Karki v. Holder

Filing

[10066850] Vacated and Remanded (Petition for review is Granted); Terminated on the merits after submissions without oral hearing; Written, signed, published; Judges Kelly, McKay (authoring) and O'Brien. Mandate to issue. [12-9550]

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FILED
Date Filed: 04/30/2013Court of Appeals
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United States
Tenth Circuit

April 30, 2013

PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

NARENDRA RAJ KARKI,
Petitioner,

No. 12-9550

v.
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.

ON PETITION FOR REVIEW FROM
THE BOARD OF IMMIGRATION APPEALS
Submitted on the briefs:*
Khagendra Gharti-Chhetry, New York, New York, for Petitioner.
Stuart F. Delery, Acting Assistant Attorney General, Civil Division, U.S. Department of
Justice; Ethan B. Kanter, Deputy Chief, National Security Unit, Office of Immigration
Litigation; Paul F. Stone, Trial Attorney, Office of Immigration Litigation, Civil Division,
U.S. Department of Justice, Washington, D.C., for Respondent.

Before KELLY, McKAY, and O’BRIEN, Circuit Judges.

McKAY, Circuit Judge.

*

After examining the briefs and the appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

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Petitioner Narendra Raj Karki, a native and citizen of Nepal, petitions for review
of a decision of the Board of Immigration Appeals (BIA) affirming an order of the
immigration judge (IJ) that denied his application for asylum and restriction on removal
under the Immigration and Nationality Act (INA) and protection under the United
Nations Convention Against Torture (CAT).
BACKGROUND
Petitioner entered the United States in October 2007 in order to present a paper at a
forestry conference in Oregon. His visitor’s visa authorized him to remain in the country
until November 6, 2007. On November 14, 2007, Petitioner filed an asylum application,
which was denied by an asylum officer and referred to an immigration judge. Removal
proceedings were initiated against him in February 2008. At the removal proceedings,
Petitioner renewed his application for asylum and sought restriction on removal under the
INA and protection under the CAT, claiming that he had suffered past persecution and
feared future persecution based on his political opinion and membership in a particular
social group. He testified at the January 20, 2010 hearing through an interpreter. His
father, Man Bahadur Karki, also testified at the hearing.
A. Factual Background
Petitioner was born in August 1961 in Nepal. He has a wife and two daughters,
who remained in Nepal when he came to the United States. At the time of the hearing,
his older brother was a lawful resident in the United States, having entered this country in
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1995 to complete his Ph.D. Petitioner’s younger brother had entered the United States in
2004, had been granted asylum, and was also completing a Ph.D. Petitioner also has a
sister, who apparently still lived in Nepal at the time of the hearing.
At the immigration hearing, Petitioner testified that he had experienced past
persecution and feared future persecution from Maoists in Nepal because the Maoists
opposed both his work on financial development projects and his support of the Nepali
Congress party. Petitioner, who has an MBA, worked for several years for a forestry and
national parks project under the United Nations Development Program (UNDP), where
his job was to train and organize the public in financial development and related projects.
As part of this work, Petitioner “used to talk about the human rights, and the
development,” and trained individuals on “how to bring income and how to develop the
market management.” (R. at 121.) He emphasized the importance of economic
development and “always like[d to] bring the awareness to the public as a democratic
principle.” (R. at 139.) In the course of his work for the UNDP, Petitioner drove to
different villages to speak to the villagers about these ideas. When he did so, he testified,
the Maoists would sometimes stop him on the road and harass him, and they “always told
[him] to stop talking about democracy and try not to help to bring income to the public.”
(R. at 122.) He testified that the Maoists demanded that he not talk to the public about
financial development, democracy, and other issues of public awareness because it was
“against . . . their principle” for the public to develop and earn money. (R. at 121.)
Petitioner testified that he was also persecuted by the Maoists based on his support
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of the Nepali Congress party, which promotes democratic principles and opposes the
communist ideology promoted by the Maoists. Petitioner testified that, due to his father’s
political background in the Nepali Congress party, he and his three siblings were all
involved in politics. He said that he was involved with the Nepali Student Union when he
was a student. After he finished his education, he was a district secretary or assistant in
the Makwanpur District for the Nepali Congress Party, assisting the president and vice
president of the party, producing pamphlets and other documents, and doing work for the
village. He spent eight to twelve hours a month working for the party. At the
immigration hearing, Petitioner originally testified that he was a member of the Nepali
Congress party. For corroboration, Petitioner produced a letter written by the district
chairman of the Nepali Congress Party which identified Petitioner’s father as an “active
party member” and Petitioner as a “regular supporter” of the party. (R. at 260.) The
letter stated that Petitioner regularly participated in various political assemblies and other
party events, provided financial support to the party, and was “a bona fide, very active
and devoted on democracy.” (R. at 260.) The immigration judge pointed out that this
letter did not identify Petitioner as a member of the party. Petitioner then testified that he
had been a member of the Nepali Congress party in earlier years, but his work with the
UNDP prevented him from maintaining active membership in the party after 1997.
However, he continued to support the party. Petitioner told the IJ that he had an old party
membership card, but he did not bring it to the United States because he was not planning
