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Kumar v. Holder

United States Court of Appeals, Ninth Circuit

August 29, 2013

Vijay Kumar, Petitioner,
v.
Eric H. Holder, Jr., Attorney General, Respondent.

Argued and Submitted March 11, 2013—San Francisco, California

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A072-671-421

COUNSEL

David J. Kaufman, San Francisco, California, for Petitioner.

Matt A. Crapo, Department of Justice, Washington, D.C., for Respondent.

Before: John T. Noonan, Raymond C. Fisher, and Jacqueline H. Nguyen, Circuit Judges.

SUMMARY[*]

Immigration

The panel granted a petition for review concluding that the Board of Immigration Appeals erred in failing to consider the circumstances particular to petitioner's service as a prison guard in India in denying him asylum and withholding of removal pursuant to the persecutor of others bar of 8 U.S.C. § 1158(b)(2)(A)(I).

The panel held that in determining whether petitioner's actions rose to the level of "personal involvement" triggering the persecutor bar, the BIA misunderstood and misapplied relevant precedent, including Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006) and Fedorenko v. United States, 449 U.S. 490 (1981). The panel remanded for the Board to determine whether petitioner purposefully assisted in the alleged persecution of prisoners.

OPINION

NOONAN, Circuit Judge.

Vijay Kumar petitions for review of the denial of his appeal by the Board of Immigration Appeals (the BIA). We hold that the BIA erred in failing to consider the circumstances particular to Kumar's service as a prison guard in India. We grant the petition and remand for further consideration.

FACTS

In June 1989, Kumar, age 24, joined the Punjab police. He was trained for seven months and was then posted in Tarn Tarn as a constable. After more than a year there, Kumar was assigned to patrol the superintendent's residence. His primary duty was to stand in front of the ...


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