17-1831 Bardewa v. Barr BIA Hom, IJ A200 921 020 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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 27th day of February, two thousand 5 nineteen. 6 7 PRESENT: 8 GUIDO CALABRESI, 9 RICHARD C. WESLEY, 10 RAYMOND J. LOHIER, JR., 11 Circuit Judges. 12 _____________________________________ 13 14 PARESH BARDEWA, 15 Petitioner, 16 17 v. 17-1831 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Daniel P. Weick, Wendy W.H. 25 Waszmer, New York, NY. 26 27 FOR RESPONDENT: Chad A. Readler, Acting Assistant 28 Attorney General; Nancy Friedman, 29 Senior Litigation Counsel; Kevin 30 J. Conway, Trial Attorney, Office 31 of Immigration Litigation, United 32 States Department of Justice, 33 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is GRANTED.
5 Petitioner Paresh Bardewa, a native and citizen of Nepal,
6 seeks review of a May 11, 2017 decision of the BIA affirming
7 a June 23, 2016 decision of an Immigration Judge (“IJ”)
8 denying Bardewa’s application for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Paresh Bardewa, No. A 200 921 020 (B.I.A. May
11 11, 2017), aff’g No. A 200 921 020 (Immig. Ct. N.Y. City June
12 23, 2016). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 the IJ’s decision as modified and supplemented by the BIA,
16 i.e., minus the IJ’s determination that Bardewa’s brother was
17 able to live in Nepal without persecution from the Maoists,
18 but considering the BIA’s conclusion that an individualized
19 analysis of conditions is not required. See Xue Hong Yang
20 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005);
21 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
22 standards of review are well established. See 8 U.S.C.
2 1 § 1252(b)(4)(B); Lecaj v. Holder, 616 F.3d 111, 114 (2d Cir.
2 2010).
3 An asylum applicant has the burden to establish past
4 persecution or a well-founded fear of future persecution on
5 account of race, religion, nationality, membership in a
6 particular social group, or political opinion. See 8 U.S.C.
7 §§ 1101(a)(42), 1158(b)(1)(B)(i). Because the agency
8 concluded that Bardewa established past persecution based on
9 his political opinion (his association with the Nepali
10 Congress Party and pro-democracy views), he was entitled to
11 a presumption of a well-founded fear of future persecution on
12 the basis of his past harm. 8 C.F.R. § 1208.13(b)(1). The
13 agency denied relief based on its conclusion that the
14 Government had rebutted that presumption. As discussed
15 below, we remand because the BIA applied the wrong legal
16 standard and failed to fully consider the totality of the
17 country conditions evidence.
18 The Government can rebut the presumption of a well-
19 founded fear of future persecution by establishing that
20 “[t]here has been a fundamental change in circumstances such
21 that the applicant no longer has a well-founded fear of
22 persecution.” 8 C.F.R. § 1208.13(b)(1)(i), (ii); see also
23 Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 399 (2d 3 1 Cir. 2005). The Government must prove the fundamental change
2 by a preponderance of the evidence. Lecaj, 616 F.3d at 114-
3 15. In determining whether the Government has met its
4 burden, the agency “must conduct an individualized analysis
5 of how changed conditions would affect the specific
6 petitioner’s situation,” Passi v. Mukasey, 535 F.3d 98, 102
7 (2d Cir. 2008) (internal quotation marks omitted, emphasis
8 added), and provide a reasoned basis for its finding that the
9 presumption of a well-founded fear of persecution is no longer
10 justified, Niang v. Mukasey, 511 F.3d 138, 148-49 (2d Cir.
