Karki v. Holder

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH April 30, 2013
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court

FOR THE TENTH CIRCUIT

NARENDRA RAJ KARKI,
Petitioner, No. 12-9550
v.
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.

ON PETITION FOR REVIEW FROM
THE BOARD OF IMMIGRATION APPEALS

Submitted on the briefs:*

Khagendra Gharti-Chhetry, New York, New York, for Petitioner.

Stuart F. Delery, Acting Assistant Attorney General, Civil Division, U.S. Department of
Justice; Ethan B. Kanter, Deputy Chief, National Security Unit, Office of Immigration
Litigation; Paul F. Stone, Trial Attorney, Office of Immigration Litigation, Civil Division,
U.S. Department of Justice, Washington, D.C., for Respondent.

Before KELLY, McKAY, and O’BRIEN, Circuit Judges.

McKAY, Circuit Judge.

*
After examining the briefs and the 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) and 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
 Petitioner Narendra Raj Karki, a native and citizen of Nepal, petitions for review

of a decision of the Board of Immigration Appeals (BIA) affirming an order of the

immigration judge (IJ) that denied his application for asylum and restriction on removal

under the Immigration and Nationality Act (INA) and protection under the United

Nations Convention Against Torture (CAT).

BACKGROUND

Petitioner entered the United States in October 2007 in order to present a paper at a

forestry conference in Oregon. His visitor’s visa authorized him to remain in the country

until November 6, 2007. On November 14, 2007, Petitioner filed an asylum application,

which was denied by an asylum officer and referred to an immigration judge. Removal

proceedings were initiated against him in February 2008. At the removal proceedings,

Petitioner renewed his application for asylum and sought restriction on removal under the

INA and protection under the CAT, claiming that he had suffered past persecution and

feared future persecution based on his political opinion and membership in a particular

social group. He testified at the January 20, 2010 hearing through an interpreter. His

father, Man Bahadur Karki, also testified at the hearing.

A. Factual Background

Petitioner was born in August 1961 in Nepal. He has a wife and two daughters,

who remained in Nepal when he came to the United States. At the time of the hearing,

his older brother was a lawful resident in the United States, having entered this country in

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1995 to complete his Ph.D. Petitioner’s younger brother had entered the United States in

2004, had been granted asylum, and was also completing a Ph.D. Petitioner also has a

sister, who apparently still lived in Nepal at the time of the hearing.

At the immigration hearing, Petitioner testified that he had experienced past

persecution and feared future persecution from Maoists in Nepal because the Maoists

opposed both his work on financial development projects and his support of the Nepali

Congress party. Petitioner, who has an MBA, worked for several years for a forestry and

national parks project under the United Nations Development Program (UNDP), where

his job was to train and organize the public in financial development and related projects.

As part of this work, Petitioner “used to talk about the human rights, and the

development,” and trained individuals on “how to bring income and how to develop the

market management.” (R. at 121.) He emphasized the importance of economic

development and “always like[d to] bring the awareness to the public as a democratic

principle.” (R. at 139.) In the course of his work for the UNDP, Petitioner drove to

different villages to speak to the villagers about these ideas. When he did so, he testified,

the Maoists would sometimes stop him on the road and harass him, and they “always told

[him] to stop talking about democracy and try not to help to bring income to the public.”

(R. at 122.) He testified that the Maoists demanded that he not talk to the public about

financial development, democracy, and other issues of public awareness because it was

“against . . . their principle” for the public to develop and earn money. (R. at 121.)

Petitioner testified that he was also persecuted by the Maoists based on his support

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of the Nepali Congress party, which promotes democratic principles and opposes the

communist ideology promoted by the Maoists. Petitioner testified that, due to his father’s

political background in the Nepali Congress party, he and his three siblings were all

involved in politics. He said that he was involved with the Nepali Student Union when he

was a student. After he finished his education, he was a district secretary or assistant in

the Makwanpur District for the Nepali Congress Party, assisting the president and vice

president of the party, producing pamphlets and other documents, and doing work for the

village. He spent eight to twelve hours a month working for the party. At the

immigration hearing, Petitioner originally testified that he was a member of the Nepali

Congress party. For corroboration, Petitioner produced a letter written by the district

chairman of the Nepali Congress Party which identified Petitioner’s father as an “active

party member” and Petitioner as a “regular supporter” of the party. (R. at 260.) The

letter stated that Petitioner regularly participated in various political assemblies and other

party events, provided financial support to the party, and was “a bona fide, very active

and devoted on democracy.” (R. at 260.) The immigration judge pointed out that this

letter did not identify Petitioner as a member of the party. Petitioner then testified that he

had been a member of the Nepali Congress party in earlier years, but his work with the

UNDP prevented him from maintaining active membership in the party after 1997.

