13-113
    Janjua v. Lynch
                                                                                  BIA
                                                                             Cheng, IJ
                                                                          A094 938 192
                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 1st day of July, two thousand fifteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             ROSEMARY S. POOLER,
             DENNY CHIN,
                  Circuit Judges.
    _____________________________________

    BAHAHDUR SINGH JANJUA,
             Petitioner,1

                      v.                                   13-113
                                                           NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________


    FOR PETITIONER:               Devin T. Theriot-Orr, Gibbs Houston
                                  Pauw, Seattle, WA.



                  1
              The Clerk of Court is respectfully directed to
        amend the case caption to conform with the above.
FOR RESPONDENT:         Stuart F. Delery, Assistant Attorney
                        General; Holly M. Smith, Senior
                        Litigation Counsel; Rosanne M.
                        Perry, Trial Attorney, Office of
                        Immigration Litigation, United
                        States Department of Justice,
                        Washington, D.C.


    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is GRANTED.

    Petitioner Bahahdur Singh Janjua, a native and citizen

of India, seeks review of a December 20, 2012 order of the

BIA, affirming the August 11, 2011 decision of an

Immigration Judge (“IJ”), which denied asylum, withholding

of removal, and relief under the Convention Against Torture

(“CAT”).   In re Bamadur Singh Janjua, No. A094 938 192

(B.I.A. Dec. 20, 2012), aff’g No. A094 938 192 (Immig. Ct.

N.Y. City Aug. 11, 2011).   We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

    Under the circumstances of this case, we review the

decisions of both the IJ and the BIA.   See Yun-Zui Guan v.

Gonzales, 

, 394 (2d Cir. 2005) (per curiam).

The applicable standards of review are well established.


                              2
See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.

Mukasey, 

, 165-66 (2d Cir. 2008) (per curiam).

I.   Credibility Determination

     For applications such as Janjua’s, which are governed

by the REAL ID Act, the agency may base a credibility

finding on an applicant’s demeanor, the plausibility of his

account, and inconsistencies in his statements, without

regard to whether they go “to the heart of the applicant’s

claim.”    8 U.S.C. § 1158(b)(1)(B)(iii).   “We defer [] to an

IJ’s credibility determination unless, from the totality of

the circumstances, it is plain that no reasonable

fact-finder could make such an adverse credibility ruling.”

Xiu Xia 

.

     The IJ found that Janjua was not credible because his

testimony was not persuasive enough; she did not make her

credibility determination under the REAL ID Act framework.

Indeed, the IJ did not acknowledge the REAL ID Act standard

and based her credibility determination on a single pre-REAL

ID Act case—Matter of Y-B-, 21 I. & N. Dec. 1136 (B.I.A.

1998).    In citing Matter of Y-B-, the IJ observed that the

weaker the applicant’s testimony the greater the need for

corroborative evidence.    However, she did not make any


                                3
findings regarding the sufficiency of Janjua’s corroborative

evidence, other than noting that his father’s letter omitted

any reference to the police’s continued efforts to locate

Janjua.   Janjua had also submitted: (1) a letter from Akali

Dal Mann’s leader confirming Janjua’s party membership and

the Indian government’s mistreatment of Sikhs; (2) a letter

from Janjua’s uncle stating that he had secured Janjua’s

release from detention; and (3) various media reports on

conditions for Sikhs in Punjab.    The IJ’s exclusive reliance

on Matter of Y-B- is further puzzling because that case did

not involve a credibility determination.    See 21 I. & N.

Dec. at 1137.

    In addition, while the BIA stated that the IJ’s

credibility determination should be affirmed based on all

relevant factors under the standards of the REAL ID Act, it

provided no further analysis and made no attempt to place

the IJ’s concerns over Janjua’s inability to recall certain

details into the rubric of the REAL ID Act.    Because the

agency failed to apply the governing legal standard, “it is

plain that no reasonable fact-finder could make such an

adverse credibility ruling.”   Xiu Xia 

;

see also Manzur v. U.S. Dep’t of Homeland Sec., 

281, 289 (2d Cir. 2007) (“This Court . . . will not hesitate

to vacate and remand where the BIA or IJ analysis is

insufficient to determine whether the correct legal standard

was applied.”).   We therefore vacate the agency’s decision

and remand for analysis of Janjua’s credibility under the

correct legal standard.

    As discussed below, the agency’s alternative burden

finding does not obviate the need for remand.

II. Past Persecution

    The BIA has defined persecution as a “threat to the

life or freedom of, or the infliction of suffering or harm

upon, those who differ in a way regarded as offensive.”

Matter of Acosta, 19 I. & N. Dec. 211, 222 (B.I.A. 1985),

overruled, in part, on other grounds, by INS v.

Cardoza-Fonseca, 

(1987); accord Ivanishvili v.

U.S. Dep’t of Justice, 

, 342 (2d Cir. 2006).      A

past persecution finding may be based on harm other than

threats to life or freedom, including non-life-threatening

violence and physical abuse, see Beskovic v. Gonzales, 

, 226 n.3 (2d Cir. 2006), but the harm must be

sufficiently severe to rise above “mere harassment,”

.       The difference between


                                5
harassment and persecution is “necessarily one of degree

that must be decided on a case-by-case basis.”    

agency erred in finding that Janjua failed to

establish past persecution because it ignored the custodial

nature of Janjua’s beatings.   See 

;

Poradisova v. Gonzales, 

, 77 (2d Cir. 2005)

(“[W]e require a certain minimum level of analysis from the

IJ and BIA opinions denying asylum, and indeed must require

such if judicial review is to be meaningful.”).   Janjua

testified that, during his detentions, he was beaten with

bamboo sticks, forced to crawl over sharp stones, tied to a

table with his hands bound to his ankles, and hooked up to

what can only be described as some sort of torture device.

The agency found that this harm did not rise to the level of

persecution because Janjua was detained briefly and did not

suffer serious injuries.   The agency, however, did not

appear to give any special consideration to the custodial

nature of Janjua’s beatings.   While we have “never held that

a beating that occurs within the context of an arrest or

detention constitutes persecution per se,” Qiu Liu v.

Holder, 

, 822 (2d Cir. 2011), “[t]he [agency]

must [] be keenly sensitive to the fact that a ‘minor

beating’ or, for that matter, any physical degradation
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designed to cause pain, humiliation, or other suffering, may

rise to the level of persecution if it occurred in the

context of an arrest or detention on the basis of a

protected ground,”     

(quoting

Tian-Yong Chen v. INS, 

, 128 (2d Cir. 2004)).

Because the agency’s decision does not reflect this

sensitivity, we remand for proper consideration of Janjua’s

claims of past harm.    This error also affects our ability to

review the agency’s finding that Janjua had not established

a well-founded fear, or a likelihood of future persecution,

because individuals who suffer past persecution benefit from

a presumption of future harm. See 8 C.F.R. §§ 1208.13(b)(1)

(asylum), 1208.16(b)(1)(i) (withholding of removal).

    For the foregoing reasons, the petition for review is

GRANTED and the case is remanded for further proceedings

consistent with this order.



                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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