NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUKHJIVAN SINGH MINHAS, AKA 

Sonu, 

Petitioner, 

 v. 

MATTHEW G. WHITAKER, Acting 

Attorney General, 

Respondent.

No. 16-73025 

Agency No. A205-585-875 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted December 18, 2018

San Francisco, California

Before: GOULD and BERZON, Circuit Judges, and BLOCK,** District Judge.

Sukhjivan Singh Minhas, a native and citizen of India, petitions for review 

of an order of the Board of Immigration Appeals (“BIA”), denying his application 

for asylum, withholding of removal, and protection under the Convention Against 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Frederic Block, United States District Judge for the 

Eastern District of New York, sitting by designation.

FILED

JAN 9 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Torture (“CAT”). We review the agency’s findings for substantial evidence.

Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We deny the 

petition with respect to his CAT claim, grant the petition with respect to his asylum

claim, and remand for further proceedings on his withholding of removal claim and 

for the BIA to review the Immigration Judge’s (“IJ”) adverse credibility finding. 

1. The BIA did not review the IJ’s adverse credibility finding, instead 

assuming Minhas’s credibility but denying his claims for relief on the merits. With 

respect to Minhas’s asylum and withholding of removal claims, the BIA held that 

Minhas has failed to present sufficient evidence of persecution.

To demonstrate past persecution, an applicant must establish that “(1) his 

treatment rises to the level of persecution; (2) the persecution was on account of 

one or more protected grounds; and (3) the persecution was committed by the 

government, or by forces that the government was unable or unwilling to control.” 

Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010). Although 

persecution is “an extreme concept that does not include every sort of treatment 

our society regards as offensive,” Nagoulko v. I.N.S., 333 F.3d 1012, 1016 (9th Cir.

2003), “the cumulative effect of several incidents may constitute

persecution,” Krotova v. Gonzales, 416 F.3d 1080, 1084 (9th Cir. 2005) (internal 

quotation marks omitted). 

As Minhas’s testimony, which was assumed to be credible indicates, the 
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Congress Party attacked him on multiple occasions, one of which left him injured 

and on bed rest for weeks. Minhas was also told in explicit terms during and after 

the attacks that he would be killed for his father’s political actions. Following the 

attacks and threats, his persecutors threw stones at his home and visited his job.

Although each individual attack or threat made on the basis of his religion and 

imputed political opinion may have not risen to the level of persecution, the BIA’s 

decision did not meaningfully address the cumulative effect of these actions.

Taking into account the cumulative effect of the attacks on and threats to Minhas, 

the BIA’s decision concerning past persecution is not supported by substantial 

evidence.

We therefore grant Minhas’s petition as to his asylum claim and remand for 

further proceedings as to: (1) whether the government has demonstrated either that 

conditions in India have changed such that Minhas no longer has a well-founded 

fear of future persecution, or that relocation is possible, see 8 C.F.R. §

208.13(b)(1)(i), (ii); (2) whether Minhas satisfies the higher standard of likely 

future persecution required for withholding of removal, see Zehatye v. Gonzales, 

453 F.3d 1182, 1190 (9th Cir. 2006), as the claim was not waived on appeal; and 

(3) the IJ’s adverse credibility finding, because the BIA did not reach that issue. 

2. With respect to Minhas’s claim for protection under the CAT, we 

conclude that substantial evidence supported the BIA’s denial of relief. An 
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applicant for protection under the CAT bears the burden of “establish[ing] that it is 

more likely than not that he . . . would be tortured if removed” to his country of 

origin. Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir. 2005) (quoting 8 C.F.R. § 

208.16(c)(2)). “Torture is defined, in part, as ‘any act by which severe pain or 

suffering, whether physical or mental, is intentionally inflicted on a person . . . for 

any reason based on discrimination of any kind.’” Avendano-Hernandez v. Lynch, 

800 F.3d 1072, 1079 (9th Cir. 2015) (quoting 8 C.F.R. § 1208.18(a)). Although the 

attacks and threats perpetrated against Minhas were substantial and amounted to 

persecution, they were not so severe as to constitute torture.