However, he continued to support the party. Petitioner told the IJ that he had an old party

membership card, but he did not bring it to the United States because he was not planning

on applying for asylum when he came here.

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 Petitioner testified that the Maoists made verbal and written requests for donations

from time to time. He refused these requests, but they sometimes took the money he had

in his pockets by force when he encountered them in the field. He said that the Maoists

also asked him for gasoline, stationary, and printing, but he never gave them these things.

He testified that the Maoists planted a flag on a rice field he owned in Nepal and took

control over it, then asked his father for 50,000 rupees to get the land back. Petitioner

said that he had learned about this incident shortly after he came to the United States in

October 2007.

Petitioner also testified about three specific instances of attempted or actual

physical violence directed at him or his family members. First, Petitioner testified that on

May 22, 2004, the Maoists exploded a bomb at his aunt and uncle’s house, killing his

aunt. Petitioner testified that the Maoists took responsibility for this attack and said it was

because his uncle had been a major in the Nepal Army and was a supporter of the Nepali

Congress Party. Petitioner provided newspaper articles corroborating this account.

Petitioner further testified that the Maoists called his home the next day when his wife

and his parents were there and threatened that his immediate family would meet the same

fate “if you do anything against us.” (R. at 124.)

Second, approximately five months later, on November 21, 2004, five of

Petitioner’s colleagues were killed when the UNDP vehicle in which they were riding

was bombed. Petitioner had intended to leave the office with them to go to the field, but,

at the last minute, his boss held him back to help with another task, and he thus escaped

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harm. Petitioner testified that he later learned the bomb was intended for him.

Specifically, he testified that the villagers told him the Maoists went to a village meeting

and told the people that Petitioner was the intended target of the attack, “and one day we

will get him.” (R. at 148.) Petitioner also provided a newspaper article reporting that

“Maoist cadres had ambushed and blown away Parsa Wildlife Reserve’s vehicle with

suspicions that Mr. Karki was traveling in the vehicle.” (R. at 209.) The article further

reported, “It has been learnt from his neighbors that Mr. Karki and his family have left his

home and hide in different places for safety.” (R. at 209.) Petitioner testified that he still

feels very bad when he sees the photographs of the aftermath of the attack and thinks of

the way his friends were killed. He is also still upset by his memories of the gruesome

scene, which he had to personally witness when he assisted at the scene after the attack.

He testified, “I still feel bad because one of our driver[s] was killed in that bomb, and his

body was hanging on the top of the tree, about 65 feet, and we had to take it out, piece by

piece, and I feel really agitated, . . . still thinking about that.” (R. at 123.)

Third, Petitioner testified about a physical assault he suffered on August 19, 2007.

While he was walking home in the evening after returning from field work, he was

attacked by three or four young Maoists who screamed, “Nepali government supporter is

coming, get him, get him.” (R. at 124.) He fell to the ground while attempting to run

away, and the boys dragged him and beat him, injuring his elbow, knees, shoulder, and

back. At the end of the attack, the boys said, “long live Maoist, . . . death for the

democratic supporters.” (R. at 125.) Petitioner testified that some neighbors heard the

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noise and saved him. They took him to the hospital, where he was treated and given pain

medication. Petitioner corroborated his account with an August 19 hospital document

stating “C/O: 1. Physical Assault. 2. Bruises on wrists and face. 3. Semi-uncons[c]ious.”

(R. at 216.) The document indicates that Petitioner was x-rayed, given an injection, and

advised to take medication upon discharge. Petitioner testified that he did not suffer any

permanent injuries from the assault.

Petitioner explained that he never sought help from the police in Nepal in

connection with those attacks because the Maoists had threatened his life if he reported

them to the police. He also thought it would be difficult for the police to actually help

him because the Maoists had power, so the police themselves were not secure.

