Dahal v. Barr

United States Court of Appeals
For the First Circuit

No. 18-1790

MADHAV PRASAD DAHAL,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS

Before

Kayatta, Circuit Judge,
Souter, Associate Justice,
and Selya, Circuit Judge.

Dilli Raj Bhatta 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.

July 18, 2019


Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 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

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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,

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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

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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-

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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, 139 S. Ct. 1148, 1154 (2019) (quoting

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (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

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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.

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 1

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 Dahal's case, the BIA and the Immigration Judge

attempted to show a fundamental change in conditions in Nepal by

pointing to several facts as stated in the Country Reports: (i)

Nepal's government reached a peace agreement with the Maoists in

2006 that formally ended the Maoist insurgency; (ii) Nepal held

free and fair elections in 2013; and (iii) Nepal adopted a new

constitution in 2015. IJ Decision 10-12; BIA Decision 1-2. In

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context, however, these facts do not "affect the specific

circumstances" of Dahal's claim of persecution. Palma-Mazariegos,

428 F.3d at 36.

As to the first, the 2006 peace agreement could not have

"negate[d]" Dahal's "particular fear" of persecution because Dahal

continued to face persecution even after the agreement was signed.

Id. at 35. Dahal testified that the Maoists had sent him a

threatening letter in 2008, had physically assaulted him in 2009,

and had shown up at his house and threatened to kill him in 2010.

IJ Decision 9-10.

As to the second, although the 2016 Country Report did

describe the 2013 election as "free" and "fair," id. at 12, the

BIA and the Immigration Judge failed to mention the very next

sentence in the Report, which indicates that Maoists continued to

persecute their political opponents during the election: "In an

effort to obstruct the 2013 elections, a breakaway Maoist faction,

the Communist Party of Nepal-Maoist, committed acts of political

violence and intimidation." U.S. Dep't of State, Country Reports

on Human Rights Practices: Nepal 21 (2016) ("2016 Country Report").

Thus, far from undercutting Dahal's fears, the Country Report on

the elections recognizes a remaining threat of Maoist persecution.

As to the third, the BIA and the Immigration Judge did

not explain why the promulgation of a new constitution in Nepal

diminished the risk of political persecution. In fact, other

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evidence from the Country Reports suggests that the risk is still

present. As the Immigration Judge acknowledged, the Country

Reports show that Nepal "continue[s] to suffer from human rights

problems"; that "there are reports of the government or its agents

committing arbitrary or unlawful killings"; and that the

government "has essentially abandoned its attempts to bring to

justice those insurgents who committed atrocities . . . up until

2006." IJ Decision 12; see BIA Decision 1 (noting "continued

insurgent activity and human rights problems").

The Immigration Judge tried to deflect these findings by

noting that this evidence of human rights abuses "has limited

significance" with respect to Dahal himself. IJ Decision 12. This

assertion, however, ignores the record facts that the Maoists are

now active participants in the government and have held key

leadership posts, facts that limit the efficacy of the peace

agreement, elections, and constitution to mitigate Dahal's

specific fears of persecution at the Maoists' hands. The BIA, in

the course of the appeal, sought to downplay the evidence favorable

to Dahal by noting that the Country Reports do not demonstrate

"systematic or pervasive persecution of active members in the

Nepali Congress Party." BIA Decision 1-2. But the Country Reports

plainly indicate that the Maoists have continued to persecute their

political opponents, see 2016 Country Report 21; U.S. Dep't of

State, Country Reports on Human Rights Practices: Nepal 2-3 (2013),

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and Dahal's own testimony shows that the Congress Party is one

such opponent. See supra, at 2-3.

In short, the information from the Country Reports on

which the BIA and the Immigration Judge relied cannot satisfy the

Government's burden to demonstrate by a preponderance of the

evidence that there has been a fundamental change in conditions in

Nepal affecting Dahal's circumstances. If anything, the evidence

from the Country Reports supports the view that Dahal still faces

a risk of politically driven persecution in Nepal.

2

Aside from the Country Reports, the BIA and the

Immigration Judge also pointed to the record facts of Dahal's own

case. Based on the Immigration Judge's findings, the BIA asserted

(i) that Dahal lived in Nepal "without physical harm by his alleged

persecutors" for "more than one year" prior to his departure from

Nepal; (ii) that "since 2010, [Dahal's] parents, wife, son[,] and

three siblings have lived in Nepal apparently without

persecution"; and (iii) that Dahal's "extended absence from Nepal

diminishe[d] the likelihood that he would be persecuted" upon

returning to Nepal. BIA Decision 2. Given other undisputed facts

from the record, however, these assertions do not by themselves or

combined with the Country Reports show a fundamental change in

country conditions rebutting the presumption of a well-founded

fear on Dahal's part.

