Kumar v. Holder

When analyzing the level of “personal involvement” in granting asylum under the Immigration and Nationality Act, the Board of Immigration Appeals should consider a petitioner’s particular circumstances.

After testifying against Indian government officials, Vijay Kumar sought asylum. The Immigration Judge (“IJ”) denied Kumar’s application for asylum, finding he had “assisted in the persecution of others” during his service as a guard, and the Immigration and Nationality Act (“INA”) forbids the granting of asylum to those who “ordered, incited, assisted, or otherwise participated in the persecution” of any person. Kumar appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”). The BIA affirmed the IJ’s finding that Kumar’s position in the Punjabi Police was analogous to Fedorenko, a Nazi prison guard “barred from entry due to his acts of persecution.” The Ninth Circuit concluded that the BIA erred in failing to consider the circumstances particular to petitioner’s service as a prison guard and held that the BIA misunderstood and misapplied relevant precedent, including Miranda Alvarado v. Gonzales and Fedorenko v. United States. Miranda Alvarado established the requirements for analyzing the “persecutor bar” under the INA. Unlike Miranda, who was, a “regular part of interrogation teams” and “present and active during the alleged persecution,” Kumar took no part in interrogation, and was neither present nor active during the alleged persecution. The panel addressed that the IJ and BIA failed to observe and consider various factors including why a person not actively involved in persecutive acts and with highly attenuated involvement in persecution would still be subject to the persecutor bar; the obvious differences between “Nazi guards at concentration camps and members of a legitimate law enforcement agency;” and the extenuating circumstances, including possible action in self defense. The panel remanded for the BIA to determine whether Kumar purposefully assisted in the alleged persecution of prisoners. PETTION GRANTED; REMANDED.