Petitioner testified that he decided to apply for asylum after arriving in the United

States because his wife told him over the telephone that it would be dangerous for him to

return to Nepal. Petitioner testified he was on the Maoists’ “black list,” and “[w]hoever is

in the black list, those people will kill and make handicapped.” (R. at 126.) He testified

that it was not easy for his wife and children to remain in Nepal. He said the Maoists

called his house there from time to time, threatening his wife and asking, “where is your

husband? Where is that congress supporter?” (R. at 125.) His wife never told the

Maoists that he was in the United States. His wife and children sometimes stayed with

her parents or with friends, and, as a result, his children’s education had been affected.

Petitioner testified that the Maoists do not harm women and children directly, but he

considered his wife to be enduring mental torture because the Maoists regularly asked her

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where he was, suggested they might take his daughters to join in their group, and

repeatedly asked for money and food. Petitioner’s wife wanted him to bring her and the

children to the United States.

Petitioner testified that he filled out his asylum application himself, with help from

two friends of one of his brothers. In response to two specific questions about his or his

family’s involvement in organizations such as political parties, Petitioner typed only:

“My father is a retired government official and is a member of democratic party in

Nepal,” and “My father still associated with democratic party in Nepal and speaks for

democratic values including freely speaking and writing rights.” (R. at 272.) The IJ

asked him why he had not written on his asylum application that he had been a member

of the Nepali Congress Party as he testified at the hearing. Petitioner told the IJ he

thought the statement about his father would cover the whole family because his father

was the head of the family. He further stated that he might not have understood the

question.

Petitioner acknowledged, in response to questions from the IJ, that the State

Department report correctly stated that the Maoists tried to extort money from tourists

and anybody else they thought had money. But he testified the Maoists specifically

targeted him because he was a Nepali Congress Party supporter and because he had

helped “the public to increase the economic[] condition and . . . always educate[d] them

to self-sustain themselves, and that is against [the Maoists’] principle.” (R. at 138.) He

asserted that the Maoists were more interested in him for his political beliefs than for his

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money because he was “the democratic supporter and [he] always like[d to] bring the

awareness to the public as a democratic principle. And also [he] emphasize[d the need] to

develop the . . . economic. But communism is not that.” (R. at 139.) He said the Maoists

would not be satisfied if he gave them money, but would want him to join their

organization because he could bring others with him. He said he never considered joining

the Maoists because he supported the Nepali Congress Party and democracy. He did not

have a letter from the Maoists telling him in writing to stop his activities of advancing

democracy, but he said they called him and his wife on the phone and told him “verbally

[to] just leave the party and join their party.” (R. at 139.)

Petitioner’s seventy-four-year-old father entered the United States six months

before the immigration hearing on a tourist visa good for five years. Petitioner’s father

testified that Petitioner had been supporting and helping the Nepali Congress party since

he was a child, under his father’s guidance. Petitioner’s father testified that, when the

Maoists visited his house, they always asked about Petitioner, said he should tell

Petitioner to join and support the Maoists, and threatened to kill Petitioner if he did not

support the Maoists. He explained that, although he also feared the Maoists, he was

getting old and was “ready to die,” and he therefore did not worry about his own future.

(R. at 162.) However, he said he was very fearful and worried about his son’s life, and he

repeatedly begged the IJ to save Petitioner’s life. Petitioner also testified that his parents

faced less of a threat because of their age, since the Maoists do not directly attack the

elderly.

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B. The IJ’s Decision

After the January 20, 2010 hearing, the IJ ordered Petitioner removed to Nepal. In

his decision, the IJ reviewed the hearing testimony and Petitioner’s corroborating

evidence. The IJ found that Petitioner was “not a completely credible witness” because

he had embellished his testimony by stating he was a member of the Nepali Congress

party, when he was actually just a supporter. (R. at 55.) The IJ concluded that Petitioner

had embellished his testimony on this point “in order to cure one of the main problems

with his application for asylum, and that is whether or not there is a nexus between [his]

fear of return to Nepal, and one of the protected grounds.” (R. at 55-56.) The IJ stressed

“[t]he necessity of showing that connection” in order to qualify for asylum or restriction

on removal under the INA. (R. at 57.)

