Chirajan Subedi v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 6, 2020
• Docket: 17-73360
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 6 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHIRAJAN SUBEDI, No. 17-73360

Petitioner, Agency No. A209-171-079

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted November 7, 2019 Portland, Oregon

Before: GILMAN,** PAEZ, and RAWLINSON, Circuit Judges.

Chirajan Subedi, a native and citizen of Nepal, petitions for the review of a

decision by the Board of Immigration Appeals (BIA). The decision affirmed the

Immigration Judge’s (IJ) denial of Subedi’s application for asylum, withholding of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. removal, and relief under the Convention Against Torture (CAT). We have

jurisdiction under 8 U.S.C. § 1252.

Our review is “limited to the BIA’s decision, except to the extent that the IJ’s

opinion is expressly adopted.” Khudaverdyan v. Holder, 778 F.3d 1101, 1105 (9th

Cir. 2015) (citation omitted). We review questions of law de novo, Rodriguez v.

Holder, 683 F.3d 1164, 1169 (9th Cir. 2012), and factual findings under the

substantial-evidence standard, Navas v. I.N.S., 217 F.3d 646, 657 (9th Cir. 2000)

(citing I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). Although the

substantial-evidence standard demands deference, “deference does not mean

blindness.” Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004). Reversal is

appropriate if “the evidence compels a contrary conclusion from that adopted by

the BIA.” Parada v. Sessions, 902 F.3d 901, 909 (9th Cir. 2018) (quoting Afriyie

v. Holder, 613 F.3d 924, 931 (9th Cir. 2010)).

We conclude that substantial evidence does not support the BIA’s finding

with regard to whether Subedi suffered past persecution in Nepal. The BIA also

erred as a matter of law by not considering the cumulative effect of the threats and

violence that Subedi suffered, by improperly placing the burden on Subedi to

demonstrate that relocation was unreasonable, and by failing to consider all of the

relevant evidence in support of his claim for relief under the CAT. We therefore

grant Subedi’s petition and remand this case to the BIA for further proceedings.

2 1. To determine whether Subedi “has made out a sufficient case of past

persecution,” we compare “the facts of this case to cases in which we have, and

have not, found past persecution.” See Ruano v. Aschroft, 301 F.3d 1155, 1159

(9th Cir. 2002). This court has consistently held “that physical harm constitutes

persecution,” Lopez v. Ashcroft, 366 F.3d 799, 803 (9th Cir. 2004) (citing Chand v.

I.N.S., 222 F.3d 1066, 1073 (9th Cir. 2000)), and that death threats, particularly

when accompanied by something more, such as extortion, violence, or close

“confrontations,” rise to the level of past persecution as well, Mashiri v. Ashcroft,

383 F.3d 1112, 1119 (9th Cir. 2004) (collecting cases). In the present case, Subedi

received multiple threats, including a death threat, and was beaten, kidnapped, and

extorted by the Maoists. This evidence, taken together, would be enough to

establish that Subedi suffered past persecution if the government was “unwilling or

unable to control” the Maoists. See Canales-Vargas v. Gonzales, 441 F.3d 739,

743 (9th Cir. 2006). The BIA explicitly declined to reach that latter issue.

We respectfully disagree with the dissent’s reliance on Hoxha v. Ashcroft,

319 F.3d 1179 (9th Cir. 2003), in reaching a contrary conclusion. In Hoxha, an

ethnic Albanian from the former Kosovo region of Serbia testified that he and a

friend had been beaten by an anonymous group of Serbs who overheard them

speaking Albanian. Id. at 1181. This court, in concluding that Hoxha had

introduced insufficient evidence to compel a finding of past persecution, focused

3 on the fact that the single incident of physical violence “was not connected with

any particular threat” and that there was “no evidence that the attackers knew who

Hoxha was or that they showed any continuing interest in him.” Id. at 1182.

The attacks against Subedi, on the other hand, were connected with

particular threats. Subedi was first attacked by the Maoists in November 2013, an

attack that took place after Subedi received a letter threatening retaliation against

him if he did not support the Maoists. That attack also took place after Subedi

ignored his attackers’ admonition not to vote when he tried to cross the path that

they had blocked.

Moreover, the evidence establishes that the Maoists knew Subedi’s identity

and demonstrated a continuing interest in him. During the next incident in 2016,

six to seven armed men, who identified themselves as Maoists, sought Subedi out

at his own home, kidnapped him, took him to the jungle, and threatened him with

death. Subedi escaped only by promising his attackers that he would pay them in

the future. But Subedi did not intend to keep that promise, and his failure to pay

supports Subedi’s assertion that the Maoists remained interested in finding him.

Subedi also introduced evidence suggesting that his attackers followed him to

Kathmandu. Taken as a whole, sufficient evidence demonstrates that Subedi’s

attackers knew his identity and displayed a continuing interest in him.

4 These facts distinguish Hoxha from the case at hand. Here, substantial

evidence does not support the BIA’s basis for denying Subedi the right to proceed

with his claim of past persecution.

