Dahal v. Barr

• Citation: 931 F.3d 15
• Decision Date: 18 July 2019
• Docket Number: No. 18-1790,18-1790
• Parties: Madhav Prasad DAHAL, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

931 F.3d 15

Madhav Prasad DAHAL, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 18-1790

United States Court of Appeals, First Circuit.

July 18, 2019

Dilli Raj Bhatta, New York, NY, for petitioner.

Victoria M. Braga, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, Joseph H. Hunt, Assistant Attorney General, Civil Division, and Cindy S. Ferrier, Assistant Director, for respondent.

Before Kayatta, Circuit Judge, Souter,^* Associate Justice, and Selya, Circuit Judge.

SOUTER, Associate Justice.

In the face of threatened deportation to Nepal, his country of citizenship, petitioner Madhav Prasad Dahal applied to the Government for asylum, withholding of removal, and protection under the United Nations Convention Against Torture. See 8 U.S.C. §§ 1158, 1231(b)(3) ; 8 C.F.R. § 1208.16(c). He contested deportation owing to his fear of persecution for his political beliefs if he repatriated. An Immigration Judge denied his application, and the Board of Immigration Appeals (BIA) affirmed. We respond to Dahal’s petition for review of the BIA’s decision by granting the petition in part, denying it in part, and remanding.

I

In 1992, Dahal officially became a member of the Nepali Congress Party, which was a rival of the Communist Maoists. In 1996, the Maoists began an armed insurgency to overthrow the government.

According to Dahal, whom the Immigration Judge found to be a credible witness, the Maoists persecuted him both during and after this conflict, based on his affiliation with the Congress Party. He testified that, beginning in 1997, Maoists sent him threatening letters and made similar phone calls, invaded his home, attacked him at a Congress Party meeting, and held him hostage until he agreed to pay them a portion of the profits from his business. Dahal claims that the persecution persisted even after he reported the incidents to the police and changed his residence several times, and failed to cease in the aftermath of the insurgency’s formal end with the signing of a peace agreement in 2006.

In July 2010, Dahal traveled to the United States on a business trip. His visa authorized him to remain in the United States until January 2011, but he did not leave when the visa expired. Instead, he says he decided to stay because his relatives in Nepal informed him that an armed group of Maoists had come to his home there and threatened to kill him upon his return. He also testified that at one point during his absence the Maoists managed to cut off the water supply to his family’s residence.

In June 2011, Dahal filed an application for asylum with the United States Citizenship and Immigration Services (USCIS), a component of the Department of Homeland Security (DHS). USCIS declined to grant Dahal asylum and referred his application to an Immigration Judge. DHS then ordered Dahal to appear before the Immigration Judge to show why he should not be removed from the United States for overstaying his visa.

In 2017, the Immigration Judge ordered Dahal’s removal to Nepal. See In re Dahal, No. A200-173-934, at 15 (Exec. Office for Immigration Review July 25, 2017) ("IJ Decision"). In denying his application for asylum, the judge credited Dahal’s testimony that he faced political persecution when he was living in Nepal, and found that as a result Dahal had become entitled to a presumption that he had the "well-founded fear of persecution" that is necessary to obtain asylum. 8 U.S.C. § 1101(a)(42). Nonetheless, the judge concluded that Dahal was not eligible for asylum because the Government had rebutted the presumption by showing that there had been a "fundamental change in circumstances" in Nepal since Dahal last lived there in 2010. 8 C.F.R. § 1208.13(b)(1)(i)(A). The judge relied heavily on "Country Reports" produced by the Department of State, which indicated that Nepal’s government had reached a truce with the Maoists in 2006 and had held free and fair elections in 2013.

In the same decision, the Immigration Judge also denied two other variants of requested relief from removal. The judge concluded that Dahal was not entitled to withholding of removal because he could not satisfy the more lenient eligibility requirements for asylum and had failed to show that it was more likely than not that he would face persecution in Nepal. See id. § 1208.16(b). And the judge found that Dahal was not entitled to protection under the United Nations Convention Against Torture because he had not "establish[ed] that it is more likely than not that he ... would be tortured" if deported to Nepal. Id. § 1208.16(c)(2).

