FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 16, 2013
Elisabeth A. Shumaker
Clerk of Court
LAKPA SHERPA,
Petitioner,
v. No. 12-9547
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before HOLMES, HOLLOWAY, and BACHARACH, Circuit Judges.
Lakpa Sherpa, a native and citizen of Nepal, petitions for review of the
decision of the Board of Immigration Appeals (“BIA”) affirming an order of the
immigration judge (“IJ”) that denied his application for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). Exercising
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
jurisdiction under 8 U.S.C. § 1252, we grant the petition and reverse and remand to
the BIA for further proceedings.
I. BACKGROUND
Mr. Sherpa was born in 1960 in Nepal, and has a wife and five children. He is
a member of the Nepali Congress Party (“NCP”), which promotes democratic ideals,
and was an elected leader in his village under the NCP banner. Among his duties as
a village leader, Mr. Sherpa worked to remedy poverty, promoted tourism, and
helped create jobs. This included managing a development project for the
construction of a teacher’s residence for a local school. The Maoists, a Communist
guerilla organization, opposed the NCP’s agenda as well as Mr. Sherpa’s association
and activities as an NCP leader. Mr. Sherpa apparently carried much clout in his
village, and taught the villagers about the dangers of Maoist ideology while
instructing them not to join the Maoists. The Maoists frequently tried to recruit
Mr. Sherpa into their organization, including offering him a local leadership position,
but he refused. They also sought money from Mr. Sherpa, but he never gave them
any. For his actions, the Maoists allegedly often threatened to attack and kill him.
In October 2006, a group of Maoists broke into Mr. Sherpa’s home and
demanded he hand over the funds designated for the teacher’s residence project. He
again refused. The Maoists then tied him up and severely beat him, causing injuries
to his chest and legs that required eventual hospitalization. They also beat
Mr. Sherpa’s wife, though she was not hospitalized. Villagers eventually came to
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Mr. Sherpa’s rescue and drove the Maoists out. Before they left, however, the
Maoists threatened to kill Mr. Sherpa the next time they saw him. He thus decided to
flee to a different village where he sought refuge with a friend, Daputi Sherpa, and
shortly thereafter fled for Kathmandu.
In Kathmandu, Mr. Sherpa requested help from the NCP, Nepal’s controlling
political party at the time, but they were unable to help him. In January 2007, after
nearly three months in Kathmandu, Mr. Sherpa entered the United States on a
non-immigrant (B-2) visitor visa. In July 2007, after overstaying his visa,
Mr. Sherpa filed an application for asylum, withholding of removal, and protection
under the CAT, but was denied. The government then commenced removal
proceedings.
In July 2009, a hearing was held before an IJ regarding Mr. Sherpa’s renewed
applications for relief. He testified about his active membership in the NCP, efforts
to discourage villagers from joining the Maoists, the Maoists’ frequent threats and
extortion attempts, and the beating he received. He testified that since his departure,
his home had been burned down and his friend, Daputi Sherpa, had been
kidnapped—and possibly killed—for providing refuge to him. Mr. Sherpa’s family,
who moved to Kathmandu shortly after he fled, remains in Kathmandu. They have
been unharmed since that time, although Mr. Sherpa testified that they do not go out
at night and are at times in hiding.
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Two witnesses testified on Mr. Sherpa’s behalf. A professor of anthropology
and history testified that Mr. Sherpa’s account of what happened was consistent with
political conditions in Nepal. She also believed that for Maoists to accompany their
extortion attempts with physical violence, other factors beyond the acquisition of
money would be involved that are typically political in nature. A clinical social
worker testified that after interviewing Mr. Sherpa, she concluded he showed signs of
acute stress disorder and post-traumatic stress disorder. She testified that as a
consequence, Mr. Sherpa had difficulty recalling the events that led to his departure
from Nepal in any specific, linear fashion.
The IJ denied Mr. Sherpa’s request for relief, finding that he was a credible
witness but that the Maoists were motivated by obtaining his funds and having him
join their organization rather than on account of his political beliefs. The IJ thus
concluded that, with respect to Mr. Sherpa’s asylum and withholding of removal
application, he failed to implicate any of the protected grounds upon which past
persecution or a well-founded fear of future persecution must be based. The IJ also
denied Mr. Sherpa’s request for protection under the CAT after finding that there was
no evidence he would be tortured by, or with the acquiescence of, the Nepalese
government. The BIA adopted and affirmed the IJ’s decision. Mr. Sherpa now
appeals.
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II. DISCUSSION
We review legal questions de novo, but “[a]gency findings of fact are
reviewed under the substantial evidence standard.” Karki v. Holder, 715 F.3d 792,
800 (10th Cir. 2013) (internal quotation marks omitted). Under this standard,
“administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
An applicant seeking asylum must demonstrate that his “race, religion,
nationality, membership in a particular social group, or political opinion was or will
be at least one central reason for persecuting the applicant.” Dallakoti v. Holder,
619 F.3d 1264, 1268 (10th Cir. 2010) (internal quotation marks omitted). A “central
reason” means that the protected ground cannot have played a minor role in the
applicant’s past treatment or fear of future harm. Id. (holding that the protected
ground “cannot be incidental, tangential, superficial, or subordinate to another reason
for harm.” (internal quotation marks omitted)).