The IJ concluded that Petitioner had failed to establish a nexus between his alleged

fear of persecution and a statutorily protected ground. The IJ concluded that the Maoists

approached him only to extort money and recruit him for their organization. “In other

words, they are interested in his contribution to their organization; they are not interested

in harming him because of any political opinion or any social group membership.” (R. at

58.) The IJ also concluded that Petitioner failed to show past persecution because he was

not harmed in the bombing attack in which his coworkers were killed, and he suffered no

permanent injuries in the August 19 assault. The IJ reasoned that Petitioner’s father’s

willingness to return to Nepal also “tend[ed] to negate the reasonableness of any fear

which [Petitioner] may have.” (R. at 58.) Finally, the IJ concluded there was no evidence

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that the government of Nepal would harm Petitioner or acquiesce in his torture. The IJ

accordingly denied Petitioner any relief.

C. The BIA’s Decision

On appeal, the Board of Immigration Appeals rejected the IJ’s conclusion that

Petitioner was not completely credible. The BIA agreed that Petitioner had embellished

his testimony regarding his affiliation with the Nepali Congress party, but the BIA

concluded that this embellishment only affected Petitioner’s burden of persuasion, not his

credibility. However, the BIA agreed with the IJ that Petitioner was not entitled to relief

under the INA or CAT. The BIA agreed that the Maoists’ actions toward Petitioner were

motivated by their desire to extort money or recruit him, and the BIA concluded that

“[t]he record does not reflect that Maoists had the intention to persecute [Petitioner] even

partly because of his political opinion or a political opinion imputed to him.” (R. at 4.)

The BIA affirmed the IJ’s conclusion that the incidents described by Petitioner did not

rise to the level of past persecution. The BIA also agreed with the IJ that Petitioner’s

father’s willingness to return to Nepal negated the reasonableness of Petitioner’s asserted

fear of returning to Nepal. The BIA thus concluded that Petitioner was not eligible for

asylum or restriction on removal because he had not shown past persecution or a fear of

future persecution based on his political opinion. The BIA further concluded that

Petitioner was not eligible for relief under the CAT because he had not shown that the

government of Nepal was likely to torture him or acquiesce in his torture if he returned to

Nepal. The BIA accordingly dismissed Petitioner’s appeal. Petitioner petitions for

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review of that decision.

DISCUSSION

“In our review of the agency’s decision, we decide purely legal questions de

novo.” Ritonga v. Holder, 633 F.3d 971, 974 (10th Cir. 2011). “Agency findings of fact

are reviewed under the substantial evidence standard.” Id. Thus, “the 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). Under this standard, “our duty is to

guarantee that factual determinations are supported by reasonable, substantial and

probative evidence considering the record as a whole.” Uanreroro v. Gonzales, 443 F.3d

1197, 1204 (10th Cir. 2006) (internal quotation marks and brackets omitted). “Although

our review of the BIA’s conclusion that a person does not have a well-founded fear of

persecution is deferential, the BIA may not simply overlook evidence in the record that

supports the applicant’s case.” Espinosa-Cortez v. Att’y Gen., 607 F.3d 101, 113 (3d Cir.

2010). “[T]he BIA is not permitted simply to ignore or misconstrue evidence in the

asylum applicant’s favor.” Id. at 107. While we review the BIA’s decision, not the IJ’s,

we “may consult the IJ’s opinion to the extent that the BIA relied upon or incorporated

it.” Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir. 2007). “Finally, our review is

confined to the reasoning given by the [agency], and we will not independently search the

record for alternative bases to affirm.” Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir.

2004).

Because Petitioner applied for asylum following the enactment of the REAL ID

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Act in 2005, his burden of proof is set forth in 8 U.S.C. § 1158(b)(1)(B)(i). To qualify for

asylum, Petitioner must establish refugee status, which requires proof 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 [him].’” Dallakoti v. Holder, 619 F.3d

1264, 1268 (10th Cir. 2010) (quoting § 1158(b)(1)(B)(i)). “[T]he BIA [has] interpreted

‘one central reason’ to mean ‘the protected ground cannot play a minor role in the alien’s

past mistreatment or fears of future mistreatment. That is, it cannot be incidental,

tangential, superficial, or subordinate to another reason for harm.’” Id. (quoting In re

J-B-N & S-M, 24 I.&N. Dec. 208, 214 (BIA 2007)).