on applying for asylum when he came here.
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Petitioner testified that the Maoists made verbal and written requests for donations
from time to time. He refused these requests, but they sometimes took the money he had
in his pockets by force when he encountered them in the field. He said that the Maoists
also asked him for gasoline, stationary, and printing, but he never gave them these things.
He testified that the Maoists planted a flag on a rice field he owned in Nepal and took
control over it, then asked his father for 50,000 rupees to get the land back. Petitioner
said that he had learned about this incident shortly after he came to the United States in
October 2007.
Petitioner also testified about three specific instances of attempted or actual
physical violence directed at him or his family members. First, Petitioner testified that on
May 22, 2004, the Maoists exploded a bomb at his aunt and uncle’s house, killing his
aunt. Petitioner testified that the Maoists took responsibility for this attack and said it was
because his uncle had been a major in the Nepal Army and was a supporter of the Nepali
Congress Party. Petitioner provided newspaper articles corroborating this account.
Petitioner further testified that the Maoists called his home the next day when his wife
and his parents were there and threatened that his immediate family would meet the same
fate “if you do anything against us.” (R. at 124.)
Second, approximately five months later, on November 21, 2004, five of
Petitioner’s colleagues were killed when the UNDP vehicle in which they were riding
was bombed. Petitioner had intended to leave the office with them to go to the field, but,
at the last minute, his boss held him back to help with another task, and he thus escaped
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harm. Petitioner testified that he later learned the bomb was intended for him.
Specifically, he testified that the villagers told him the Maoists went to a village meeting
and told the people that Petitioner was the intended target of the attack, “and one day we
will get him.” (R. at 148.) Petitioner also provided a newspaper article reporting that
“Maoist cadres had ambushed and blown away Parsa Wildlife Reserve’s vehicle with
suspicions that Mr. Karki was traveling in the vehicle.” (R. at 209.) The article further
reported, “It has been learnt from his neighbors that Mr. Karki and his family have left his
home and hide in different places for safety.” (R. at 209.) Petitioner testified that he still
feels very bad when he sees the photographs of the aftermath of the attack and thinks of
the way his friends were killed. He is also still upset by his memories of the gruesome
scene, which he had to personally witness when he assisted at the scene after the attack.
He testified, “I still feel bad because one of our driver[s] was killed in that bomb, and his
body was hanging on the top of the tree, about 65 feet, and we had to take it out, piece by
piece, and I feel really agitated, . . . still thinking about that.” (R. at 123.)
Third, Petitioner testified about a physical assault he suffered on August 19, 2007.
While he was walking home in the evening after returning from field work, he was
attacked by three or four young Maoists who screamed, “Nepali government supporter is
coming, get him, get him.” (R. at 124.) He fell to the ground while attempting to run
away, and the boys dragged him and beat him, injuring his elbow, knees, shoulder, and
back. At the end of the attack, the boys said, “long live Maoist, . . . death for the
democratic supporters.” (R. at 125.) Petitioner testified that some neighbors heard the
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noise and saved him. They took him to the hospital, where he was treated and given pain
medication. Petitioner corroborated his account with an August 19 hospital document
stating “C/O: 1. Physical Assault. 2. Bruises on wrists and face. 3. Semi-uncons[c]ious.”
(R. at 216.) The document indicates that Petitioner was x-rayed, given an injection, and
advised to take medication upon discharge. Petitioner testified that he did not suffer any
permanent injuries from the assault.
Petitioner explained that he never sought help from the police in Nepal in
connection with those attacks because the Maoists had threatened his life if he reported
them to the police. He also thought it would be difficult for the police to actually help
him because the Maoists had power, so the police themselves were not secure.
Petitioner testified that he decided to apply for asylum after arriving in the United
States because his wife told him over the telephone that it would be dangerous for him to
return to Nepal. Petitioner testified he was on the Maoists’ “black list,” and “[w]hoever is
in the black list, those people will kill and make handicapped.” (R. at 126.) He testified
that it was not easy for his wife and children to remain in Nepal. He said the Maoists
called his house there from time to time, threatening his wife and asking, “where is your
husband? Where is that congress supporter?” (R. at 125.) His wife never told the
Maoists that he was in the United States. His wife and children sometimes stayed with
her parents or with friends, and, as a result, his children’s education had been affected.
Petitioner testified that the Maoists do not harm women and children directly, but he
considered his wife to be enduring mental torture because the Maoists regularly asked her
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where he was, suggested they might take his daughters to join in their group, and
repeatedly asked for money and food. Petitioner’s wife wanted him to bring her and the
children to the United States.
Petitioner testified that he filled out his asylum application himself, with help from
two friends of one of his brothers. In response to two specific questions about his or his
family’s involvement in organizations such as political parties, Petitioner typed only:
“My father is a retired government official and is a member of democratic party in
Nepal,” and “My father still associated with democratic party in Nepal and speaks for
democratic values including freely speaking and writing rights.” (R. at 272.) The IJ
asked him why he had not written on his asylum application that he had been a member
of the Nepali Congress Party as he testified at the hearing. Petitioner told the IJ he