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 The BIA's first claim (that Maoists did not persecute

Dahal for a one-year period between 2009 and 2010) carries little,

if any, weight. That is because Dahal's testimony, which the

Immigration Judge credited, indicated that he faced death threats

even after leaving Nepal in 2010. According to Dahal, relying on

his wife's account, Maoists came to his home later in 2010 and

told his family that he would be murdered upon his return from the

United States. IJ Decision 10; see Transcript of IJ Hearing at

49:6-18, In re Dahal (Exec. Office for Immigration Review July 25,

2017) (No. A200-173-934). In light of this more recent evidence

of persecution, the fact that Dahal was not harmed in the year

immediately preceding his departure from Nepal does not support

the finding of a relevant fundamental change. Moreover, even when

Dahal faced political persecution while living in Nepal between

1997 and 2009, there were often extended periods (sometimes lasting

several years at a time) during which Dahal did not confront

violence or receive threats. IJ Decision 7-8 (recounting a three-

year gap between incidents from April 1999 to September 2002); id.

at 9 (recounting a three-year gap from April 2004 to December

2007). Each time, however, the lull ended abruptly, and the

threats resumed. Dahal's past experiences therefore tend to show

that a one-year period of quiescence is not a reliable signal of

changed conditions.

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 The BIA's second assertion (that Dahal's family has been

free from persecution since 2010) mischaracterizes the record.

That is because Dahal testified that the Maoists shut off the water

at his family's home in 2012 or 2013. Transcript of IJ Hearing at

50:12-14, In re Dahal (No. A200-173-934). The decisions of the

BIA and the Immigration Judge never questioned the accuracy or

credibility of this testimony. In any event, even if the BIA's

description of the record evidence were accurate, it still would

be of limited significance. The fact that Dahal's family has not

been threatened while Dahal has been out of the country says very

little about whether Dahal himself will face persecution upon his

return to the country. Even when Dahal was living in Nepal and

was subject to political persecution by the Maoists, his family

members were targets of persecution to a limited degree at most,

suffering at the hands of the Maoists only to the incidental extent

that they served as the conduits by which the Maoists sought to

reach Dahal himself. See IJ Decision 10 (noting that Maoists came

to Dahal's family home in 2010 seeking to kill Dahal). Moreover,

the BIA and the Immigration Judge did not point to any record

evidence demonstrating that Dahal's family members shared his

political opinions or were members of the Congress Party. Thus,

there is no basis above the level of speculation for concluding

that Dahal's family members were "similarly situated" to him, and

the "lack of harm" to them accordingly is not "entitled to weight

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in the decisional calculus." Morales-Morales v. Sessions, 857

F.3d 130, 134 n.1 (1st Cir. 2017) (quoting Vasili v. Holder, 732

F.3d 83, 91 (1st Cir. 2013)).

Finally, the BIA's conclusory assertion that Dahal's

extended absence from Nepal lowers the likelihood of persecution

should not be given much, if any, weight. In light of evidence

from the Country Reports suggesting that human rights abuses and

Maoist persecution have persisted, Dahal's absence from Nepal does

not speak forcefully to the question whether or to what extent

underlying conditions in Nepal have changed in relation to him.

See, e.g., IJ Decision 12; 2016 Country Report 21. Moreover, as

noted, even while Dahal was living in Nepal, there were extended

periods during which Dahal received no threats of persecution, but

such periods of comparative calm never provided Dahal with security

against renewed threats at some point. See supra, at 12. Thus,

in light of the pattern of persecution Dahal faced while living in

Nepal, Dahal's period of absence from Nepal is of limited probative

value in assessing whether there has been a change in conditions

that should discount the basis for Dahal's fear of persecution.

3

In sum, the Country Reports on Nepal and the testimony

in Dahal's own case do not show that Nepal's conditions have

fundamentally changed in a way that affects the specific

circumstances of his claim, and the conclusions of the BIA and the

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Immigration Judge are not supported by substantial evidence. Under

that deferential standard, the decision below may be reversed or

vacated only if the "record is such as to compel a reasonable

factfinder to arrive at a contrary determination." Palma-

Mazariegos, 428 F.3d at 34. We view the record evidence here as

compelling a reasonable factfinder to conclude that the Government

has not met its burden to rebut the presumption of a well-founded

fear of persecution.

Given the Government's failure to rebut this

presumption, Dahal is statutorily eligible to seek asylum. Because

"[i]t remains to be determined, however, whether [Dahal] is

entitled to asylum as a matter of the discretion of the Attorney

General," Fergiste v. INS, 138 F.3d 14, 19 (1st Cir. 1998); see 8

U.S.C. § 1158(b)(1), we grant the petition for judicial review in

part, vacate the denial of asylum, and remand the case to the

agency to determine, "in the exercise of discretion on behalf of

the Attorney General," whether Dahal should be granted asylum,

Fergiste, 138 F.3d at 19-20; see 8 C.F.R. § 1208.14(a).