There are essentially three ways to establish refugee status: (1) showing a well-

founded fear of future persecution; (2) showing past persecution, which creates a

rebuttable presumption of a well-founded fear of future persecution; and (3) showing

“past persecution so severe as to demonstrate compelling reasons for being unwilling or

unable to return,” even without any danger of future persecution. Krastev v. INS, 292

F.3d 1268, 1270-71 (10th Cir. 2002) (internal quotation marks omitted). “Aliens basing

their asylum claims upon a well-founded fear of future persecution must show both a

genuine, subjective fear of persecution, and an objective basis by credible, direct, and

specific evidence in the record, of facts that would support a reasonable fear of

persecution.” Estrada-Escobar v. Ashcroft, 376 F.3d 1042, 1046 (10th Cir. 2004)

(internal quotation marks omitted). “Persecution is the infliction of suffering or harm

upon those who differ (in race, religion, or political opinion) in a way regarded as

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offensive, and requires more than just restrictions or threats to life and liberty.”

Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005) (internal quotation marks

omitted). “Persecution under this section means not only persecution by the government

but also by a non-governmental group that the government is unwilling or unable to

control.” Estrada-Escobar, 376 F.3d at 1046 (internal quotation marks omitted). “Once

an applicant has established his or her refugee status and thus eligibility for asylum, the

Attorney General exercises discretionary judgment in either granting or denying asylum.”

Krastev, 292 F.3d at 1271 (internal quotation marks omitted).

Restriction of removal likewise requires an applicant to prove persecution based

on one of the protected grounds. To be entitled to restriction on removal, an applicant

must show a “‘clear probability of persecution’ on account of one of the statutorily

protected grounds.” Uanrerero, 443 F.3d at 1202 (quoting Elzour, 378 F.3d at 1149).

“Applicants who cannot establish a well-founded fear under asylum standards will

necessarily fail to meet the higher burden of proof required for [restriction on] removal.”

Id.; see also 8 U.S.C. § 1231(b)(3). However, “[a]lthough a grant of asylum is in the

discretion of the Attorney General, restriction on removal is granted to qualified aliens as

a matter of right.” Ismaiel v. Mukasey, 516 F.3d 1198, 1204 (10th Cir. 2008).

Petitioner argues that the BIA and IJ erred in concluding he failed to show past

persecution, a well-founded fear of future persecution, and a nexus between the alleged

persecution and his political opinion. He also argues that the BIA and IJ erred in

concluding he had not established his entitlement to relief under the CAT. We address

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each argument in turn, beginning with Petitioner’s argument regarding the nexus between

the alleged Maoist persecution and his political opinion.

A. Nexus between persecution and political opinion

The BIA concluded that the Maoists’ actions toward Petitioner were motivated

only by their desire to extort money or recruit him and that “[t]he record does not reflect

that Maoists had the intention to persecute [Petitioner] even partly because of his political

opinion or a political opinion imputed to him.” (R. at 4.) We agree with Petitioner that

this factual determination is not “supported by reasonable, substantial and probative

evidence considering the record as a whole.” Uanrerero, 443 F.3d at 1204.

As Petitioner notes, the BIA rejected the IJ’s adverse credibility determination,

even though it agreed that Petitioner had embellished his testimony regarding his political

affiliation with the Nepali Congress party. However, after indicating that Petitioner’s

testimony was credible, the BIA improperly ignored substantial, probative testimony

demonstrating that the Maoists persecuted Petitioner based on his political opinion. See

Espinosa-Cortez, 607 F.3d at 107.

Petitioner testified that the Maoists were mainly interested in him because of his

pro-democracy beliefs, public advocacy efforts, and support of the Nepali Congress party.

His testimony regarding the Maoists’ regular harassment while he was working for the

UNDP illustrates that the Maoists were both aware of and unhappy with his work in

promoting financial development and democratic principles. Far from simply asking him

to provide money or join their organization, the Maoists “always told [Petitioner] to stop

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talking about democracy” and “about financial development and other public awareness”

issues that were “against . . . their principle.” (R. at 121-22.) When the Maoists took

responsibility for bombing Petitioner’s uncle’s house, they asserted that they did so based

on the uncle’s position in the Nepal Army and his support of the Nepali Congress. They

also warned Petitioner’s family that they would be treated likewise if they “d[id] anything

against [the Maoists].” (R. at 124.) Only a few months later, while Petitioner continued

his financial development work for the UNDP, a UNDP vehicle he should have been

traveling in was bombed by the Maoists, who told the villagers that Petitioner was their

intended target and that they would “get him” one day. (R. at 148.) Petitioner’s

testimony also established that the Maoist youths who assaulted him in August 2007

specifically targeted him based on his political opinions. They attacked him with cries of

“Nepali government supporter is coming, get him,” and, after the attack was over, they

said, “long live Maoist, . . . death for the democratic supporters.” (R. at 124-25.) The

Maoists also made threatening phone calls to Petitioner and his wife in which they

referred to Petitioner as “that congress supporter” and demanded that he “leave the party.”

