The Ninth Circuit has reaffirmed that attempted rape is harm rising to the level of persecution. “The BIA erred in imposing evidentiary requirements of ongoing injury or treatment beyond the sexual assault itself in order to show persecution. Kaur’s credible testimony about the attempted gang rape is sufficient to show persecution. Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
The court also reversed the agency’s finding that the petitioner was not harmed by government actors. “The administrative record reflects that when Kaur’s persecution began, the Congress Party was already part of the government in Punjab: it held 46 out of 117 seats in the state legislature and was a key opposition party with the ability to shape laws and exert influence over the civil service. The Congress Party became the ruling party in the state of Punjab in March 2017, mere months after Congress Party agents attempted to gang rape Kaur, telling her that they were doing this to her because she was ‘working for the Mann Party’ and ‘not supporting [the Congress Party] in any way.’ Thus, some of the more severe forms of Kaur’s persecution occurred during the Congress Party’s electoral rise. Furthermore, the last known persecutory event against Kaur and her family occurred in 2018, a full year after the Congress Party’s electoral victory made it the official head of the state government. Finally, from the time Kaur appeared before the IJ through the present, the Congress Party has remained the leader of the Punjab government.” “[W]hen a petitioner suffers persecution at the hands of a major political party both during and after its rise to power from a minority voting bloc in the legislature to the head of government, the source of the persecution is the government itself.”
The full text of Kaur v. Wilkinson can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/29/18-73001.pdf