11 2007). The agency cannot ignore significant information
12 favorable to the applicant or rely on general changes in
13 country conditions without conducting an individualized
14 analysis. Tambadou v. Gonzales, 446 F.3d 298, 303–04 (2d
15 Cir. 2006).
16 The BIA misstated the law by ruling that an
17 individualized analysis of Bardewa’s situation was not
18 necessary. Certified Administrative Record at 4 (“[T]he
19 necessity of an individualized analysis . . . is not
20 applicable in the Second Circuit”). To the contrary, we have
21 consistently required an individualized analysis. See Lecaj,
22 616 F.3d at 115; Passi, 535 F.3d at 103-04; Tambadou, 446 at
23 303–04. “This individualized analysis may justify different 4 1 outcomes for applicants from the same country, even where the
2 agency considers the same documentary evidence.” Lecaj, 616
3 F.3d at 115 (emphasis added). To that end, we have cautioned
4 against overreliance on State Department country reports
5 demonstrating “changed conditions” absent an analysis of the
6 specific petitioner’s situation. Tambadou, 446 F.3d at 303-
7 04.
8 In addition to misstating the law, the BIA provided
9 insufficient reasoning for its ruling. It was not enough to
10 cite an unpublished Fourth Circuit decision finding a
11 fundamental change, see Gurung v. Lynch, 667 F. App’x 389
12 (4th Cir. 2016), because Gurung provides no facts from which
13 we can conclude that the same individual circumstances were
14 alleged. Even assuming the Fourth Circuit considered the
15 same documentary evidence that Bardewa presented, the BIA’s
16 reliance on the decision fails to account for individual
17 circumstances. See Lecaj, 616 F.3d at 115. Moreover, the
18 BIA’s decision does not reflect an assessment of the evidence
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17-1831 Bardewa v. Barr BIA Hom, IJ A200 921 020 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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 27th day of February, two thousand 5 nineteen. 6 7 PRESENT: 8 GUIDO CALABRESI, 9 RICHARD C. WESLEY, 10 RAYMOND J. LOHIER, JR., 11 Circuit Judges. 12 _____________________________________ 13 14 PARESH BARDEWA, 15 Petitioner, 16 17 v. 17-1831 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Daniel P. Weick, Wendy W.H. 25 Waszmer, New York, NY. 26 27 FOR RESPONDENT: Chad A. Readler, Acting Assistant 28 Attorney General; Nancy Friedman, 29 Senior Litigation Counsel; Kevin 30 J. Conway, Trial Attorney, Office 31 of Immigration Litigation, United 32 States Department of Justice, 33 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is GRANTED.
5 Petitioner Paresh Bardewa, a native and citizen of Nepal,
6 seeks review of a May 11, 2017 decision of the BIA affirming
7 a June 23, 2016 decision of an Immigration Judge (“IJ”)
8 denying Bardewa’s application for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Paresh Bardewa, No. A 200 921 020 (B.I.A. May
11 11, 2017), aff’g No. A 200 921 020 (Immig. Ct. N.Y. City June
12 23, 2016). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 the IJ’s decision as modified and supplemented by the BIA,
16 i.e., minus the IJ’s determination that Bardewa’s brother was
17 able to live in Nepal without persecution from the Maoists,
18 but considering the BIA’s conclusion that an individualized
19 analysis of conditions is not required. See Xue Hong Yang
20 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005);
21 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
22 standards of review are well established. See 8 U.S.C.
2 1 § 1252(b)(4)(B); Lecaj v. Holder, 616 F.3d 111, 114 (2d Cir.
2 2010).
3 An asylum applicant has the burden to establish past
4 persecution or a well-founded fear of future persecution on
5 account of race, religion, nationality, membership in a
6 particular social group, or political opinion. See 8 U.S.C.
7 §§ 1101(a)(42), 1158(b)(1)(B)(i). Because the agency
8 concluded that Bardewa established past persecution based on
9 his political opinion (his association with the Nepali
10 Congress Party and pro-democracy views), he was entitled to
11 a presumption of a well-founded fear of future persecution on
12 the basis of his past harm. 8 C.F.R. § 1208.13(b)(1). The
13 agency denied relief based on its conclusion that the
14 Government had rebutted that presumption. As discussed
15 below, we remand because the BIA applied the wrong legal
16 standard and failed to fully consider the totality of the
17 country conditions evidence.