thought the statement about his father would cover the whole family because his father
was the head of the family. He further stated that he might not have understood the
question.
Petitioner acknowledged, in response to questions from the IJ, that the State
Department report correctly stated that the Maoists tried to extort money from tourists
and anybody else they thought had money. But he testified the Maoists specifically
targeted him because he was a Nepali Congress Party supporter and because he had
helped “the public to increase the economic[] condition and . . . always educate[d] them
to self-sustain themselves, and that is against [the Maoists’] principle.” (R. at 138.) He
asserted that the Maoists were more interested in him for his political beliefs than for his
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money because he was “the democratic supporter and [he] always like[d to] bring the
awareness to the public as a democratic principle. And also [he] emphasize[d the need] to
develop the . . . economic. But communism is not that.” (R. at 139.) He said the Maoists
would not be satisfied if he gave them money, but would want him to join their
organization because he could bring others with him. He said he never considered joining
the Maoists because he supported the Nepali Congress Party and democracy. He did not
have a letter from the Maoists telling him in writing to stop his activities of advancing
democracy, but he said they called him and his wife on the phone and told him “verbally
[to] just leave the party and join their party.” (R. at 139.)
Petitioner’s seventy-four-year-old father entered the United States six months
before the immigration hearing on a tourist visa good for five years. Petitioner’s father
testified that Petitioner had been supporting and helping the Nepali Congress party since
he was a child, under his father’s guidance. Petitioner’s father testified that, when the
Maoists visited his house, they always asked about Petitioner, said he should tell
Petitioner to join and support the Maoists, and threatened to kill Petitioner if he did not
support the Maoists. He explained that, although he also feared the Maoists, he was
getting old and was “ready to die,” and he therefore did not worry about his own future.
(R. at 162.) However, he said he was very fearful and worried about his son’s life, and he
repeatedly begged the IJ to save Petitioner’s life. Petitioner also testified that his parents
faced less of a threat because of their age, since the Maoists do not directly attack the
elderly.
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B. The IJ’s Decision
After the January 20, 2010 hearing, the IJ ordered Petitioner removed to Nepal. In
his decision, the IJ reviewed the hearing testimony and Petitioner’s corroborating
evidence. The IJ found that Petitioner was “not a completely credible witness” because
he had embellished his testimony by stating he was a member of the Nepali Congress
party, when he was actually just a supporter. (R. at 55.) The IJ concluded that Petitioner
had embellished his testimony on this point “in order to cure one of the main problems
with his application for asylum, and that is whether or not there is a nexus between [his]
fear of return to Nepal, and one of the protected grounds.” (R. at 55-56.) The IJ stressed
“[t]he necessity of showing that connection” in order to qualify for asylum or restriction
on removal under the INA. (R. at 57.)
The IJ concluded that Petitioner had failed to establish a nexus between his alleged
fear of persecution and a statutorily protected ground. The IJ concluded that the Maoists
approached him only to extort money and recruit him for their organization. “In other
words, they are interested in his contribution to their organization; they are not interested
in harming him because of any political opinion or any social group membership.” (R. at
58.) The IJ also concluded that Petitioner failed to show past persecution because he was
not harmed in the bombing attack in which his coworkers were killed, and he suffered no
permanent injuries in the August 19 assault. The IJ reasoned that Petitioner’s father’s
willingness to return to Nepal also “tend[ed] to negate the reasonableness of any fear
which [Petitioner] may have.” (R. at 58.) Finally, the IJ concluded there was no evidence
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that the government of Nepal would harm Petitioner or acquiesce in his torture. The IJ
accordingly denied Petitioner any relief.
C. The BIA’s Decision
On appeal, the Board of Immigration Appeals rejected the IJ’s conclusion that
Petitioner was not completely credible. The BIA agreed that Petitioner had embellished
his testimony regarding his affiliation with the Nepali Congress party, but the BIA
concluded that this embellishment only affected Petitioner’s burden of persuasion, not his
credibility. However, the BIA agreed with the IJ that Petitioner was not entitled to relief
under the INA or CAT. The BIA agreed that the Maoists’ actions toward Petitioner were
motivated by their desire to extort money or recruit him, and the BIA concluded that
“[t]he record does not reflect that Maoists had the intention to persecute [Petitioner] even
partly because of his political opinion or a political opinion imputed to him.” (R. at 4.)
The BIA affirmed the IJ’s conclusion that the incidents described by Petitioner did not
rise to the level of past persecution. The BIA also agreed with the IJ that Petitioner’s
father’s willingness to return to Nepal negated the reasonableness of Petitioner’s asserted
fear of returning to Nepal. The BIA thus concluded that Petitioner was not eligible for
asylum or restriction on removal because he had not shown past persecution or a fear of
future persecution based on his political opinion. The BIA further concluded that
Petitioner was not eligible for relief under the CAT because he had not shown that the
government of Nepal was likely to torture him or acquiesce in his torture if he returned to
Nepal. The BIA accordingly dismissed Petitioner’s appeal. Petitioner petitions for
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review of that decision.
DISCUSSION
“In our review of the agency’s decision, we decide purely legal questions de
novo.” Ritonga v. Holder, 633 F.3d 971, 974 (10th Cir. 2011). “Agency findings of fact
are reviewed under the substantial evidence standard.” Id. Thus, “the administrative
