U.S. Circuit Court Judge Eric D. Miller disagreed with the majority’s outcome. Judge Miller said evidence supported the board’s finding that Kaur’s attackers were private citizens. As such he would affirm the decision to deny the petition.

In September 2017, the claimant sought asylum in the U.S.

We will continue to monitor the asylum processes. If you have questions about asylum or other immigration processes, contact us. Our experienced and talented attorneys work with you to understand your specific situation and give you the right advice.

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