(R. at 125, 139.)

The BIA simply ignored this substantial evidence of the political motivation for

the Maoists’ actions, relying instead on the fact that the Maoists also attempted to extort

Petitioner and recruit him to join their organization, as they do to many individuals in

Nepal. However, these extortion and recruitment efforts do not negate Petitioner’s

testimony that he was specifically targeted and harassed based on his political opinion.

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When the BIA overruled the IJ’s adverse credibility determination, it became obligated to

treat Petitioner’s testimony as credible, but it failed to do so. The BIA’s conclusion that

“[t]he record does not reflect that Maoists had the intention to persecute [Petitioner] even

partly because of his political opinion or a political opinion imputed to him” (R. at 4)

demonstrates that the BIA impermissibly either ignored or overlooked evidence in the

record that supported Petitioner’s case. See Espinosa-Cortez, 607 F.3d at 107, 113.

In its answer brief, the government relies on the Supreme Court’s decision in INS

v. Elias-Zacarias, 502 U.S. 478 (1992). In that case, the Supreme Court rejected the

Ninth Circuit’s conclusion that “a guerilla organization’s attempt to conscript a person

into its military forces necessarily constitutes persecution on account of political

opinion.” Id. at 481 (internal quotation marks and ellipsis omitted). The Court noted that

“[e]ven a person who supports a guerilla movement might resist recruitment for a variety

of reasons—fear of combat, a desire to remain with one’s family and friends, a desire to

earn a better living in civilian life, to mention only a few.” Id. at 482. The Court then

stated, “The record in the present case not only failed to show a political motive on Elias-

Zacarias’ part; it showed the opposite. He testified that he refused to join the guerillas

because he was afraid that the government would retaliate against him and his family if

he did so.” Id. The Court rejected the view that “not taking sides with any political

faction is itself the affirmative expression of a political opinion.” Id. at 483. Moreover,

even if this were a political opinion, the Court concluded, the petitioner had not shown he

had a “‘well-founded fear’ that the guerillas will persecute him because of that political

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opinion, rather than because of his refusal to fight with them.” Id.

Under Elias-Zacarias, an individual’s refusal to join an organization is insufficient

in itself to demonstrate that the organization’s persecution was based on the individual’s

actual or imputed political opinion, rather than retaliation for the individual’s resistance.

See Ustyan v. Ashcroft, 367 F.3d 1215, 1217-18 (10th Cir. 2004). However, where other

factors are present, the individual’s political opinion may be a central reason for

persecution from a group that attempts to forcibly recruit him, even if the organization’s

initial targeting of the individual was not politically motivated. In Ustyan, we

distinguished the situation before us there—a mere refusal to fight—from the facts of the

case relied upon by the petitioner, Melkonian v. Ashcroft, 320 F.3d 1061 (9th Cir. 2003),

where the Ninth Circuit held that a petitioner had demonstrated a well-founded fear of

political persecution. In Melkonian, we noted, the petitioner had established that (1) “his

family felt bound to side with the Georgians”; (2) his family had “suppl[ied] Georgian

fighters with fruit and with money for weapons”; (3) “his father-in-law spoke out against

[the other side’s] tactics and in favor of Georgian Christianity”; and (4) the other side

“specifically targeted . . . men [of his ethnicity] to conscript and send to the front line

where casualties ordinarily are the highest.” Ustyan, 367 F.3d at 1217 (citing Melkonian,

320 F.3d at 1066-68) (internal quotation marks and brackets omitted). “This evidence

was specifically cited by the Ninth Circuit to distinguish the general rule of Elias-

Zacarias, noted above, that coercive recruitment tactics and an applicant’s resistance

thereto do not reflect the kind of social/political animus necessary to support an asylum

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claim.” Id. By contrast, we noted, “Mr. Ustyan ha[d] not cited to any comparable

evidence in the record developed for this case.” Id.