Dahal appealed to the BIA, which adopted and affirmed the Immigration Judge’s decision. In rejecting Dahal’s asylum request, along with his claim that the Government had not rebutted the presumption of eligibility, the BIA followed the judge’s reliance on the State Department’s Country Reports on Nepal as showing a fundamental change in country conditions. And it pointed out that Dahal had not been persecuted during the year before he left Nepal; that Dahal has been absent from Nepal for many years, "diminish[ing] the likelihood that he would be persecuted"; and that Dahal’s family has "lived in Nepal apparently without persecution" since 2010. In re Dahal, No. A200-173-934, at 2 (BIA July 26, 2018) ("BIA Decision"). The BIA also agreed with the Immigration Judge that Dahal’s failure to establish his eligibility for asylum required the conclusion that he was not entitled to withholding of removal. Finally, it found that Dahal had not shown the likelihood of torture necessary to qualify for protection under the Convention Against Torture.

II

"[W]here, as here, the BIA accepts the [Immigration Judge’s] findings and reasoning yet adds its own gloss, we review the two decisions as a unit." Xian Tong Dong v. Holder, 696 F.3d 121, 123 (1st Cir. 2012). We assess the factual findings of the BIA and the Immigration Judge, as well as their determinations regarding asylum, withholding of removal, and protection under the Convention Against Torture, under the deferential substantial evidence standard. See Balachandran v. Holder, 566 F.3d 269, 273-274 (1st Cir. 2009). "This standard requires us to accept all findings of fact so long as they are supported by reasonable, substantial, and probative evidence on the record considered as a whole." Moreno v. Holder, 749 F.3d 40, 43 (1st Cir. 2014) (quoting Gilca v. Holder, 680 F.3d 109, 114 (1st Cir. 2012) ). As otherwise formulated, the standard requires that a reviewing court accept the findings if supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Biestek v. Berryhill, ––– U.S. ––––, 139 S. Ct. 1148, 1154, 203 L.Ed.2d 504 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ); see 8 U.S.C. § 1252(b)(4)(B) (noting that "administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary").

A

To be eligible for asylum, Dahal must show that he is a "refugee" under the Immigration and Nationality Act. 8 U.S.C. § 1158(b)(1)(B)(i). Dahal may qualify as a "refugee" by demonstrating that he is unwilling or unable to return to Nepal "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Id. § 1101(a)(42).

Because the BIA and the Immigration Judge found that Dahal had faced past persecution based on his political beliefs, they concluded that he had previously become entitled to a presumption of a "well-founded fear of persecution." 8 C.F.R. § 1208.13(b)(1). The BIA and the Immigration Judge also found, however, that the Government had satisfied the standard set by regulation for rebutting this presumption in showing by a preponderance of the evidence that "[t]here has been a fundamental change in circumstances" such that Dahal "no longer has a well-founded fear of persecution." Id. § 1208.13(b)(1)(i)(A).

Before us, neither side disputes that Dahal suffered past persecution on account of political opinion and therefore had become entitled to a presumption of a well-founded fear of persecution going forward. The key question is whether substantial evidence supports the conclusion of the BIA and the Immigration Judge that the Government rebutted this presumption by showing a fundamental change in circumstances in Nepal such that Dahal no longer has a well-founded fear of persecution. We conclude that the answer is no.

The BIA and the Immigration Judge relied on evidence from the State Department’s Country Reports on Nepal and from Dahal’s own testimony. However, even under the deferential "substantial evidence" standard, the evidence in the record here cannot suffice to meet the Government’s burden to show by a preponderance a fundamental change in circumstances eliminating the presumption of well-founded fear.

Start with the Country Reports on Nepal, which were the principal evidentiary basis for the decisions of the BIA and the Immigration Judge. See IJ Decision 13 ("This is a case where the Government has met its burden through the Country Reports ...."). In evaluating the information contained in Country Reports, our cases have made clear that "abstract evidence of generalized changes in country conditions, without more, cannot rebut a presumption of a well-founded fear of future persecution." Palma-Mazariegos v. Gonzales, 428 F.3d 30, 35 (1st Cir. 2005). Rather, "to be effective, evidence of changed country conditions" derived from a Country Report "must negate a petitioner’s particular fear." Id. Thus, it is only when a Country Report "convincingly demonstrates material changes in country conditions that affect the specific circumstances of an asylum seeker’s claim" that "the report may be sufficient, in and of itself, to rebut the presumption of future persecution." Id. at 36 (emphasis added).

In...