2. If Subedi is able, on remand, to demonstrate that he suffered past

persecution, this would “give[] rise to a presumption of a well-founded fear of

future persecution and shift[] the evidentiary burden to the government to rebut

that presumption.” See Canales-Vargas, 441 F.3d at 743. The government would

then be required to show, by a preponderance of the evidence, that there has been

either a “fundamental change in circumstances,” such that Subedi no longer has a

well-founded fear of future persecution, or that Subedi could “avoid future

persecution by relocating to another part of [Nepal] . . . , and under all the

circumstances, it would be reasonable to expect [him] to do so.” See Boer-Sedano

v. Gonzales, 418 F.3d 1082, 1089 (9th Cir. 2005) (quoting 8 C.F.R.

§ 1208.13(b)(1)(i)(A)–(B)). But the BIA improperly placed the burden on Subedi

to demonstrate that relocation would be unreasonable. We thus remand this case to

allow the agency to determine whether the government has met its burden and to

consider whether Subedi is eligible for asylum or withholding of removal. See

I.N.S. v. Orlando Ventura, 537 U.S. 12, 16 (2002) (per curiam).

3. The BIA also erred as a matter of law in its review of Subedi’s claim for

relief under the CAT. As part of that review, the BIA must consider “all evidence

5 bearing on the likelihood of future torture . . . , including but not limited to past

torture, possibility of safe relocation, country evidence of flagrant human rights

violations, and other evidence regarding country conditions.” Barajas-Romero v.

Lynch, 846 F.3d 351, 364 (9th Cir. 2017) (citing 8 C.F.R. § 1208.16). This court

has repeatedly reversed where the agency has failed to consider all relevant

evidence. See Parada, 902 F.3d at 914–15 (collecting cases). In the present case,

the BIA failed to consider, among other things, Subedi’s testimony and evidence of

country conditions as they pertained to his claim for relief under the CAT.

Although the BIA did consider relocation, it erred in not clarifying the standard of

proof it applied to its relocation analysis in the context of the CAT claim. See

Barajas-Romero, 846 F.3d at 364 (“[A]lthough a petitioner bears the ultimate

burden to prove he would be tortured if returned to his country, the petitioner does

not bear the burden . . . to show that it is impossible to avoid torture by internally

relocating within a country.”). We therefore remand on this basis as well. See

Madrigal v. Holder, 716 F.3d 499, 509 (9th Cir. 2013) (remanding where the

BIA’s decision provided an inadequate basis for review).

For all of the above reasons, we GRANT Subedi’s petition and REMAND

this case for further proceedings consistent with this disposition.

6 FILED Subedi v. Barr, Case No. 17-73360 MAR 6 2020 Rawlinson, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I respectfully dissent from the majority’s granting of relief. In my view, the

majority’s outcome is inconsistent with the deferential substantial evidence

standard that governs our review of decisions made by the Board of Immigration

Appeals.

Although the majority cites the substantial evidence standard of review, it

tips its hand by “determin[ing] whether Subedi had made out a sufficient case of

past persecution” by comparing “the facts of this case to cases in which we have,

and have not, found past persecution.” Majority Disposition, p.3. Rather than

discussing how the BIA assessed the evidence, the majority takes it upon itself to

determine that the evidence “taken together would be enough to establish that

Subedi suffered past persecution.” Id.

Subedi recounted three incidents of persecution. The first, a letter informing

Subedi that “it would not be good for him” if he failed to join the Maoist party,

occurred in 2012. The second occurred in 2013, when Petitioner was hit with a

stick, resulting to a fracture to his forearm. The third occurred almost three years

later when a gun was pointed at Subedi, he was taken to the jungle near his home,

and money was demanded. Subedi was slapped, but sustained no serious injury

1 and never paid any money.

These events were undoubtedly disturbing. However, under our precedent

no finding of persecution was compelled. See Reyes v. Lynch, 842 F.3d 1125,

1137 (9th Cir. 2016) (explaining that under the substantial evidence standard the

evidence must compel a conclusion contrary to that reached by the agency). Our

precedent does not compel a conclusion contrary to that reached by the agency in

this case because our precedent has upheld a finding of no persecution with more

egregious facts. See e.g., Hoxha v. Ashcroft, 319 F.3d 1179, 1181 (9th Cir. 2003).

In that case, the petitioner described being “subjected to harassment, threats and

mistreatment since early childhood.” Id. at 1181. The petitioner was “repeatedly

told to leave the country . . . and that he would be harmed or killed if he chose to

stay.” Id. The petitioner was physically attacked by “a group of Serbs” resulting

in “extensive facial bruises and two broken ribs.” Id. We concluded that

“[a]lthough [the petitioner’s] experiences [were] disturbing and regrettable,” they

did not “evince actions so severe as to compel a finding of past persecution.” Id. at

1182. The same is true in this case. And because no showing of persecution is

compelled, Subedi bore the burden of showing inability to relocate. See Kaiser v.

Ashcroft, 390 F.3d 653, 659 (9th Cir. 2004) (noting generally that if an applicant

fails to establish past persecution, he bears the burden of showing inability to

2 relocate.) Finally, Subedi never stated in his briefing to this court that the agency

failed to consider all the evidence pertaining to relief under the Convention Against

Torture (CAT). Rather, Subedi maintained in his brief that he “satisfied his burden

for CAT relief.”

In sum, the majority has strayed far from the governing standard of review

in granting relief, an approach with which I cannot agree. I respectfully dissent.