Pratima Bhattarai v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 2, 2022
• Docket: 21-70530
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 2 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PRATIMA BHATTARAI, No. 21-70530

Petitioner, Agency No. A209-050-765

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 14, 2022** San Francisco, California

Before: McKEOWN and W. FLETCHER, Circuit Judges, and VRATIL,*** District Judge.

Pratima Bhattarai, a native and citizen of Nepal, petitions for review of a

decision by the Board of Immigration Appeals (“BIA”) dismissing her appeal from

* 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 Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by designation. the immigration judge’s (“IJ”) denial of her applications for asylum, withholding

of removal, and protection under the Convention Against Torture (“CAT”). We

have jurisdiction under 8 U.S.C. § 1252 and grant in part and deny in part the

petition for review.

Substantial evidence does not support the agency’s denial of Bhattarai’s

asylum and withholding applications. The agency erred in concluding there was

no nexus between the February 2013 assault and Bhattarai’s political opinion.1

Bhattarai worked for a British non-governmental organization (“NGO”). The

NGO “was not a political organization.” Bhattarai testified credibly that a “well-

known” Maoist named Harisham confronted Bhattarai in a village meeting and

demanded that she disburse NGO funds to his party. Bhattarai refused and

“public[ly] announced that [her NGO] would not give his political organization, or

any other political organization, money.” Later that evening, Bhattarai was

attacked. The IJ never determined the identity of Bhattarai’s attacker, explaining:

“Assuming that Harisham did in fact [attack Bhattarai], there is no indication that

his motivation for targeting Bhattarai was anything other than anger about not

receiving money.” But the IJ apparently overlooked that Bhattarai voiced a

1 Substantial evidence supports the agency’s determination that Bhattarai’s first proposed particular social group, managers of CWSN, is not immutable and is consequently not cognizable. Substantial evidence also supports the agency’s determination that Bhattarai was not threatened and harmed on account of membership in her second proposed social group, Nepalese women.

2 political opinion to Harisham, one of political neutrality. See Bolanos-Hernandez

v. INS, 767 F.2d 1277, 1286 (9th Cir. 1984) (“Choosing to remain neutral is no less

a political decision than is choosing to affiliate with a particular political faction.”).

The fact Bhattarai expressed this opinion while refusing to give Harisham money

does not rob it of its political character. See Gonzales-Neyra v. INS, 122 F.3d

1293, 1295–96 (9th Cir. 1997), amended by 133 F.3d 726 (9th Cir. 1998) (order);

cf. Buckley v. Valeo, 424 U.S. 1, 16–17 (1976).

The agency’s determination that the Nepalese government is able and

willing to control the Maoist cadres also rests on legal error because the agency

relied upon the “gap in proof” framework set out in Rahimzadeh v. Holder, 613

F.3d 916, 922 (9th Cir. 2010), and Castro-Martinez v. Holder, 674 F.3d 1073,

1080 (9th Cir. 2011). We expressly disavowed that framework in Bringas-

Rodriguez v. Sessions, 850 F.3d 1051, 1069–70 (9th Cir. 2017) (en banc).

Substantial evidence supports the agency’s denial of Bhattarai’s CAT claim

because the record does not compel the conclusion that she will “more likely than

not” be tortured if she is removed to Nepal. 8 C.F.R. § 1208.16(c)(2).

The IJ did not deprive Bhattarai of due process by concluding that the

country conditions evidence she submitted was “insufficiently probative.”

Although Bhattarai “is entitled to a full and fair hearing of [her] claims and a

reasonable opportunity to present evidence on [her] behalf,” the IJ’s exclusion of

3 irrelevant evidence did not deny her that opportunity. Cinapian v. Holder, 567

F.3d 1067, 1073 (9th Cir. 2009) (alteration in original).

PETITION GRANTED IN PART AND DENIED IN PART. Bhattarai is

awarded her costs on appeal.