NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KISHOR KHATIWADA, No. 16-71772
Petitioner, Agency No. A093-396-754
v.
MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 7, 2018
Seattle, Washington
Before: McKEOWN and FRIEDLAND, Circuit Judges, and BOLTON,** District
Judge.
Petitioner Kishor Khatiwada, a Nepali national and citizen, seeks review of
the Board of Immigration Appeals’ (“BIA”) decision denying him asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
Reviewing the agency’s factual findings for substantial evidence, Gu v. Gonzales,
454 F.3d 1014, 1018 (9th Cir. 2006), we grant the petition with regard to
Khatiwada’s asylum and withholding claims.1 We deny the petition with regard to
his CAT claim.
Khatiwada’s claims are based on his and his family’s affiliation with the
Nepali Congress Party, a major political opponent of Nepal’s Maoists. Khatiwada
testified that in 2003, a group of eight Maoists came to his family home and
demanded that his family quit the party and provide three sons to the Maoist armed
forces. The Maoists beat Khatiwada’s father and abducted his brother when his
father refused their demands. Later, while Khatiwada was living elsewhere in
Nepal, a group of Maoists returned to the family home, reiterated their demands,
and abducted another brother. After Khatiwada fled Nepal for the United States,
individuals claiming to be affiliated with the Maoists harassed his wife on multiple
occasions, requesting a monetary “donation” and threatening to kill Khatiwada if
he returned to Nepal without notifying them and joining their cause. An
immigration judge (“IJ”) found Khatiwada credible but determined that he had not
shown a legally sufficient nexus between any potential persecution and a protected
ground—in this case, his actual or imputed political beliefs—that could entitle him
to asylum or withholding. See 8 U.S.C. §§ 1158(b)(1)(A), 1231(b)(3)(A). The
1
We refer to the BIA and immigration judge collectively as “the agency.”
2
BIA affirmed.
1. Simply resisting recruitment is not an inherently political act. See I.N.S.
v. Elias-Zacarias, 502 U.S. 478, 482-83 (1992). But it does not follow that
Khatiwada’s “desire to avoid conscription . . . somehow disqualified [him] from
eligibility” for relief. Melkonian v. Ashcroft, 320 F.3d 1061, 1068 (9th Cir. 2003).
Even if substantial evidence supports the agency’s conclusion that Khatiwada’s
association with the Nepali Congress Party was not “one central reason” for the
Maoists’ first visit to Khatiwada’s family home and attempt to recruit Khatiwada,
the agency did not consider whether Khatiwada’s or his family’s political
affiliation was “a reason” for the Maoists’ targeting them.2 See Barajas-Romero v.
Lynch, 846 F.3d 351, 360 (9th Cir. 2017) (“We hold that ‘a reason,’” the standard
applicable to withholding, “is a less demanding standard than ‘one central
reason[,]’” the standard that governs asylum claims.). Nor does it appear that the
agency considered the Maoists’ motivation for their attacks on Khatiwada’s family
following the family’s refusal to cooperate with them during the first incident—the
agency did not expressly discuss whether Khatiwada’s political beliefs were one
central reason or a reason for the subsequent incidents. We remand so that the BIA
2
The Government concedes that the agency did not consider whether
Khatiwada might have satisfied the “a reason” standard and that remand is
appropriate if the Maoists might have been motivated by both political and non-
political factors.
3
may reconsider whether the nexus requirement for asylum or withholding was
satisfied here, and, if so, to evaluate whether Khatiwada has satisfied the other
requirements for those forms of relief.
2. Substantial evidence supports the agency’s determination that Khatiwada
has not shown he would more likely than not be tortured by or with the
acquiescence of a government official if he returned to Nepal. See 8 C.F.R.
§ 1208.16(c)(2). Khatiwada’s assertion that he would be tortured in the future
because some Maoists now hold positions in the Nepali government relies on a
series of inferences not compelled by the record. Khatiwada produced nothing
showing that the Maoists who targeted his family are the same as or linked to those
who now hold power; there are multiple rival Maoist factions in Nepal. We
therefore deny the petition with respect to the CAT claim.
GRANTED in part, DENIED in part, and REMANDED.
4