B

Next, we turn to Dahal's application for withholding of

removal. To be entitled to withholding of removal, Dahal must

establish that his "life or freedom would be threatened . . . on

account of race, religion, nationality, membership in a particular

social group, or political opinion" upon his return to Nepal. 8

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C.F.R. § 1208.16(b). To meet his burden, Dahal must demonstrate

a "clear probability" of persecution, which is a more stringent

standard than the "well-founded fear of persecution" that

determines an applicant's eligibility for asylum. Fergiste, 138

F.3d at 20 (quoting INS v. Stevic, 467 U.S. 407, 413 (1984)). If

he has carried his burden, withholding of removal is mandatory

unless a statutory exception barring relief applies. See INS v.

Aguirre-Aguirre, 526 U.S. 415, 420 (1999) (noting that

"withholding is mandatory unless the Attorney General determines

one of the exceptions applies," whereas "the decision whether

asylum should be granted to an eligible alien is committed to the

Attorney General's discretion").

As is true in the context of asylum claims, "some forms

of past persecution trigger a regulatory presumption that the

applicant is entitled to withholding of deportation." Fergiste,

138 F.3d at 20. In particular, if Dahal establishes that he has

"suffered past persecution," he is entitled to a presumption that

his "life or freedom would be threatened in the future" for the

purpose of withholding. 8 C.F.R. § 1208.16(b)(1)(i). To rebut

that presumption, the Government bears the burden to prove by a

preponderance of the evidence that country conditions have changed

such that it is no longer more likely than not that Dahal's life

or freedom would be threatened if he returned to Nepal. Id.

§ 1208.16(b)(1)(i)(A).

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 In this case, the BIA and the Immigration Judge both

concluded that Dahal had not shown the "clear probability" of

persecution necessary to be entitled to withholding of removal

because he had not met the less stringent "well-founded fear of

persecution" standard for asylum eligibility. As we have said,

however, the evidence shows that a well-founded fear of persecution

presumptively remains, making him eligible for asylum. We thus

have rejected the principal justification given by the BIA and the

Immigration Judge for denying Dahal's application for withholding

of removal and so now grant the petition for judicial review in

part and vacate the denial of withholding of removal.

We accordingly remand the case to the BIA for further

consideration of Dahal's withholding of removal claim. That said,

at least at this juncture, it is not apparent to us, based on the

record, that Dahal has failed to show his entitlement to the relief

of withholding. As noted before, the Immigration Judge and the

BIA credited Dahal's testimony that he faced death threats and

violence during and after the Maoist insurgency, which tends to

show that he has "suffered past persecution," so as to entitle him

to a presumption that his "life or freedom would be threatened"

upon his return to Nepal. 8 C.F.R. § 1208.16(b)(1)(i); see IJ

Decision 8 (noting that Dahal was told "he would be shot"); id. at

9 (noting that Maoists told Dahal that "they would shut down his

business and kill him"). And for reasons set out in discussing

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the asylum claim, the Government's evidence of changed country

conditions has little apparent effect in countering Dahal's

evidence of the threats just mentioned. But because the

Immigration Judge and the BIA have confronted the withholding

application only on an unsupportable assumption of his

ineligibility to claim asylum and so have not weighed the total

corpus of evidence offered in support of the withholding claim,

this evidence should now be assessed in the first instance by the

agency on remand (if it is necessary to reach the issue at all).

C

Finally, Dahal argues that substantial evidence does not

support the BIA's denial of his application for protection under

the Convention Against Torture. To obtain relief under the

Convention, Dahal must prove by objective evidence "'that it is

more likely than not that he will be tortured if he is deported.'"

Martinez v. Holder, 734 F.3d 105, 110 (1st Cir. 2013) (quoting

Elien v. Ashcroft, 364 F.3d 392, 398 (1st Cir. 2004)). Here, the

Immigration Judge and the BIA concluded that Dahal failed to show

by a preponderance of the evidence that he would be tortured upon

his return to Nepal. IJ Decision 15; BIA Decision 2-3. Dahal now

alleges in response that the "government has continually turned a

blind eye to the victims of Maoist torture." Brief for Petitioner

26. He does not, however, offer any record evidence to back up

this conclusory allegation, or to support the claim that he himself

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would be tortured if he were deported to Nepal. We therefore see

no sound reason to disturb the BIA's denial of relief under the

Convention.

III

Because substantial evidence does not support the BIA's

decision to deny Dahal's applications for asylum and withholding

of removal, we grant the petition for review in part and vacate

the denials of his asylum and withholding of deportation claims.

We deny the petition for review in part and affirm the denial of

relief sought under the Convention Against Torture. And we remand

the case for further proceedings.

So ordered.

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