The Third Circuit has likewise distinguished the general rule of Elias-Zacarias

where there was evidence of more than a mere refusal to concede to forcible recruitment

efforts. In Espinosa-Cortez, the Third Circuit held that a petitioner had demonstrated past

political persecution from the FARC, an anti-government terrorist organization in

Colombia, where the petitioner engaged in protracted resistance to FARC’s recruitment

efforts and “made his anti-FARC views known to his persecutors in rejecting their

advances.” Espinosa-Cortez, 607 F.3d at 112-13. The Third Circuit reasoned:

[E]ven if . . . Espinosa-Cortez was not initially targeted on account of
imputed political beliefs . . . he was eventually threatened, at least in part,
on account of his political beliefs. That is, a reasonable adjudicator would
be compelled to conclude that the FARC, by threatening a government-
affiliated person after that person made his anti-FARC views known, had
threatened persecution at least in part on account of the victim’s political
beliefs.

Id. Other circuits have reached similar conclusions. See Martinez-Buendia v. Holder,

616 F.3d 711, 715-16 (7th Cir. 2010); Delgado v. Mukasey, 508 F.3d 702, 707-08 (2d Cir.

2007).

Here, Petitioner demonstrated much more than forcible recruitment efforts.

Indeed, from the start, the Maoists’ demands focused on Petitioner’s public statements

regarding democracy, financial development, and other political issues that were against

the Maoists’ communist principles. We do not see how these demands can be viewed as

anything other than politically motivated. Nor does the record support the view that the

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physical attacks on Petitioner and his family were motivated by recruitment or extortion

efforts rather than Petitioner’s and his family’s political opinions. Moreover, as in

Espinosa-Cortez, the Maoists were aware that Petitioner opposed them on political

grounds, since he publicly supported the Nepali Congress party and advocated democratic

and economic principles contrary to the Maoists’ principles. Indeed, the Maoists

specifically referred to Petitioner by his political opinion rather than by another label. For

instance, when they made threatening phone calls to his wife, they asked for “that

congress supporter” (R. at 125), not “that extortion resister.” The record as a whole

simply does not support the BIA’s conclusion that the Maoists were motivated only by

their desire to recruit Petitioner to their cause or extort money from him. Rather, the

record compels the conclusion that Petitioner’s political opinion was a central reason for

the Maoists’ actions. We therefore conclude that the agency’s decision cannot be upheld

on this ground.

B. Past persecution

We turn now to the BIA’s alternative conclusion that the Maoists’ actions were not

sufficiently severe to rise to the level of past persecution. Because the BIA relied on the

IJ’s more complete analysis on this issue, we look to the IJ’s opinion to determine the

basis for the agency’s decision. The IJ first considered the August 2007 attack on

Petitioner. After noting that Petitioner was released from the hospital after one or two

hours and suffered no permanent injury, the IJ concluded that this physical assault was

not sufficiently severe to qualify as persecution. The IJ then considered the November

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2004 car bombing that killed five of Petitioner’s colleagues. The IJ concluded this

bombing could not be considered persecution of Petitioner because he “did not personally

suffer anything from this attack.” (R. at 56.) The IJ thus disregarded this evidence in

determining whether the Maoists’ actions rose to the level of persecution.

The IJ erred in relying on the absence of permanent physical harm to find that

Petitioner was not persecuted by the Maoists. Nothing in the pertinent statutes or relevant

precedents suggests that an applicant must be permanently maimed in order to

demonstrate past persecution. The record shows that the beating Petitioner suffered

resulted in injuries serious enough to require medical care, with the hospital documents

indicating that Petitioner was rendered semi-unconscious in the attack. Regardless of

whether Petitioner was permanently injured in this attack, it does not seem to be a minor

incident that can be brushed off as insignificant. Cf. Witjaksono v. Holder, 573 F.3d 968,

977 (10th Cir. 2009) (holding that physical assaults did not rise to the level of persecution

where they did not “requir[e] medical attention”). Additionally, Petitioner presented both

testimony and a corroborating newspaper report to prove that he was the intended target

of the lethal car bombing. The fact that he survived this attempt on his life due to a last-

minute change in his travel plans does not prevent him from relying on this incident to

prove he was persecuted by the Maoists. We agree with the Eleventh Circuit that “an

attack can be ‘physical’ and constitute a form of persecution even if the intended target of

the attack is not actually struck by the attacker’s projectile.” Mejia v. U.S. Att’y Gen., 498

F.3d 1253, 1257 n.7 (11th Cir. 2007); see also Begzatowski v. INS, 278 F.3d 665, 670 (7th

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Cir. 2002) (“[W]e previously have rejected attempts by the BIA to impose on asylum

applicants the additional burden of establishing permanent or serious injuries as a result

of their persecution.”). “Put simply, attempted murder is persecution.” Sanchez Jimenez

v. U.S. Att’y Gen., 492 F.3d 1223, 1233 (11th Cir. 2007). The IJ erred in disregarding the

attempt on Petitioner’s life as evidence of past persecution and in minimizing the import

of the physical assault he suffered.