findings of fact are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Under this standard, “our duty is to
guarantee that factual determinations are supported by reasonable, substantial and
probative evidence considering the record as a whole.” Uanreroro v. Gonzales, 443 F.3d
1197, 1204 (10th Cir. 2006) (internal quotation marks and brackets omitted). “Although
our review of the BIA’s conclusion that a person does not have a well-founded fear of
persecution is deferential, the BIA may not simply overlook evidence in the record that
supports the applicant’s case.” Espinosa-Cortez v. Att’y Gen., 607 F.3d 101, 113 (3d Cir.
2010). “[T]he BIA is not permitted simply to ignore or misconstrue evidence in the
asylum applicant’s favor.” Id. at 107. While we review the BIA’s decision, not the IJ’s,
we “may consult the IJ’s opinion to the extent that the BIA relied upon or incorporated
it.” Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir. 2007). “Finally, our review is
confined to the reasoning given by the [agency], and we will not independently search the
record for alternative bases to affirm.” Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir.
2004).
Because Petitioner applied for asylum following the enactment of the REAL ID
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Act in 2005, his burden of proof is set forth in 8 U.S.C. § 1158(b)(1)(B)(i). To qualify for
asylum, Petitioner must establish refugee status, which requires proof that his “‘race,
religion, nationality, membership in a particular social group, or political opinion was or
will be at least one central reason for persecuting [him].’” Dallakoti v. Holder, 619 F.3d
1264, 1268 (10th Cir. 2010) (quoting § 1158(b)(1)(B)(i)). “[T]he BIA [has] interpreted
‘one central reason’ to mean ‘the protected ground cannot play a minor role in the alien’s
past mistreatment or fears of future mistreatment. That is, it cannot be incidental,
tangential, superficial, or subordinate to another reason for harm.’” Id. (quoting In re
J-B-N & S-M, 24 I.&N. Dec. 208, 214 (BIA 2007)).
There are essentially three ways to establish refugee status: (1) showing a wellfounded fear of future persecution; (2) showing past persecution, which creates a
rebuttable presumption of a well-founded fear of future persecution; and (3) showing
“past persecution so severe as to demonstrate compelling reasons for being unwilling or
unable to return,” even without any danger of future persecution. Krastev v. INS, 292
F.3d 1268, 1270-71 (10th Cir. 2002) (internal quotation marks omitted). “Aliens basing
their asylum claims upon a well-founded fear of future persecution must show both a
genuine, subjective fear of persecution, and an objective basis by credible, direct, and
specific evidence in the record, of facts that would support a reasonable fear of
persecution.” Estrada-Escobar v. Ashcroft, 376 F.3d 1042, 1046 (10th Cir. 2004)
(internal quotation marks omitted). “Persecution is the infliction of suffering or harm
upon those who differ (in race, religion, or political opinion) in a way regarded as
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offensive, and requires more than just restrictions or threats to life and liberty.”
Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005) (internal quotation marks
omitted). “Persecution under this section means not only persecution by the government
but also by a non-governmental group that the government is unwilling or unable to
control.” Estrada-Escobar, 376 F.3d at 1046 (internal quotation marks omitted). “Once
an applicant has established his or her refugee status and thus eligibility for asylum, the
Attorney General exercises discretionary judgment in either granting or denying asylum.”
Krastev, 292 F.3d at 1271 (internal quotation marks omitted).
Restriction of removal likewise requires an applicant to prove persecution based
on one of the protected grounds. To be entitled to restriction on removal, an applicant
must show a “‘clear probability of persecution’ on account of one of the statutorily
protected grounds.” Uanrerero, 443 F.3d at 1202 (quoting Elzour, 378 F.3d at 1149).
“Applicants who cannot establish a well-founded fear under asylum standards will
necessarily fail to meet the higher burden of proof required for [restriction on] removal.”
Id.; see also 8 U.S.C. § 1231(b)(3). However, “[a]lthough a grant of asylum is in the
discretion of the Attorney General, restriction on removal is granted to qualified aliens as
a matter of right.” Ismaiel v. Mukasey, 516 F.3d 1198, 1204 (10th Cir. 2008).
Petitioner argues that the BIA and IJ erred in concluding he failed to show past
persecution, a well-founded fear of future persecution, and a nexus between the alleged
persecution and his political opinion. He also argues that the BIA and IJ erred in
concluding he had not established his entitlement to relief under the CAT. We address
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each argument in turn, beginning with Petitioner’s argument regarding the nexus between
the alleged Maoist persecution and his political opinion.
A. Nexus between persecution and political opinion
The BIA concluded that the Maoists’ actions toward Petitioner were motivated
only by their desire to extort money or recruit him and that “[t]he record does not reflect
that Maoists had the intention to persecute [Petitioner] even partly because of his political
opinion or a political opinion imputed to him.” (R. at 4.) We agree with Petitioner that
this factual determination is not “supported by reasonable, substantial and probative
evidence considering the record as a whole.” Uanrerero, 443 F.3d at 1204.
As Petitioner notes, the BIA rejected the IJ’s adverse credibility determination,
even though it agreed that Petitioner had embellished his testimony regarding his political
affiliation with the Nepali Congress party. However, after indicating that Petitioner’s
testimony was credible, the BIA improperly ignored substantial, probative testimony
demonstrating that the Maoists persecuted Petitioner based on his political opinion. See
Espinosa-Cortez, 607 F.3d at 107.
Petitioner testified that the Maoists were mainly interested in him because of his
pro-democracy beliefs, public advocacy efforts, and support of the Nepali Congress party.
His testimony regarding the Maoists’ regular harassment while he was working for the
