Karki v. Holder

• Decision Date: 30 April 2013
• Docket Number: No. 12–9550.,12–9550.
• Citation: 715 F.3d 792
• Parties: Narendra Raj KARKI, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

715 F.3d 792

Narendra Raj KARKI, Petitioner,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 12–9550.

United States Court of Appeals, Tenth Circuit.

April 30, 2013.

Submitted on the briefs: ^*

Khagendra Gharti–Chhetry, New York, NY, for Petitioner.

Stuart F. Delery, Acting Assistant Attorney General, Civil Division, U.S. Department of Justice; Ethan B. Kanter, Deputy Chief, National Security Unit, Office of Immigration Litigation; Paul F. Stone, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.

Before KELLY, McKAY, and O'BRIEN, Circuit Judges.

McKAY, Circuit Judge.

Petitioner Narendra Raj Karki, a native and citizen of Nepal, petitions for review of a decision of the Board of Immigration Appeals (BIA) affirming an order of the immigration judge (IJ) that denied his application for asylum and restriction on removal under the Immigration and Nationality Act (INA) and protection under the United Nations Convention Against Torture (CAT).

BACKGROUND

Petitioner entered the United States in October 2007 in order to present a paper at a forestry conference in Oregon. His visitor's visa authorized him to remain in the country until November 6, 2007. On November 14, 2007, Petitioner filed an asylum application, which was denied by an asylum officer and referred to an immigration judge. Removal proceedings were initiated against him in February 2008. At the removal proceedings, Petitioner renewed his application for asylum and sought restriction on removal under the INA and protection under the CAT, claiming that he had suffered past persecution and feared future persecution based on his political opinion and membership in a particular social group. He testified at the January 20, 2010 hearing through an interpreter.His father, Man Bahadur Karki, also testified at the hearing.

A. Factual Background

Petitioner was born in August 1961 in Nepal. He has a wife and two daughters, who remained in Nepal when he came to the United States. At the time of the hearing, his older brother was a lawful resident in the United States, having entered this country in 1995 to complete his Ph.D. Petitioner's younger brother had entered the United States in 2004, had been granted asylum, and was also completing a Ph.D. Petitioner also has a sister, who apparently still lived in Nepal at the time of the hearing.

At the immigration hearing, Petitioner testified that he had experienced past persecution and feared future persecution from Maoists in Nepal because the Maoists opposed both his work on financial development projects and his support of the Nepali Congress party. Petitioner, who has an MBA, worked for several years for a forestry and national parks project under the United Nations Development Program (UNDP), where his job was to train and organize the public in financial development and related projects. As part of this work, Petitioner “used to talk about the human rights, and the development,” and trained individuals on “how to bring income and how to develop the market management.” (R. at 121.) He emphasized the importance of economic development and “always like[d to] bring the awareness to the public as a democratic principle.” (R. at 139.) In the course of his work for the UNDP, Petitioner drove to different villages to speak to the villagers about these ideas. When he did so, he testified, the Maoists would sometimes stop him on the road and harass him, and they “always told [him] to stop talking about democracy and try not to help to bring income to the public.” (R. at 122.) He testified that the Maoists demanded that he not talk to the public about financial development, democracy, and other issues of public awareness because it was “against ... their principle” for the public to develop and earn money. (R. at 121.)

Petitioner testified that he was also persecuted by the Maoists based on his support of the Nepali Congress party, which promotes democratic principles and opposes the communist ideology promoted by the Maoists. Petitioner testified that, due to his father's political background in the Nepali Congress party, he and his three siblings were all involved in politics. He said that he was involved with the Nepali Student Union when he was a student. After he finished his education, he was a district secretary or assistant in the Makwanpur District for the Nepali Congress Party, assisting the president and vice president of the party, producing pamphlets and other documents, and doing work for the village. He spent eight to twelve hours a month working for the party. At the immigration hearing, Petitioner originally testified that he was a member of the Nepali Congress party. For corroboration, Petitioner produced a letter written by the district chairman of the Nepali Congress Party which identified Petitioner's father as an “active party member” and Petitioner as a “regular supporter” of the party. (R. at 260.) The letter stated that Petitioner regularly participated in various political assemblies and other party events, provided financial support to the party, and was “a bona fide, very active and devoted on democracy.” (R. at 260.) The immigration judge pointed out that this letter did not identify Petitioner as a member of the party. Petitioner then testified that he had been a member of the Nepali Congress party in earlier years, but his work with the UNDP prevented him from maintaining active membership in the party after 1997. However, he continued to support the party. Petitioner told the IJ that he had an old party membership card, but he did not bring it to the United States because he was not planning on applying for asylum when he came here.

