FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CHANPREET KAUR, No. 18-73001 Petitioner, Agency No. v. A213-086-008 ROBERT M. WILKINSON, Acting Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 22, 2021 * Pasadena, California Filed January 29, 2021 Before: Kim McLane Wardlaw, Mary H. Murguia, and Eric D. Miller, Circuit Judges. Opinion by Judge Wardlaw; Dissent by Judge Miller * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 KAUR V. WILKINSON SUMMARY ** Immigration The panel granted Chanpreet Kaur’s petition for review of the Board of Immigration Appeals’ denial of her applications for asylum and related relief, and remanded, holding that Kaur’s credible testimony about an attempted gang rape was sufficient to establish past persecution, and that the Board erred in imposing evidentiary requirements of ongoing injury or treatment beyond the attempted sexual assault in order to show persecution. The Board concluded that Kaur failed to establish past harm rising to the level of persecution, stating that although some forms of sexual assault short of rape can and do constitute persecution, Kaur’s attempted gang rape could not rise to the level of persecution unless she produced evidence of treatment for psychological harm or further specific testimony regarding ongoing issues stemming from the attack. The panel held that the Board erred in requiring such additional evidence of harm, psychological or otherwise, explaining that attempted rape itself is a severe violation of bodily integrity and autonomy, and so is itself almost always a form of persecution. The panel noted that this court has consistently treated rape as one of the most severe forms of persecution, and explained that some forms of physical violence are so extreme that even attempts to commit them constitute persecution. The panel explained that in evaluating whether past treatment rises to the level of ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. KAUR V. WILKINSON 3 persecution, the appropriate inquiry looks not to the level of harm experienced by the petitioner, but rather whether the treatment the victim received rises to the level of persecution. In other words, it is the conduct of the persecutor, not the subjective suffering from the perspective of the victim, that matters for purposes of determining what constitutes persecution. The panel held that Kaur’s credible testimony about her attempted rape by a gang of Congress Party agents, in broad daylight on a public street, which left her bloodied and bruised and in need of medical treatment, was sufficient to establish past persecution. The panel noted that although this attack alone was sufficient to establish persecution, Kaur also endured death threats and her parents were attacked on multiple occasions, which under the totality of the circumstances, established past persecution on account of her political opinion. The panel concluded that the Board ...
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