UNDP illustrates that the Maoists were both aware of and unhappy with his work in
promoting financial development and democratic principles. Far from simply asking him
to provide money or join their organization, the Maoists “always told [Petitioner] to stop
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talking about democracy” and “about financial development and other public awareness”
issues that were “against . . . their principle.” (R. at 121-22.) When the Maoists took
responsibility for bombing Petitioner’s uncle’s house, they asserted that they did so based
on the uncle’s position in the Nepal Army and his support of the Nepali Congress. They
also warned Petitioner’s family that they would be treated likewise if they “d[id] anything
against [the Maoists].” (R. at 124.) Only a few months later, while Petitioner continued
his financial development work for the UNDP, a UNDP vehicle he should have been
traveling in was bombed by the Maoists, who told the villagers that Petitioner was their
intended target and that they would “get him” one day. (R. at 148.) Petitioner’s
testimony also established that the Maoist youths who assaulted him in August 2007
specifically targeted him based on his political opinions. They attacked him with cries of
“Nepali government supporter is coming, get him,” and, after the attack was over, they
said, “long live Maoist, . . . death for the democratic supporters.” (R. at 124-25.) The
Maoists also made threatening phone calls to Petitioner and his wife in which they
referred to Petitioner as “that congress supporter” and demanded that he “leave the party.”
(R. at 125, 139.)
The BIA simply ignored this substantial evidence of the political motivation for
the Maoists’ actions, relying instead on the fact that the Maoists also attempted to extort
Petitioner and recruit him to join their organization, as they do to many individuals in
Nepal. However, these extortion and recruitment efforts do not negate Petitioner’s
testimony that he was specifically targeted and harassed based on his political opinion.
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When the BIA overruled the IJ’s adverse credibility determination, it became obligated to
treat Petitioner’s testimony as credible, but it failed to do so. The BIA’s conclusion that
“[t]he record does not reflect that Maoists had the intention to persecute [Petitioner] even
partly because of his political opinion or a political opinion imputed to him” (R. at 4)
demonstrates that the BIA impermissibly either ignored or overlooked evidence in the
record that supported Petitioner’s case. See Espinosa-Cortez, 607 F.3d at 107, 113.
In its answer brief, the government relies on the Supreme Court’s decision in INS
v. Elias-Zacarias, 502 U.S. 478 (1992). In that case, the Supreme Court rejected the
Ninth Circuit’s conclusion that “a guerilla organization’s attempt to conscript a person
into its military forces necessarily constitutes persecution on account of political
opinion.” Id. at 481 (internal quotation marks and ellipsis omitted). The Court noted that
“[e]ven a person who supports a guerilla movement might resist recruitment for a variety
of reasons—fear of combat, a desire to remain with one’s family and friends, a desire to
earn a better living in civilian life, to mention only a few.” Id. at 482. The Court then
stated, “The record in the present case not only failed to show a political motive on EliasZacarias’ part; it showed the opposite. He testified that he refused to join the guerillas
because he was afraid that the government would retaliate against him and his family if
he did so.” Id. The Court rejected the view that “not taking sides with any political
faction is itself the affirmative expression of a political opinion.” Id. at 483. Moreover,
even if this were a political opinion, the Court concluded, the petitioner had not shown he
had a “‘well-founded fear’ that the guerillas will persecute him because of that political
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opinion, rather than because of his refusal to fight with them.” Id.
Under Elias-Zacarias, an individual’s refusal to join an organization is insufficient
in itself to demonstrate that the organization’s persecution was based on the individual’s
actual or imputed political opinion, rather than retaliation for the individual’s resistance.
See Ustyan v. Ashcroft, 367 F.3d 1215, 1217-18 (10th Cir. 2004). However, where other
factors are present, the individual’s political opinion may be a central reason for
persecution from a group that attempts to forcibly recruit him, even if the organization’s
initial targeting of the individual was not politically motivated. In Ustyan, we
distinguished the situation before us there—a mere refusal to fight—from the facts of the
case relied upon by the petitioner, Melkonian v. Ashcroft, 320 F.3d 1061 (9th Cir. 2003),
where the Ninth Circuit held that a petitioner had demonstrated a well-founded fear of
political persecution. In Melkonian, we noted, the petitioner had established that (1) “his
family felt bound to side with the Georgians”; (2) his family had “suppl[ied] Georgian
fighters with fruit and with money for weapons”; (3) “his father-in-law spoke out against
[the other side’s] tactics and in favor of Georgian Christianity”; and (4) the other side
“specifically targeted . . . men [of his ethnicity] to conscript and send to the front line
where casualties ordinarily are the highest.” Ustyan, 367 F.3d at 1217 (citing Melkonian,
320 F.3d at 1066-68) (internal quotation marks and brackets omitted). “This evidence
was specifically cited by the Ninth Circuit to distinguish the general rule of EliasZacarias, noted above, that coercive recruitment tactics and an applicant’s resistance
thereto do not reflect the kind of social/political animus necessary to support an asylum
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claim.” Id. By contrast, we noted, “Mr. Ustyan ha[d] not cited to any comparable
evidence in the record developed for this case.” Id.
The Third Circuit has likewise distinguished the general rule of Elias-Zacarias
where there was evidence of more than a mere refusal to concede to forcible recruitment
efforts. In Espinosa-Cortez, the Third Circuit held that a petitioner had demonstrated past
political persecution from the FARC, an anti-government terrorist organization in
Colombia, where the petitioner engaged in protracted resistance to FARC’s recruitment
