Bir Narayan Pun v. Merrick Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BIR NARAYAN PUN, No. 18-72492

Petitioner, Agency No. A213-081-170

v. MEMORANDUM* MERRICK GARLAND, U.S. Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted March 3, 2021** Pasadena, California

Before: HIGGINSON,*** HURWITZ, and COLLINS, Circuit Judges. Dissent by Judge COLLINS

Bir Narayan Pun, a native and citizen of Nepal, seeks review of a final order

of removal. The Board of Immigration Appeals (“BIA”) dismissed an appeal of an

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Stephen A. Higginson, United States Circuit Judge for the U.S. Court of Appeals for the Fifth Circuit, sitting by designation. immigration judge’s (“IJ”) order denying Pun’s applications for asylum,

withholding of removal, and protection under the Convention Against Torture

(“CAT”). We have jurisdiction under 8 U.S.C. § 1252.

We review the BIA’s legal conclusions de novo and its factual findings for

substantial evidence. Ayala v. Holder, 640 F.3d 1095, 1096-97 (9th Cir. 2011).

Under the substantial evidence standard, we may reverse the BIA only if the

evidence compels the conclusion that Pun meets the requisite standard for

obtaining relief. Reyes v. Lynch, 842 F.3d 1125, 1137 (9th Cir. 2016); 8 U.S.C. §

1252(b)(4)(B). We deny the petition for review.

1.a. Pun first argues that the BIA erred in concluding that he had not

established any past persecution was inflicted by the government or by sources the

government is unable or unwilling to control. We disagree. An asylum applicant

bears the burden of demonstrating eligibility for relief. 8 C.F.R. § 1208.13(a). The

applicant can demonstrate such eligibility by establishing either past persecution or

a well-founded fear of future persecution. 8 U.S.C. § 1101(a)(42)(A); de Leon-

Barrios v. I.N.S., 116 F.3d 391, 393 (9th Cir. 1997). To qualify as persecution, an

act must be inflicted by either the government or persons or organizations the

government is unable or unwilling to control. Barrios v. Holder, 581 F.3d 849, 854

(9th Cir. 2009).

Substantial evidence supports the IJ’s finding that Pun failed to show the

2 government’s unwillingness or inability to control the Maoist Communist Party

members who beat him. Pun stated before the IJ that he did not report his beatings

to the police. Although a failure to report is not fatal to an asylum claim, an

applicant should show that the government would have been unwilling or unable to

assist him if he had made a report. See Bringas-Rodriguez v. Sessions, 850 F.3d

1051, 1064-67 (9th Cir. 2017) (en banc). Despite Pun’s assertion to the IJ that

contacting the police would have been futile, Pun also testified that the police

would protect him if they saw him being harmed by Maoists, and stated in his

credible fear interview that the Nepali police were not working with the Maoists,

that they would not “look the other way” if they observed him being abused by

Maoists, and that a report would likely prompt a police investigation. The record

also shows that the Nepali government has arrested Maoists for extortion. The

record thus does not compel the conclusion that contacting the Nepali police would

have been futile, and the BIA did not err in concluding that Pun failed to establish

past persecution.

b. Pun next asserts that the BIA erred in concluding that he had failed to

establish a well-founded fear of future persecution because he did not establish that

it would be unreasonable for him to relocate within Nepal. We agree with the BIA.

Because Pun failed to establish past persecution, Pun did not merit a presumption

of future persecution. See 8 C.F.R. § 1208.16(b)(1)(i); Mutuku v. Holder, 600 F.3d

3 1210, 1213 (9th Cir. 2010). Absent such a presumption, Pun bore the burden of

establishing that it would be unreasonable for him to avoid harm by relocating

within Nepal. 8 C.F.R. § 1208.13(b)(3)(i); Hussain v. Rosen, 985 F.3d 634, 649

(9th Cir. 2021).

The BIA did not err in concluding that Pun failed to meet this burden. The

record shows that following his beatings, Pun continued to live in Nepal for over

two years without any subsequent incident involving Maoists, and the record does

not indicate that Maoists looked for Pun during that time. Further, Pun’s family

members, some of whom Pun described as “active supporters” of the Congress

Party, continue to reside in Nepal. See Tamang v. Holder, 598 F.3d 1083, 1087,

1094 (9th Cir. 2010). The evidence does not compel the conclusion that it would

be unreasonable for Pun to avoid harm by relocating within Nepal.

2. Because the BIA did not err in concluding that Pun has not met the burden

of proof for asylum, Pun has not met the higher burden for withholding of removal.

See Pedro-Mateo v. I.N.S., 224 F.3d 1147, 1150 (9th Cir. 2000).

3. Pun finally argues that the BIA erred in concluding that he had not

established a clear probability of future torture, as required for CAT relief. We

agree with the BIA’s conclusion. An applicant for CAT protection must show that

“it is more likely than not that he or she would be tortured if removed to the

proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). Torture is “an extreme

4 form of cruel and inhuman treatment” that is “inflicted by, or at the instigation of,

or with the consent or acquiescence of, a public official acting in an official

capacity or other person acting in an official capacity.” 8 C.F.R §§ 1208.18(a)(1)-

(2).

