Acharya v. Holder

• Decision Date: 05 August 2014
• Docket Number: Docket No. 11–4362–ag.
• Parties: Prakash ACHARYA, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

761 F.3d 289

Prakash ACHARYA, Petitioner,

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

Docket No. 11–4362–ag.

United States Court of Appeals,Second Circuit.

Argued: Sept. 11, 2013.

Decided: Aug. 5, 2014.

Gary J. Yerman, Yerman & Associates, LLC, New York, N.Y., for Petitioner.

Julie S. Saltman (Stuart F. Delery, Paul Fiorino, and Jessica R.C. Malloy, on the brief), United States Department of Justice, Washington, DC, for Respondent.

Before: KATZMANN, Chief Judge, JACOBS and POOLER, Circuit Judges.

POOLER, Circuit Judge:

We consider in this case the consequences of an Immigration Judge's (“IJ's”) application of an incorrect and overly stringent legal standard when evaluating the nexus between an asylum applicant's persecution and a protected ground that might qualify the applicant as a refugee. In concluding that petitioner Prakash Acharya had not established that he suffered persecution on the grounds of political opinion, the IJ determined that Acharya failed to show that political persecution was “the central reason” for his persecution at the hands of Nepali Maoists. Certified Administrative Record (“CAR”) at 68; see also id. at 69; id. at 70. In so concluding, the IJ incontrovertibly applied an incorrect and overly stringent legal standard in analyzing testimony offered by Acharya, who may satisfy his burden for establishing eligibility for asylum by demonstrating that a statutorily protected ground, such as political opinion, “was or will be at least one central reason for persecuting the applicant,” 8 U.S.C. § 1158(b)(1)(B)(i). The IJ thus committed error in his evaluation of Acharya's asylum application. Accordingly, the petition for review is GRANTED, and we REMAND this case for further proceedings consistent with this opinion.

BACKGROUND

In this case the IJ found Acharya to be credible, and the BIA did not reject this finding. The following facts are thus taken, inter alia, from Acharya's testimony before the IJ, certain written materials, both official and personal to Acharya, which he submitted in conjunction with the hearing before the IJ, and Acharya's I–589 Application for Asylum. See Indradjaja v. Holder, 737 F.3d 212, 214 n. 1 (2d Cir.2013).

I. Acharya & The Maoists

Acharya is 34 years old and a citizen and native of Nepal. He is husband to Ritu Acharya (since 2004); father to a minor son, Prerit; brother of two sisters, Januka and Dipa, one older and one younger; and son to Yamuna and Thakur, petitioner's father and a founder of the Nepali Congress political party. For the purposes of this asylum proceeding there are two facts about petitioner's life that are particularly salient. First, following his father and other members of his family, Acharya is a member of the Nepali Congress party. He was, from 1996 to 1999, active in the Student Union of the Nepali Congress, and held a leadership position as an administrative officer of its board. Second, in 1999 he joined the Nepali Police Force. This position precluded him from engaging in political activities on behalf of the party. Both positions, however, brought him into conflict with Nepali Maoists.

At all points relevant to this appeal, Nepal was engaged in a violent internal armed conflict. The record indicates that in 1996, the Maoist United People's Front initiated an insurgency, committing acts of violence against both civilian and government targets. Attempts to broker peace between the Maoists and a succession of governments, intermittently led by the Nepali Congress Party, proved fruitless until Maoists declared a unilateral cease-fire on April 26, 2006. The imposition of the cease-fire did not immediately put an end to incidents of Maoist violence. However, negotiations eventually led to the formation of a Constituent Assembly via election on April 10, 2008, with the responsibility both to serve as a Parliament and to draft a new Nepali constitution. In those elections, the Communist Party of Nepal (Maoist) won 229 of 601 available seats, while the Nepali Congress party won 115, making these the two largest political parties in the Asembly.

Acharya grew up in the rural district of Sindhuli, where his family owned land and worked as farmers. He graduated from high school in 1999, and joined the Nepali Police Force on September 5 of that year. He was motivated to do so because he “was a member of Nepal Congress and [he] wanted to do for the country.” CAR at 123. Upon joining the Police Force Acharya relocated to another district while his family remained in Sindhuli. His first responsibilities were limited to data entry.