Petitioner testified that the Maoists made verbal and written requests for donations from time to time. He refused these requests, but they sometimes took the money he had in his pockets by force when he encountered them in the field. He said that the Maoists also asked him for gasoline, stationary, and printing, but he never gave them these things. He testified that the Maoists planted a flag on a rice field he owned in Nepal and took control over it, then asked his father for 50,000 rupees to get the land back. Petitioner said that he had learned about this incident shortly after he came to the United States in October 2007.

Petitioner also testified about three specific instances of attempted or actual physical violence directed at him or his family members. First, Petitioner testified that on May 22, 2004, the Maoists exploded a bomb at his aunt and uncle's house, killing his aunt. Petitioner testified that the Maoists took responsibility for this attack and said it was because his uncle had been a major in the Nepal Army and was a supporter of the Nepali Congress Party. Petitioner provided newspaper articles corroborating this account. Petitioner further testified that the Maoists called his home the next day when his wife and his parents were there and threatened that his immediate family would meet the same fate “if you do anything against us.” (R. at 124.)

Second, approximately five months later, on November 21, 2004, five of Petitioner's colleagues were killed when the UNDP vehicle in which they were riding was bombed. Petitioner had intended to leave the office with them to go to the field, but, at the last minute, his boss held him back to help with another task, and he thus escaped harm. Petitioner testified that he later learned the bomb was intended for him. Specifically, he testified that the villagers told him the Maoists went to a village meeting and told the people that Petitioner was the intended target of the attack, “and one day we will get him.” (R. at 148.) Petitioner also provided a newspaper article reporting that “Maoist cadres had ambushed and blown away Parsa Wildlife Reserve's vehicle with suspicions that Mr. Karki was traveling in the vehicle.” (R. at 209.) The article further reported, “It has been learnt from his neighbors that Mr. Karki and his family have left his home and hide in different places for safety.” (R. at 209.) Petitioner testified that he still feels very bad when he sees the photographs of the aftermath of the attack and thinks of the way his friends were killed. He is also still upset by his memories of the gruesome scene, which he had to personally witness when he assisted at the scene after the attack. He testified, “I still feel bad because one of our driver[s] was killed in that bomb, and his body was hanging on the top of the tree, about 65 feet, and we had to take it out, piece by piece, and I feel really agitated, ... still thinking about that.” (R. at 123.)

Third, Petitioner testified about a physical assault he suffered on August 19, 2007. While he was walking home in the evening after returning from field work, he was attacked by three or four young Maoists who screamed, “Nepali government supporter is coming, get him, get him.” (R. at 124.) He fell to the ground while attempting to run away, and the boys dragged him and beat him, injuring his elbow, knees, shoulder, and back. At the end of the attack, the boys said, “long live Maoist, ... death for the democratic supporters.” (R. at 125.) Petitioner testified that some neighbors heard the noise and saved him. They took him to the hospital, where he was treated and given pain medication. Petitioner corroborated his account with an August 19 hospital document stating “C/O: 1. Physical Assault. 2. Bruises on wrists and face. 3. Semi-uncons[c]ious.” (R. at 216.) The document indicates that Petitioner was x-rayed, given an injection, and advised to take medication upon discharge. Petitioner testified that he did not suffer any permanent injuries from the assault.

Petitioner explained that he never sought help from the police in Nepal in connection with those attacks because the Maoists had threatened his life if he reported them to the police. He...