efforts and “made his anti-FARC views known to his persecutors in rejecting their
advances.” Espinosa-Cortez, 607 F.3d at 112-13. The Third Circuit reasoned:
[E]ven if . . . Espinosa-Cortez was not initially targeted on account of
imputed political beliefs . . . he was eventually threatened, at least in part,
on account of his political beliefs. That is, a reasonable adjudicator would
be compelled to conclude that the FARC, by threatening a governmentaffiliated person after that person made his anti-FARC views known, had
threatened persecution at least in part on account of the victim’s political
beliefs.
Id. Other circuits have reached similar conclusions. See Martinez-Buendia v. Holder,
616 F.3d 711, 715-16 (7th Cir. 2010); Delgado v. Mukasey, 508 F.3d 702, 707-08 (2d Cir.
2007).
Here, Petitioner demonstrated much more than forcible recruitment efforts.
Indeed, from the start, the Maoists’ demands focused on Petitioner’s public statements
regarding democracy, financial development, and other political issues that were against
the Maoists’ communist principles. We do not see how these demands can be viewed as
anything other than politically motivated. Nor does the record support the view that the
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physical attacks on Petitioner and his family were motivated by recruitment or extortion
efforts rather than Petitioner’s and his family’s political opinions. Moreover, as in
Espinosa-Cortez, the Maoists were aware that Petitioner opposed them on political
grounds, since he publicly supported the Nepali Congress party and advocated democratic
and economic principles contrary to the Maoists’ principles. Indeed, the Maoists
specifically referred to Petitioner by his political opinion rather than by another label. For
instance, when they made threatening phone calls to his wife, they asked for “that
congress supporter” (R. at 125), not “that extortion resister.” The record as a whole
simply does not support the BIA’s conclusion that the Maoists were motivated only by
their desire to recruit Petitioner to their cause or extort money from him. Rather, the
record compels the conclusion that Petitioner’s political opinion was a central reason for
the Maoists’ actions. We therefore conclude that the agency’s decision cannot be upheld
on this ground.
B. Past persecution
We turn now to the BIA’s alternative conclusion that the Maoists’ actions were not
sufficiently severe to rise to the level of past persecution. Because the BIA relied on the
IJ’s more complete analysis on this issue, we look to the IJ’s opinion to determine the
basis for the agency’s decision. The IJ first considered the August 2007 attack on
Petitioner. After noting that Petitioner was released from the hospital after one or two
hours and suffered no permanent injury, the IJ concluded that this physical assault was
not sufficiently severe to qualify as persecution. The IJ then considered the November
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2004 car bombing that killed five of Petitioner’s colleagues. The IJ concluded this
bombing could not be considered persecution of Petitioner because he “did not personally
suffer anything from this attack.” (R. at 56.) The IJ thus disregarded this evidence in
determining whether the Maoists’ actions rose to the level of persecution.
The IJ erred in relying on the absence of permanent physical harm to find that
Petitioner was not persecuted by the Maoists. Nothing in the pertinent statutes or relevant
precedents suggests that an applicant must be permanently maimed in order to
demonstrate past persecution. The record shows that the beating Petitioner suffered
resulted in injuries serious enough to require medical care, with the hospital documents
indicating that Petitioner was rendered semi-unconscious in the attack. Regardless of
whether Petitioner was permanently injured in this attack, it does not seem to be a minor
incident that can be brushed off as insignificant. Cf. Witjaksono v. Holder, 573 F.3d 968,
977 (10th Cir. 2009) (holding that physical assaults did not rise to the level of persecution
where they did not “requir[e] medical attention”). Additionally, Petitioner presented both
testimony and a corroborating newspaper report to prove that he was the intended target
of the lethal car bombing. The fact that he survived this attempt on his life due to a lastminute change in his travel plans does not prevent him from relying on this incident to
prove he was persecuted by the Maoists. We agree with the Eleventh Circuit that “an
attack can be ‘physical’ and constitute a form of persecution even if the intended target of
the attack is not actually struck by the attacker’s projectile.” Mejia v. U.S. Att’y Gen., 498
F.3d 1253, 1257 n.7 (11th Cir. 2007); see also Begzatowski v. INS, 278 F.3d 665, 670 (7th
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Cir. 2002) (“[W]e previously have rejected attempts by the BIA to impose on asylum
applicants the additional burden of establishing permanent or serious injuries as a result
of their persecution.”). “Put simply, attempted murder is persecution.” Sanchez Jimenez
v. U.S. Att’y Gen., 492 F.3d 1223, 1233 (11th Cir. 2007). The IJ erred in disregarding the
attempt on Petitioner’s life as evidence of past persecution and in minimizing the import
of the physical assault he suffered.
The IJ and BIA also failed to consider other supporting evidence, such as
Petitioner’s testimony that the Maoists seized his rice field. “Confiscation of property has
been cited as one type of action that can cross the line from harassment to persecution.”
Ouda v. INS, 324 F.3d 445, 454 (6th Cir. 2003). Moreover, the BIA and IJ appear not to
have considered evidence of the threats Petitioner received both before and after he was
targeted in a lethal bombing and physically assaulted. While threats alone are insufficient
to constitute persecution, threats should be considered in assessing the cumulative impact
of all of the mistreatment a petitioner suffered. Mejia, 498 F.3d at 1257. “We do not
look at each incident in isolation, but instead consider them collectively, because the
cumulative effects of multiple incidents may constitute persecution.” Ritonga, 633 F.3d
at 975. In this case, we conclude the record compels the conclusion that Petitioner
suffered past persecution, giving rise to a rebuttable presumption of a well-founded fear
of future persecution.1