The record does not compel a conclusion that Pun is likely to suffer torture

by, or at the instigation of, or with the consent or acquiescence of, a Nepali official.

Although Pun asserted to the IJ that a police report would be futile, he previously

stated that police would investigate if he made a report. The record further reflects

that the Nepali government has previously arrested Maoists for engaging in

extortion. Additionally, the BIA properly considered Pun’s prior relocation within

Nepal as relevant to his risk of future torture. 8 C.F.R. 1208.16(c)(3)(ii).

The petition for review is DENIED.

5 Narayan Pun v. Garland, No. 18-72492 FILED APR 22 2021 COLLINS, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS In my view, substantial evidence does not support the agency’s conclusion

that Narayan Pun failed to establish past persecution. And because that error

vitiates the agency’s adverse findings concerning future persecution, I think that

the petition for review should be granted and the matter remanded to the Board of

Immigration Appeals (“BIA”). Because the majority concludes otherwise, I

respectfully dissent.

1. In 2013, Narayan Pun, who was active in Nepal’s Congress Party, was

attacked by Maoists, and he suffered injuries that left him in medical clinics for

more than a week. The Immigration Judge (“IJ”) expressly held that the harm

inflicted on Narayan Pun during this incident amounted to “persecution on account

of an enumerated ground.” But the IJ nonetheless held that Narayan Pun had not

experienced persecution within the meaning of the Immigration and Nationality

Act, because Narayan Pun had “not demonstrated that the harm he suffered was

done by the government or forces the government is unable or unwilling to

control.” In supporting the latter determination, the IJ reasoned that, although his

testimony was credible, Narayan Pun’s assertions “that he did not contact the

police because the Maoists hold government positions and that the police wouldn’t

do anything in any event” were contradicted both by Narayan Pun’s responses at his credible fear interview and by country reports for Nepal. The BIA summarily

affirmed on this issue, without addressing (or even showing any awareness of)

Narayan Pun’s challenge to the IJ’s analysis on this score in his brief before the

BIA. The majority upholds the agency’s determination as supported by substantial

evidence, see Memo. Dispo. at 3, but I disagree.

Neither of the asserted contradictions identified by the IJ holds water. First,

the IJ concluded that Narayan Pun’s testimony that the police would not have done

anything if he had reported the beating was “contradict[ed]” by his statement, at

his credible fear interview, that if the police were to “see someone harming me,

they will not look the other way.” But there is no contradiction at all between

(1) saying that the Nepali police would corruptly decline to adequately investigate

an already completed crime by Maoists that is reported to them and (2) saying that

the police would not stand by idly while a beating is occurring right in front of

them. Indeed, Narayan Pun explicitly drew this precise distinction when pressed

on the point in cross-examination at his hearing. The two propositions are simply

not contradictory, and the IJ’s conclusion that they were is unreasonable.

Second, the IJ also concluded that Narayan Pun’s testimony that the police

would not adequately investigate Maoist political violence was contradicted by two

country reports stating that, in the run up to the 2013 elections, the Nepali

government had responded with “vigorous action” to political violence associated

2 with Maoist “bandhs”—i.e., general strikes. But, once again, the assertion that

Nepali police would act to control open acts of politically-motivated street violence

is entirely consistent with Narayan Pun’s assertion that the police will respond to

violence that happens in front of them. The assertion that Nepali police acted to

control violent public demonstrations in 2013 simply does not “contradict” the

quite different assertion that, due to corruption, the Nepali police will not bother to

adequately investigate individual acts of Maoist violence that are reported to them

after the fact by ordinary citizens. The two reports cited by the IJ do not address

this latter question, and so they provide no support for the IJ’s unreasonable

finding of a “contradict[ion].” By contrast, the detailed country reports on Nepal

from the Canadian government (which are also in the record) do address this latter

point, and they describe evidence of political interference in police investigations

in Nepal, including by Maoists.

Because the IJ’s two stated reasons for his conclusion both fall apart on

closer examination, there is no substantial evidence to support the IJ’s

determination that Narayan Pun had not shown that the Nepali government was

unable or unwilling to control Maoist violence of the sort he experienced. See

Recinos De Leon v. Gonzales, 400 F.3d 1185, 1189 (9th Cir. 2005) (“We may

affirm the IJ only on grounds set forth in the opinion under review.”).

3 2. The agency’s error in its past-persecution holding prejudicially affected

its analysis of the issue of future persecution. For example, if the agency had

found that past persecution was established, then Narayan Pun would be entitled to

a presumption of a well-founded fear of future persecution and would be eligible

for asylum unless the Government carries its burden to rebut that presumption by

showing either (1) that there has been a “fundamental change” in country

circumstances or (2) that Narayan Pun could avoid future persecution by

reasonably relocating within Nepal. See 8 C.F.R. § 1208.13(b)(1)(ii). Because the

BIA instead explicitly placed the burden to show a well-founded fear of

persecution on Narayan Pun, this conclusion is also flawed and should be set aside.

Because, at a minimum, there is thus no basis to uphold the BIA’s denial of

asylum, the petition for review should have been granted and the matter remanded

to the BIA.

I respectfully dissent.