Khatiwada v. Garland

Opinion

20-1878 Khatiwada v. Garland BIA

Vomacka, IJ

A206 298 476

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 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 14th day of September, two thousand twenty-three. 5 6 PRESENT: 7 JOSEPH F. BIANCO, 8 BETH ROBINSON, 9 MYRNA PÉREZ, 10 Circuit Judges. 11 _____________________________________ 12 13 BISHWAREKHA KHATIWADA, 14 Petitioner, 15 16 v. 20-1878 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gary J. Yerman, Esq., New York, 24 NY. 25 26 FOR RESPONDENT: Brian Boynton, Acting Assistant 27 Attorney General; Keith I. 28 McManus, Assistant Director; Scott

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1 M. Marconda, Trial Attorney, 2 Office of Immigration Litigation, 3 United States Department of 4 Justice, Washington, DC. 5 6 UPON DUE CONSIDERATION of this petition for review of a

7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, and DECREED that the petition for review 9 is GRANTED. 10 Petitioner Bishwarekha Khatiwada, a native and citizen 11 of Nepal, seeks review of a May 27, 2020, decision of the BIA 12 affirming a May 18, 2018, decision of an Immigration 13 Judge (“IJ”) denying Khatiwada’s application for asylum, 14 withholding of removal, and relief under the Convention 15 Against Torture (“CAT”). In re Bishwarekha Khatiwada, No. 16 A206 298 476 (B.I.A. May 27, 2020), aff’g No. A206 298 476 17 (Immig. Ct. N.Y. City May 18, 2018). We assume the parties’ 18 familiarity with the underlying facts and procedural history. 19 I. Standard of Review 20 Under the circumstances, we have reviewed the IJ’s 21 decision as modified by the BIA, i.e., minus the grounds for 22 the adverse credibility determination that the BIA declined 23 to reach. See Xue Hong Yang v. U.S. Dep’t of Justice,

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1 426 F.3d 520, 522 (2d Cir. 2005). 1 The applicable standards 2 of review are well established. See Hong Fei Gao v. Sessions, 3 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse credibility 4 determination under substantial evidence standard); Singh v. 5 Garland, 11 F.4th 106, 115 (2d Cir. 2021) (reviewing 6 reasonable internal relocation determination under 7 substantial evidence standard). Although we treat factual 8 findings as “conclusive unless any reasonable adjudicator 9 would be compelled to conclude to the contrary,” 8 U.S.C. 10 § 1252(b)(4)(B), we do not “defer to unreasoned rulings, or 11 those based on legal error, faulty analysis, or misreadings 12 of the record,” Dong Gao v. BIA, 482 F.3d 122, 127 13 (2d Cir. 2007) (quoting Li Zu Guan v. INS, 453 F.3d 129, 136 14 (2d Cir. 2006)). 15 II. The Adverse Credibility Determination 16 The BIA upheld multiple findings in support of the IJ’s 17 adverse credibility determination, but the finding that 18 Khatiwada was “unable to explain unusual aspects of [a] 19 newspaper article, submitted to corroborate past events” was

1 Khatiwada’s challenge to the IJ’s inconsistency finding is unnecessary because the BIA did not rely on that finding to uphold the adverse credibility determination. See Xue Hong Yang, 426 F.3d at 522.

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1 critical to both decisions. Certified Admin. R. (“CAR”) at 3 2 (describing finding as the “most important[]”). 2 This 3 predominating finding was impermissibly “based upon 4 speculation,” so it does not “merit substantial evidence 5 deference.” Cao He Lin v. U.S. Dep’t of Just., 6 428 F.3d 391, 400 (2d Cir. 2005). 7 In support of his application for relief, Khatiwada 8 submitted an article, purportedly published by a Nepali 9 newspaper. It recounted that Khatiwada, the secretary of a 10 local division of the Nepali Congress Party, had received 11 death threats from Maoist Party members and left his village, 12 and that the chairman of the local division of the Nepali 13 Congress Party had been killed three days earlier by “an armed 14 unknown group.” CAR at 155. Though the Department of 15 Homeland Security (“DHS”) did not challenge the authenticity

2 The IJ explained that its other supportive findings were of lesser probative value. See CAR at 54–55 (“[T]he Court is not claiming that . . . the demeanor issue . . . is a major, clear, black and white point that indicates the respondent cannot be considered credible.”); id. at 53 (“This Judge tries to avoid basing a decision mainly on a demeanor finding because demeanor is a subjective matter[] . . . [a]nd . . . not very well recorded in our system of oral recording of the hearing which does not show how the respondent acted, looked, et cetera during his testimony.”); id. at 60 (stating that it would not “deny [Khatiwada’s] application as a matter of discretion for th[e]

reason” that he had used false documents to obtain a visa).