There are three ways to demonstrate refugee status: (1) establish a
well-founded fear of future persecution; (2) establish past persecution, which creates
a rebuttable presumption of a well-founded fear of future persecution; and
(3) establish past persecution so severe that it demonstrates compelling reasons for
being unwilling or unable to return. Krastev v. INS, 292 F.3d 1268, 1270-71 (10th Cir.
2002).
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On appeal, Mr. Sherpa argues that the IJ erred in failing to find a nexus
between his past persecution—specifically the severe beating and frequent death
threats—and his political opinion. Mr. Sherpa alleges that as a result, the IJ erred in
concluding that he failed to demonstrate past persecution and thus a presumptively
well-founded fear of future persecution. We agree.
The IJ concluded that rather than political opinion, the Maoists were motivated by
their desire to extort money from Mr. Sherpa and to recruit him to their cause, neither of
which necessarily qualifies as a protected ground. But the record compels the conclusion
that Mr. Sherpa’s political opinion, expressed through his affiliation with the NCP as an
active, elected leader, was at least one central reason for the Maoists’ actions. Maoist
ideology opposes villagers’ educational development, which is precisely the type of
project that Mr. Sherpa was coordinating on behalf of the NCP when he was beaten, and
the Maoists’ frequent harassment of Mr. Sherpa illustrates they were aware of and
unhappy with his involvement. Mr. Sherpa also informed the villagers about “how the
Maoist live, what is their principle [sic],” Admin. R. at 145, in contrast to the NCP’s
democratic agenda. He discouraged the villagers from joining the Maoists, thus
demonstrating that his own outspoken political opinion opposed the Maoists’. See INS v.
Elias-Zacarias, 502 U.S. 478, 482 (1992) (“political opinion” means persecution on
account of victim’s political opinion, not the persecutor’s).
Furthermore, an expert witness testified that extortion attempts are not typically
accompanied by physical violence unless an additional factor like politics comes into
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play. In light of Mr. Sherpa’s public association with the NCP and his outspoken
opposition against the Maoists, this testimony reinforces the existence of a causal
connection between Mr. Sherpa’s persecution and his political opinion. Indeed, the
expert witness testified that in her opinion, Mr. Sherpa’s membership in the NCP and
village leadership activities were the primary reasons for his persecution by the Maoists.
However, the IJ appears to have ignored this substantial evidence in relation to the
Maoists’ beating of Mr. Sherpa, relying instead on the fact that they also tried to extort
and recruit him. As we stated in another case involving a Nepali seeking asylum from
the Maoists, such “extortion and recruitment efforts do not negate Petitioner’s testimony
that he was specifically targeted and harassed based on his political opinion.” Karki,
715 F.3d at 802; see also Espinosa-Cortez v. Att’y Gen., 607 F.3d 101, 113 (3rd Cir.
2010) (although petitioner was initially targeted due to persecutor’s recruitment efforts,
“a reasonable adjudicator would be compelled to conclude that the [persecutor], by
threatening a government-affiliated person after that person made his anti-[persecutor]
views known, had threatened persecution at least in part on account of the victim’s
political beliefs.”).
The government’s argument relies largely on Elias-Zacarias, in which the
Supreme Court held that coercive recruitment into a guerilla organization does not
establish persecution on account of political opinion. The government contends that the
Maoists’ attempts to extort and recruit Mr. Sherpa similarly fail to amount to political
persecution. However, unlike in Elias-Zacarias, there is evidence here of more than
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Mr. Sherpa’s refusal to accede to forcible recruitment efforts. Cf. 502 U.S. at 482 (1992)
(noting that a person may resist recruitment for a variety of reasons and the petitioner
failed to show a political motive for his refusal). Mr. Sherpa did show a political motive
through his role as an elected official in the Maoists’ chief opposition party, advocating
democratic and economic principles contrary to the Maoists, and convincing other
villagers not to join their organization. His steadfast refusals to join the Maoists were
evidently a result of his political principles, as he testified, “I am a Nepali Congress Party
believer . . . I will never go and join the Maoists, even though they kill me . . . I will
never do that in my life.” Admin. R. at 145-146. As such, the record as a whole does not
support the IJ’s conclusion that the Maoists were only motivated by their desire to extort
or recruit Mr. Sherpa.
As to Mr. Sherpa’s claim that he is eligible for protection under the CAT, he is
obligated to show that “it is more likely than not that he will be subject to torture by
a public official, or at the instigation or with the acquiescence of such an official.”
Cruz–Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005) (brackets and internal
quotation marks omitted). However, he has provided virtually no record support to
meet this standard.
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Accordingly, we affirm the denial of Mr. Sherpa’s CAT claim. But we reverse
his claims for asylum and withholding of removal, and remand for further
proceedings consistent with this order and judgment.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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