1

As noted above, a well-founded fear of future persecution is not required when
the level of past persecution is sufficiently severe. See Krastev, 292 F.3d at 1270-71. On
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C. Well-founded fear of future persecution
The BIA concluded that Petitioner had not demonstrated a well-founded fear of
future persecution because he had not shown past persecution and because his father’s
willingness to return to Nepal negated the reasonableness of his asserted fear of returning
to Nepal. As previously noted, the agency failed to consider significant relevant evidence
in assessing whether Petitioner faced past persecution. Moreover, the agency’s reliance
on Petitioner’s father’s testimony completely fails to consider the explanations given by
Petitioner and his father as to why Petitioner’s father, unlike Petitioner, was willing to
return to Nepal. Petitioner’s father did not state that it was safe for him to return to
Nepal—he simply expressed the fatalistic view that he did not mind returning to Nepal
because he was old and ready to die. This testimony cannot reasonably be taken to
support the view that Petitioner’s fear of returning to Nepal was unfounded.
The agency’s decision to deny Petitioner’s claims for asylum and restriction on
removal cannot be upheld on any of the grounds given by the BIA. We accordingly grant
the petition for review as to these claims. On remand, the agency should determine (1)
whether Petitioner’s past persecution was sufficiently severe that he did not need to
demonstrate a well-founded fear of future persecution, and, if not, (2) whether changed

