FILED
NOT FOR PUBLICATION JUL 14 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHIVA PRASAD SUBEDI, No. 10-73959
Petitioner, Agency No. A099-864-620
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 8, 2014**
San Francisco, California
Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.
1. Because the Board of Immigration Appeal (BIA) conducted its own review
of the evidence and law, our review is limited to the BIA’s decision. Cordoba v.
Holder, 726 F.3d 1106, 1113-14 (9th Cir. 2013). “Without knowing the basis of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the [BIA’s] decision, we cannot conduct a meaningful review” of it. Delgado v.
Holder, 648 F.3d 1095, 1108 (9th Cir. 2011) (en banc).
We cannot determine on this record whether the BIA’s asylum
determination that the harm that Subedi suffered did not rise to the level of past
persecution is supported by substantial evidence. The BIA’s determination with
regard to this issue consisted of a simple conclusion. The BIA did not provide any
reasoning, explanation, or analysis for its conclusion. More specifically, we cannot
determine whether the BIA took into account all of Subedi’s harm, individually
and cumulatively, see Guo v. Ashcroft, 361 F.3d 1194, 1203 (9th Cir. 2004);
whether the BIA engaged in impermissible fact finding (because it is unclear
whether the immigration judge made a past persecution finding), see Ridore v.
Holder, 696 F.3d 907, 915 (9th Cir. 2012); or whether the BIA applied the correct
legal standard, see Cordon-Garcia v. INS, 204 F.3d 985, 991 (9th Cir. 2000). We
therefore remand to the BIA so that it can provide a reasoned decision.
2. Because we grant the petition with regard to whether Subedi established past
persecution, a finding of which could shift the burden of proof for a well-founded
fear of future persecution, we decline to address the BIA’s determination as to that
issue. Furthermore, because the BIA’s decision is unclear as to whether it properly
applied the correct legal standard, we also decline to address whether substantial
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evidence supports the BIA’s determination for Subedi’s applications for
withholding of removal or relief under the Convention Against Torture.
PETITION FOR REVIEW GRANTED; REMANDED.
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