Wednesday, February 2, 2011
Court Rejects Alien’s Persecution Claim Based on Father’s Attempt to Publish Book on Separatists
By SHERRI M. OKAMOTO, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday upheld the denial of immigration relief to a native of India who claimed to have been persecuted by police seeking to stop his father from publishing a book about a Sikh separatist movement.
Based on the lack of any evidence regarding the alien’s courtship and motivation for his subsequent marriage to his American wife, the appellate panel also concluded the Board of Immigration Appeals had not abused its discretion in denying Ratnesh Sharma’s petition to re-open his removal proceedings.
At hearings on his asylum application before an immigration judge, Sharma claimed the Punjab police viewed him as a political operative working against the government’s interests because of his work assisting his father, a college history professor, with a book on Sikh nationalism.
Sharma asserted that police officers interrogated him repeatedly about the research that his father planned to use in the book and, on one occasion, beat him when he told them he did not have access to his father’s research.
He claimed he was beaten again when the police learned he was photocopying the research data and held in custody for three days. The police also allegedly threatened to kill him if his father did not give them all the research data.
Sharma’s father eventually abandoned his plans to publish the book and Sharma left the family home. He lived elsewhere in India for 16 months, then departed to the United States. Sharma said the police told his father they would torture and kill him if he were to return.
The immigration judge denied Sharma’s asylum application based on a determination that his testimony lacked credibility. The Board of Immigration Appeals rejected the adverse credibility finding, but affirmed the IJ’s decision, concluding there was no evidence that Sharma was persecuted on account of his political beliefs.
Approximately six weeks later, Sharma married a U.S. citizen. He later filed a timely motion to re-open the his immigration case, seeking adjustment of his status as a result of his marriage.
The BIA rejected the motion, ruling Sharma had failed to rebut the presumption, applicable to all marriages entered into after the initiation of removal proceedings, that he entered the union for the purpose of procuring his admission as an immigrant.
Writing for the Ninth Circuit panel, Senior Judge J. Clifford Wallace said “the motivation of the police was clear: stop Sharma’s father from publishing his book.” Since the officers’ alleged inquires always pertained to the status of his father’s book and not Sharma’s own political views, Wallace reasoned this “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.”
Wallace also explained an alien must offer evidence that is probative of the motivation for marriage, not just the bare fact of getting married, to warrant reopening his case. He noted Sharma had presented some evidence that he and his wife had a marriage ceremony and joined their lives by linking their finances and cohabitating, but that he did not establish any courtship or commingling of lives before their marriage.
Senior U.S. District Judge Richard Mills of the Central District of Illinois, sitting by designation, joined Wallace, but Judge Sidney R. Thomas wrote separately, contending Sharma should have been granted asylum since the record “compels the conclusion that Sharma’s persecutors attributed his father’s political opinion to him and persecuted him on account of it.”
If the police persecuted Sharma in part, or even primarily, to stop his father from publishing the book, Thomas argued this “ought have no effect on Sharma’s asylum claim.” The lack of inquiry into Sharma’s political views “is equally immaterial,” Thomas said, analogizing Sharma’s situation to the petitioner in Silaya v. Mukasey, (2008) 524 F.3d 1066.
The Ninth Circuit found in that cae that the petitioner had suffered persecution due to the imputed political opinion of her father since the alleged persecutors knew who the petitioner was, knew who her father was, and made comments indicating she was being victimized because of her father’s views.
The case is Sharma v. Holder, 04-76624.
Copyright 2011, Metropolitan News Company