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1 of the article and the IJ did not find it to have been 2 fabricated, the IJ identified “several problems” with it: 3 “First, it was supposedly written while [Khatiwada] was in 4 hiding,” but includes his picture and “information about 5 where [Khatiwada] is living in hiding, which certainly would 6 be information [Khatiwada] would not want released,” 7 id. at 55; and “[f]urther, . . . [the article] was not written 8 in a natural way as we would expect it to be if it were a 9 true newspaper story” because it buries the lede by discussing 10 the threats to Khatiwada before describing a more recent and 11 “more significant” killing of a “higher ranking party 12 official,” id. at 55–56. 13 The IJ’s “strong impression that this newspaper story, 14 if it was ever published in a newspaper, was written to be 15 beneficial to the respondent,” id. at 56, was speculative in 16 the absence of any challenge to the evidence by DHS. In Jin 17 Chen v. United States Department of Justice, we remanded after 18 rejecting the agency’s determination that corroborating 19 evidence “appeared fabricated” as “grounded solely on 20 speculation and conjecture.” 426 F.3d 104, 115 21 (2d Cir. 2005). There, “the Government was in possession of 22 these documents for months prior to the merits hearing, and

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1 had ample opportunity to procure evidence to impeach them,” 2 but “procured none.” Id. Though the IJ raised skepticism 3 regarding aspects of the evidence, the Court found that 4 because the applicant’s testimony “was not implausible,” the 5 IJ’s determination necessarily relied upon impermissible 6 speculation because “the Government . . . failed to create a 7 sufficient record to support the IJ’s adverse finding.” Id. 8 Similarly, DHS here made no submission before the hearing, 9 did not challenge the article’s authenticity, conducted no 10 cross-examination on it, raised no “objections to any of the 11 evidence that was filed,” and offered “[no]thing [it] 12 want[ed] to point out about [Khatiwada’s] evidence.” 13 CAR at 141–42. 14 Further, the IJ’s perception that the newspaper article 15 “was not written in a natural way as we would expect it to be 16 if it were a true newspaper story published for general news 17 purposes,” id. at 55 (emphasis added), was also speculative, 18 reflecting the application of the IJ’s unsupported beliefs of 19 how a Nepalese journalist would have written the article. 20 While inferences based on “known practices . . . in the United 21 States” are plausible in “domestic case[s],” such a “basis is 22 lacking” where “[w]e have no knowledge about . . . and the

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1 record does not reflect that the IJ knew anything about . . . 2 practices in” a foreign country. Cao He Lin, 428 F.3d at 405. 3 To the extent the IJ faulted Khatiwada for his inability to 4 explain the journalist’s choices, “an applicant’s failure to 5 explain third-party omissions is less probative of 6 credibility than an applicant’s failure to explain his or her 7 omissions.” Hong Fei Gao, 891 F.3d at 81. At bottom, the IJ 8 presumed, without basis, how a Nepali newspaper article about 9 this subject matter should have been written, which 10 necessarily required speculation as to journalistic practices 11 in Nepal, information known to the journalist, and whether 12 facts had or had not been reported previously in the 13 newspaper. 14 Because the agency’s predominating finding in support of 15 its adverse credibility determination was based upon 16 speculation and was unsupported by substantial evidence, we 17 vacate the adverse credibility determination because “we are 18 not certain that the agency would have reached the same 19 conclusion as to [Khatiwada’s] credibility in the absence of 20 the errors it made.” Gurung v. Barr, 929 F.3d 56, 58 21 (2d Cir. 2019); see also Cao He Lin, 428 F.3d at 395.

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1 III. The Purported Reasonable Internal Relocation 2 Determination

3 The BIA interpreted that, “apart from the adverse 4 credibility finding, the Immigration Judge found the 5 respondent could relocate to Kat[h]mandu, where he had lived 6 for 9 months,” CAR at 4, and affirmed the denial of 7 Khatiwada’s application for relief on that independent basis 8 because Khatiwada failed to challenge the IJ’s purported 9 finding. Though the IJ made some factual findings that could 10 bear on a reasonable internal relocation analysis, it made no 11 legally sufficient finding that Khatiwada could reasonably 12 relocate in Nepal. Indeed, the IJ never used any derivation 13 of the words “reasonable,” “internal,” or “relocate.” See 14 Cao He Lin, 428 F.3d at 401 (requiring “explicit” finding). 15 Thus, it is not surprising that Khatiwada failed to appeal to 16 the BIA a purported finding that did not explicitly appear in 17 the IJ’s decision. Moreover, if the IJ intended to deny 18 Khatiwada’s application on this basis, its cursory findings 19 failed to apply the relevant factors. See 8 C.F.R. 20 § 1208.13(b)(3); Kone v. Holder, 596 F.3d 141, 148 21 (2d Cir. 2010) (remanding where IJ’s “cursory analysis 22 neglect[ed] to make the specific finding required by the 23 regulations of . . . the possibility of internal

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1 relocation”). Accordingly, to the extent the IJ intended to 2 render a reasonable internal relocation determination, we 3 vacate it. See Dong Gao, 482 F.3d at 127. 4 * * * 5 For the foregoing reasons, the petition for review is 6 GRANTED, the agency’s decisions are VACATED, and the case is 7 REMANDED. All pending motions and applications are DENIED 8 and stays VACATED.

9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, 11 Clerk of Court