Filed: Nov. 19, 2013
Latest Update: Mar. 02, 2020
Summary: 12-3306 Dhakal v. Holder BIA Weisel, IJ A089 915 705 A089 915 706 A089 915 707 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 ELECTR
Summary: 12-3306 Dhakal v. Holder BIA Weisel, IJ A089 915 705 A089 915 706 A089 915 707 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 ELECTRO..
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12-3306
Dhakal v. Holder
BIA
Weisel, IJ
A089 915 705
A089 915 706
A089 915 707
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 19th day of November, two thousand thirteen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 SURENDRA RAJ DHAKAL, SHILA PAHARI,
14 SUJAN DHAKAI,
15 Petitioners,
16
17 v. 12-3306
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONERS: Khagendra Gharti-Chhetry, New York,
25 NY.
26
27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
28 Attorney General; Shelley R. Goad,
29 Assistant Director; Jennifer R.
1 Khouri, Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
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 in part and DENIED in part.
10 Petitioners Surendra Raj Dhakal, Shila Pahari, and
11 Sujan Dhakai, natives and citizens of Nepal, seek review of
12 a July 27, 2012, order of the BIA, affirming an October 28,
13 2010 decision of Immigration Judge (“IJ”) Robert D. Weisel,
14 denying their applications for asylum, withholding of
15 removal, and relief under the Convention Against Torture
16 (“CAT”). In re Surendra Raj Dhakal, Shila Pahari, Sujan
17 Dhakai, Nos. A089 915 705/706/707 (B.I.A. July 27, 2012),
18 aff’g Nos. A089 915 705/706/707 (Immig. Ct. N.Y. City Oct.
19 28, 2010). We assume the parties’ familiarity with the
20 underlying facts and procedural history in this case.
21 Under the circumstances of this case, we have
22 considered both the IJ’s and the BIA’s opinions “for the
23 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 247
24 (2d Cir. 2008). The applicable standards of review are
25 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
26 v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
2
1 I. Past Persecution
2 The agency applied an overly stringent legal standard
3 in finding that Dhakal did not establish that his political
4 opinion was “one central reason” that he was abducted,
5 beaten, detained, threatened, and extorted by Maoist
6 insurgents. The agency acknowledged that Dhakal was an
7 active member of the Nepali Congress Party and that the
8 Maoists referenced Dhakal’s party membership during and
9 after his abduction, but found that the Maoists’ primary
10 reason for targeting him was to obtain medical expertise and
11 money from him. In doing so, the agency emphasized that the
12 Maoists did not try to “prevent [Dhakal]...from continuing
13 his activities” with the Nepali Congress Party, nor force
14 him to quit the party. First, these findings appear to
15 misconstrue the record, which indicates that on various
16 occasions, the Maoists told Dhakal to quit the party or
17 referenced his failure to do so, and fail to acknowledge
18 that Dhakal’s abduction and detention amounted to his
19 forcible conscription into the Maoist cause; Dhakal could
20 hardly continue his prior political activities while
21 detained and forced to work at a Maoist militia camp.
22
3
1 Moreover, an asylum claim based on political opinion
2 does not require that the persecutor specifically attempt to
3 stop the applicant’s political activities, such as forcing
4 Dhakal to resign from the Nepali Congress Party. Asylum law
5 merely requires that the persecutor inflict harm rising to
6 the level of persecution, with one central reason for the
7 harm being the applicant’s actual or imputed political
8 beliefs. INS v. Elias-Zacarias, 502 U.S. 478, 482-83 (1992)
9 superseded by statute; see also Yueqing Zhang v. Gonzales,
10
426 F.3d 540, 548 (2d Cir. 2005). Furthermore, although the
11 Maoists’ repeated references to Dhakal’s party membership
12 are integral to his claim, they are not the stopping point
13 in assessing his political opinion, as we have repeatedly
14 held that simply refusing to join a group or capitulate to
15 its demands, based on actual or perceived ideological
16 opposition to the group, may establish a claim based on
17 actual or imputed political opinion. See, e.g., Yueqing
18
Zhang, 426 F.3d at 546-47; Delgado v. Mukasey,
508 F.3d 702,
19 707 (2d Cir. 2007); Rodas Castro v. Holder,
597 F.3d 93,
20 103-04 (2d Cir. 2010); Gomez-Beleno v. Holder,
644 F.3d 139,
21 143-44 (2d Cir. 2011).
22
4
1 The parties do not dispute that the Maoists not only
2 mentioned Dhakal’s party membership on several occasions,
3 but they also seriously beat and detained him when he
4 initially refused to provide medical care to their injured
5 militia members, and later accused him of betraying their
6 cause and ordered him to pay money for his failure to
7 support them, or else be killed. In light of this evidence
8 and the relevant case law, we remand for the agency to make
9 new findings as to whether, considered cumulatively, the
10 Maoists’ actions constituted past persecution on account of
11 Dhakal’s political opinion – either his party membership or
12 his actual or imputed ideological opposition to the Maoist
13 cause. In doing so, the agency should revisit whether
14 Dhakal met the “one central reason” standard in light of our
15 precedents governing the nexus requirement. Aliyev v.
16 Mukasey, 549 F.3d 111, 117-18 (2d Cir. 2008); 8 U.S.C. §
17 1158(b)(1)(B)(i).
18 II. Well-Founded Fear of Future Persecution
19 The agency further erred in failing to make any finding
20 as to whether, even if Dhakal did not establish past
21 persecution on account of his political opinion, he had a
22 well-founded fear of future persecution on that basis, given
23 his refusal to comply with the Maoists’ demands. See
5
1 Delgado, 508 F.3d at 707. We have previously noted that
2 even where an applicant was targeted in the past for non-
3 political reasons, his refusal to support the group that
4 targeted him or her may give rise to a well-founded fear of
5 future persecution on account of an actual or imputed
6 political opinion. See
id. at 706-07; see also Koudriachova
7 v. Gonzales,
490 F.3d 255, 264 (2d Cir. 2007). The agency
8 erred in dismissing Delgado as irrelevant simply because it
9 involves a claim filed before the effective date of the REAL
10 ID Act of 2005; Delgado is not a “mixed motive” case
11 implicating the REAL ID Act’s addition of the “one central
12 reason” standard discussed above, and thus, it remains good
13 law in reference to Dhakal’s arguments regarding his fear of
14 future persecution. As a result, we remand for the agency
15 to make findings as to whether, even if it determines that
16 Dhakal did not establish past persecution under the asylum
17 statute, he established a well-founded fear of future
18 persecution on account of his actual or imputed political
19 opinion. See
Koudriachova, 490 F.3d at 264.
20 III. Convention Against Torture
21 Because Petitioners do not meaningfully identify errors
22 in the agency’s denial of protection under the CAT, we deny
23 the petition as to this claim. See Yueqing Zhang,
426 F.3d
24 at 545 n.7.
6
1 For the foregoing reasons, the petition for review is
2 GRANTED in part and DENIED in part, and the case is REMANDED
3 for further proceedings consistent with this order. As we
4 have completed our review, any stay of removal that the
5 Court previously granted in this petition is VACATED, and
6 any pending motion for a stay of removal in this petition is
7 DISMISSED as moot. Any pending request for oral argument in
8 this petition is DENIED in accordance with Federal Rule of
9 Appellate Procedure 34(a)(2) and Second Circuit Local Rule
10 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
7