appeal, the parties do not address whether the past persecution in this case would rise to
that level of severity. Because we hold that the BIA erred in concluding that Petitioner
had not shown a well-founded fear of future persecution, we do not address whether the
level of past persecution was sufficiently severe to make Petitioner eligible for asylum on
this ground as well.
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country conditions or the possibility of internal relocation are sufficient to rebut the
presumption that he has a well-founded fear of future persecution. See Krastev, 292 F.3d
at 1270-71.
D. Convention Against Torture
Petitioner also seeks review of the BIA’s denial of his CAT claim. “Article 3 of
the Convention Against Torture prohibits the return of an alien to a country where it is
more likely than not that he will be subject to torture by a public official, or at the
instigation or with the acquiescence of such an official.” Cruz-Funez v. Gonzales, 406
F.3d 1187, 1192 (10th Cir. 2005) (internal quotation marks and brackets omitted).
“‘Acquiescence of a public official requires that the public official, prior to the activity
constituting the torture, have awareness of such activity and thereafter breach his or her
legal responsibility to prevent such activity.’” Id. (quoting 8 C.F.R. § 1208.18(a)(7)).
This standard does not require “actual knowledge, or willful acceptance” by the
government. Id. (internal quotation marks omitted). “Rather, willful blindness suffices to
prove acquiescence.” Id. (internal quotation marks and brackets omitted).
The IJ and BIA concluded that Petitioner was not entitled to relief under the CAT
because he had not demonstrated that government officials would be likely to acquiesce
in his torture upon his return to Nepal. Petitioner argues that the agency’s analysis was
flawed because the IJ and BIA failed to consider relevant record evidence, particularly a
key State Department report. According to that report, the Maoists won a plurality of
seats in the 2008 elections, installed a Maoist prime minister, and proclaimed Nepal a
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federal democratic republic. The report indicates that “Maoists frequently employed
arbitrary and unlawful use of lethal force, including torture and abduction.” (R. at 176.)
Furthermore, “[d]uring [2008] Maoists committed 141 acts of torture, according to [the
Center for Victims of Torture, Advocacy Forum–Nepal]. The government failed to
conduct thorough and independent investigations of reports of security force or
Maoist/[Maoist-affiliated Youth Communist League] brutality and generally did not take
significant disciplinary action against those involved.” (R. at 179). Petitioner argues that
he is likely to be a victim of Maoist torture if he returns to Nepal. The Maoists have
shown continued interest in him, regularly asking his wife and father about his location
and issuing threats against him. Moreover, Petitioner argues, he has been placed on the
Maoists’ black list, which makes him likely to be killed or maimed by the Maoists if he
returns to Nepal.
In its answer brief, the government argues there is no evidence that the Nepali
government has enough information about Petitioner’s situation to be willfully blind to
any possible torture, since Petitioner admitted he did not inform government authorities
of his fear of harm from the Maoists. However, this argument essentially transforms the
willful blindness standard into an actual knowledge requirement. Petitioner presented
evidence that the government is aware of and does not prevent the Maoists’ frequent acts
of torture. Petitioner does not need to present evidence that the government knows of the
specific threat against him in order to show that the government would likely turn a blind
eye to his torture if he returned to Nepal. See Zheng v. Ashcroft, 332 F.3d 1186, 1196
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(9th Cir. 2003) (“The correct inquiry as intended by the Senate is whether a respondent
can show that public officials demonstrate ‘willful blindness’ to the torture of their
citizens by third parties, or as stated by the Fifth Circuit, whether public officials ‘would
turn a blind eye to torture.’” (quoting Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 355 (5th
Cir. 2002))). The case the government cites for support, Cruz-Funez v. Gonzales, 406
F.3d 1187 (10th Cir. 2005), is distinguishable. There, the petitioners faced a threat from a
particular individual, and there was no evidence that public officials were aware of or had
acquiesced in any previous acts of torture by this individual or his employees. See id. at
1192. Under those circumstances, the fact that the petitioners had not informed the
government of the individual’s threats against them prevented the conclusion that the
government would acquiesce in whatever actions the individual took against them. Id.
Here, on the other hand, Petitioner’s evidence that the government regularly fails to take
action to prevent or punish Maoist acts of torture makes this a very different case.
The record as a whole simply does not support the BIA’s conclusion that Petitioner
failed to show that public officials in Nepal would likely acquiesce in his torture by the
Maoists if he returns to Nepal. We accordingly grant the petition for review as to
Petitioner’s CAT claim as well. However, we note that there has been no agency factfinding on the likelihood that Petitioner will be tortured if he returns to Nepal, and on
remand the agency may consider whether Petitioner has shown a sufficient likelihood of
torture to be entitled to CAT relief.

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III. CONCLUSION
For the foregoing reasons, we GRANT the petition for review, VACATE the
BIA’s affirmance of the immigration judge’s order, and REMAND for further
proceedings in accordance with this opinion.

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