18 The Government can rebut the presumption of a well-
19 founded fear of future persecution by establishing that
20 “[t]here has been a fundamental change in circumstances such
21 that the applicant no longer has a well-founded fear of
22 persecution.” 8 C.F.R. § 1208.13(b)(1)(i), (ii); see also
23 Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 399 (2d 3 1 Cir. 2005). The Government must prove the fundamental change
2 by a preponderance of the evidence. Lecaj, 616 F.3d at 114-
3 15. In determining whether the Government has met its
4 burden, the agency “must conduct an individualized analysis
5 of how changed conditions would affect the specific
6 petitioner’s situation,” Passi v. Mukasey, 535 F.3d 98, 102
7 (2d Cir. 2008) (internal quotation marks omitted, emphasis
8 added), and provide a reasoned basis for its finding that the
9 presumption of a well-founded fear of persecution is no longer
10 justified, Niang v. Mukasey, 511 F.3d 138, 148-49 (2d Cir.
11 2007). The agency cannot ignore significant information
12 favorable to the applicant or rely on general changes in
13 country conditions without conducting an individualized
14 analysis. Tambadou v. Gonzales, 446 F.3d 298, 303–04 (2d
15 Cir. 2006).
16 The BIA misstated the law by ruling that an
17 individualized analysis of Bardewa’s situation was not
18 necessary. Certified Administrative Record at 4 (“[T]he
19 necessity of an individualized analysis . . . is not
20 applicable in the Second Circuit”). To the contrary, we have
21 consistently required an individualized analysis. See Lecaj,
22 616 F.3d at 115; Passi, 535 F.3d at 103-04; Tambadou, 446 at
23 303–04. “This individualized analysis may justify different 4 1 outcomes for applicants from the same country, even where the
2 agency considers the same documentary evidence.” Lecaj, 616
3 F.3d at 115 (emphasis added). To that end, we have cautioned
4 against overreliance on State Department country reports
5 demonstrating “changed conditions” absent an analysis of the
6 specific petitioner’s situation. Tambadou, 446 F.3d at 303-
7 04.
8 In addition to misstating the law, the BIA provided
9 insufficient reasoning for its ruling. It was not enough to
10 cite an unpublished Fourth Circuit decision finding a
11 fundamental change, see Gurung v. Lynch, 667 F. App’x 389
12 (4th Cir. 2016), because Gurung provides no facts from which
13 we can conclude that the same individual circumstances were
14 alleged. Even assuming the Fourth Circuit considered the
15 same documentary evidence that Bardewa presented, the BIA’s
16 reliance on the decision fails to account for individual
17 circumstances. See Lecaj, 616 F.3d at 115. Moreover, the
18 BIA’s decision does not reflect an assessment of the evidence
19 that the IJ relied on to evaluate how the 2013 elections and
20 resultant regime change in Nepal affected Bardewa’s specific
21 situation. Notably, the 2015 State Department report and
22 other documentary evidence in the record reflect that
23 journalists in Nepal have been targeted for harassment and 5 1 violence by Maoist supporters even after the 2013 election.
2 Bardewa has published several articles critical of Maoists,
3 some while living in the United States, and his most recent
4 articles prompted Maoists to threaten his family in Nepal.
5 The BIA’s conclusory analysis does not account for this
6 evidence. See Niang, 511 F.3d at 148-49.
7 Accordingly, we grant the petition and remand for the
8 BIA to determine whether the evidence supports the IJ’s
9 conclusion that there has been a fundamental change in
10 conditions in Nepal for someone in Bardewa’s specific
11 circumstances. Remand as to Bardewa’s withholding of removal
12 and CAT claims is also granted because those claims were
13 denied based on the same error. See Lecaj, 616 F.3d at 119-
14 20. Because we remand on this basis, we decline to reach
15 Bardewa’s claim of humanitarian asylum. We note, however,
16 that in addressing that claim, the BIA relied solely on a
17 conclusion that the harm was not sufficiently severe and
18 appears to have overlooked Bardewa’s alternative allegation
19 that he would “suffer other serious harm.” 8 C.F.R.
20 § 1208.13(b)(1)(iii)(B).
6 1 For the foregoing reasons, the petition for review is
2 GRANTED.
3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, 5 Clerk of Court