3. Finally, Minhas argues that the BIA abused its discretion in affirming the 

IJ’s discounting of four pieces of evidence: affidavits from his mother and father, a 

psychological evaluation from a social worker, and a medical and psychological 

evaluation from a physician. Minhas contends that the agency, in effect, did not 

afford any weight to these documents, despite its purported assignment of “little 

weight.”

The record reflects that the agency did not, in fact, afford any weight to the 

documents, as it questioned the validity of each piece of evidence. As support for 

his adverse credibility finding, the IJ concluded that it was “unclear . . . how valid 

[the parents’] affidavits are because of the similarities,” and expressed “serious 

concerns” as to whether the medical professionals prepared their evaluations. 
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Although the IJ’s credibility finding is not before us, the IJ’s reasoning regarding 

the affidavits, and the BIA’s adoption of that reasoning regarding the affidavits,

reflect that the agency, in effect, rejected the evidence as invalid. 

Our case law dictates that the agency, in “rejecting the validity of a 

document admitted into evidence, . . . must provide a specific, cogent reason for 

rejecting it, and this reason must bear a legitimate nexus to that rejection.” Zahedi 

v. I.N.S., 222 F.3d 1157, 1165 (9th Cir. 2000). With respect to the affidavits from 

Minhas’s mother and father, the BIA adopted the IJ’s reasoning for effectively 

rejecting them, concluding that the affidavits were “similar in wording and style, 

and failed to explain why Congress Party members would seek to harm the 

respondent when his father, his mother, and sister, all of whom remain in India, 

have not experienced harm since he left that country.” 

Although the BIA offered a specific, cogent reason for affirming the IJ’s 

finding, the reason does not bear a legitimate nexus to discrediting them entirely or 

even largely. Although the affidavits contain sentences that are similar and in some 

instances identical, those similarities are explained in part by the fact that Minhas’s 

parents do not speak English and the same third party translated the affidavits into 

English for them, and in part by the fact that there is substantial overlap in the 

events recounted. In other respects, the declarations are quite different, although 

the overall linguistic styles are similar. It is commonplace in litigation for formal 
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declarations, such as those from Minhas’s parents, to be drafted for and then 

reviewed by the declarants, and to appear, to a degree, similar in style and 

wording.

Furthermore, the fact that the affidavits did not answer the agency’s

remaining questions regarding Minhas’s persecution is not a legitimate basis for 

rejecting the accounts of persecution and potential future harm that were, in fact,

discussed. Although the affidavits did not address every facet of Minhas’s 

persecution claim and specifically did not provide a detailed explanation as to why 

Minhas was the primary target in his family, they did largely confirm Minhas’s

factual account of past persecution and threats of future harm. Thus, the BIA’s two 

proffered reasons—that the affidavits were similar in wording and style and did not 

include an explanation the BIA deemed important— are not legitimate bases for 

deeming the affidavits invalid. We conclude that the BIA abused its discretion and 

remand for the agency fully to consider the affidavits from Minhas’s parents when

assessing Minhas’s credibility and withholding of removal claim. 

With respect to the evaluations from the social worker and physician, the 

BIA adopted the IJ’s conclusion that both pieces of documentary evidence 

provided an “inadequate foundation” for their medical conclusions and are 

questionable because neither medical professional testified. The BIA likewise

adopted the IJ’s independent reasons for questioning the documentary evidence 
7 

from the medical professionals—that is, that the physician’s description of 

Minhas’s stomach pain as lingering conflicted with Minhas’s testimony at his 

immigration hearing, and the social worker specialized in chemical dependency, a 

field of expertise that has no bearing on Minhas’s claims. 

We need not address every rationale provided by the agency, as two of the 

provided reasons are sufficient with respect to the other two affidavits. First, we 

agree with the agency that the physician’s description of Minhas’s pain in his

evaluation conflicted with Minhas’s testimony at his immigration hearing.

Minhas’s testified that “[i]t took [him] about two to three weeks to fully recover 

because of the injuries.” Second, we likewise agree that the social worker’s 

evaluation did not provide an adequate foundation for its diagnostic conclusions.

Both of these reasons are specific and cogent and bear a legitimate nexus to the 

rejection of the evidence. The BIA therefore did not abuse its discretion as to these 

pieces of documentary evidence.

PETITION FOR REVIEW DENIED in part; GRANTED in part; 

REMANDED.