Threats from Maoists directed at Acharya's father on account of the family's political activities began when Acharya was still in school, prior to his decision to join the Police Force. These threats highlighted the political activities of both Acharya, as a member of the Student Union, and his father, as a member of the Nepali Congress. The threats directed at Acharya's father presented his father with two choices—join the Maoists or face death. These threats were also occasionally accompanied by demands for money.

On March 14, 2005, Maoist insurgents went to Acharya's home in Sindhuli, where Acharya's mother, father, and wife were sleeping. They abducted Acharya's wife and father, and took them to the jungle. Apparently making reference both to Acharya and his family, the Maoists stated that the kidnapping was because “you're also in the student union and you're also in the police force and we're also the member[s] of the Nepali Congress.” Id. at 130. Through the intervention of Nepali Congress members in the village, whose assistance had been sought out and secured by Acharya's mother, Acharya's father and wife were released.

Acharya's family fled from Sindhuli within 45 days of the incident. At the time of Acharya's application for asylum before the IJ, his family was living with various family members in Kathmandu, and had been doing so virtually the entire time since Maoists forced their flight. The family was constantly changing houses in Kathmandu to avoid the possibility that Maoists would determine their whereabouts.

On January 15, 2006, a dispatch directed to Acharya's father issued from an organization referring to itself, on official stationary, as the District Organization Committee, Sindhuli, of the Nepal Communist Party (Maoist). ¹ By this dispatch, the Maoists indicated that Acharya's police work had led to numerous arrests of Maoist party members. As such, the dispatch concluded, the party had decided to “take deadly action and capture your house and land till arresting your son.” Id. at 254. At the time of Acharya's petition before the IJ, Maoists apparently were still occupying the family's home in Sindhuli.

By May 2006, Acharya had been promoted from his previous rank in the Police Force, Constable, to the rank of Head Constable. In this role, his responsibilities changed. Instead of data entry and computer-related work Acharya began going out into villages and collecting data about the identities and activities of Maoists in an undercover capacity.

On May 18, 2006, in the course of one such assignment, he arrived in the district of Ramechhap. He proceeded to a village called Priti, which was twenty-four hours by walking from Sindhuli. On May 21, Maoists in Priti recognized Acharya by his civil uniform and haircut as being in the village in order to gather information on them. Maoists subsequently attacked and detained him. In the course of the attack Acharya sustained serious injuries to his leg, which required four days of hospitalization.

During this detention, but after the physical violence, Acharya was approached by one of his Maoist captors. Before the IJ, Acharya stated his captor accosted him as follows: “Don't you know that we're Maoist terrorists? You have come here to keep the record of our party. You work for the computer section of the police. You are in the democratic party of (indiscernible). And all your family members is in Nepali Congress.” Id. at 141. Acharya concluded, “I found that she had all information about me.” Id.

The Maoists subsequently blindfolded and tied up Acharya. He was handed over to a resident of the village, who brought him to a joint police and army barracks for treatment. He returned to Kathmandu, where he continued working for the police.

In early 2008, Acharya was dispatched to Haiti under the auspices of the United Nations mission there. In the course of living in Haiti he obtained a B–2 non-immigrant visa for the United States. His mission complete in Haiti, he returned to Nepal. At this point he resigned from the Police Force because, in his mind, “[t]he terrorists were looking for me and I did not have the protection and the safety. And I could not join their party and I could not beat the terrorists.” Id. at 144–45. Acharya stayed in Nepal for between ten and twelve days, at which point he traveled to the United States and entered legally pursuant to the visa he received in Haiti. He arrived on or about September 13, 2008 and was authorized to stay through March 12, 2009. He remained beyond this period of authorization, and on September 11, 2009 applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).

II. Proceedings Before the IJ

Acharya appeared before Immigration Judge Michael W. Straus on February 24, 2010. At that proceeding, he petitioned for (i) asylum under Section 208 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158, (ii) withholding of removal under Section 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), and protection under the CAT, 8 C.F.R. § 1208.16(c)(2). After hearing from Acharya, and reviewing various written submissions proffered by Acharya, the IJ issued an oral decision concluding that Acharya was ineligible for relief on the basis of any of the grounds he asserted. In re Acharya, A 087 645 737 (Immig. Ct. Hartford Feb. 24, 2010), CAR...