The IJ and BIA also failed to consider other supporting evidence, such as

Petitioner’s testimony that the Maoists seized his rice field. “Confiscation of property has

been cited as one type of action that can cross the line from harassment to persecution.”

Ouda v. INS, 324 F.3d 445, 454 (6th Cir. 2003). Moreover, the BIA and IJ appear not to

have considered evidence of the threats Petitioner received both before and after he was

targeted in a lethal bombing and physically assaulted. While threats alone are insufficient

to constitute persecution, threats should be considered in assessing the cumulative impact

of all of the mistreatment a petitioner suffered. Mejia, 498 F.3d at 1257. “We do not

look at each incident in isolation, but instead consider them collectively, because the

cumulative effects of multiple incidents may constitute persecution.” Ritonga, 633 F.3d

at 975. In this case, we conclude the record compels the conclusion that Petitioner

suffered past persecution, giving rise to a rebuttable presumption of a well-founded fear

of future persecution.1

1
As noted above, a well-founded fear of future persecution is not required when
the level of past persecution is sufficiently severe. See Krastev, 292 F.3d at 1270-71. On

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C. Well-founded fear of future persecution

The BIA concluded that Petitioner had not demonstrated a well-founded fear of

future persecution because he had not shown past persecution and because his father’s

willingness to return to Nepal negated the reasonableness of his asserted fear of returning

to Nepal. As previously noted, the agency failed to consider significant relevant evidence

in assessing whether Petitioner faced past persecution. Moreover, the agency’s reliance

on Petitioner’s father’s testimony completely fails to consider the explanations given by

Petitioner and his father as to why Petitioner’s father, unlike Petitioner, was willing to

return to Nepal. Petitioner’s father did not state that it was safe for him to return to

Nepal—he simply expressed the fatalistic view that he did not mind returning to Nepal

because he was old and ready to die. This testimony cannot reasonably be taken to

support the view that Petitioner’s fear of returning to Nepal was unfounded.

The agency’s decision to deny Petitioner’s claims for asylum and restriction on

removal cannot be upheld on any of the grounds given by the BIA. We accordingly grant

the petition for review as to these claims. On remand, the agency should determine (1)

whether Petitioner’s past persecution was sufficiently severe that he did not need to

demonstrate a well-founded fear of future persecution, and, if not, (2) whether changed

appeal, the parties do not address whether the past persecution in this case would rise to
that level of severity. Because we hold that the BIA erred in concluding that Petitioner
had not shown a well-founded fear of future persecution, we do not address whether the
level of past persecution was sufficiently severe to make Petitioner eligible for asylum on
this ground as well.

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country conditions or the possibility of internal relocation are sufficient to rebut the

presumption that he has a well-founded fear of future persecution. See Krastev, 292 F.3d

at 1270-71.

D. Convention Against Torture

Petitioner also seeks review of the BIA’s denial of his CAT claim. “Article 3 of

the Convention Against Torture prohibits the return of an alien to a country where 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) (internal quotation marks and brackets omitted).

“‘Acquiescence of a public official requires that the public official, prior to the activity

constituting the torture, have awareness of such activity and thereafter breach his or her

legal responsibility to prevent such activity.’” Id. (quoting 8 C.F.R. § 1208.18(a)(7)).

This standard does not require “actual knowledge, or willful acceptance” by the

government. Id. (internal quotation marks omitted). “Rather, willful blindness suffices to

prove acquiescence.” Id. (internal quotation marks and brackets omitted).

The IJ and BIA concluded that Petitioner was not entitled to relief under the CAT

because he had not demonstrated that government officials would be likely to acquiesce

in his torture upon his return to Nepal. Petitioner argues that the agency’s analysis was

flawed because the IJ and BIA failed to consider relevant record evidence, particularly a

key State Department report. According to that report, the Maoists won a plurality of

seats in the 2008 elections, installed a Maoist prime minister, and proclaimed Nepal a

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federal democratic republic. The report indicates that “Maoists frequently employed

arbitrary and unlawful use of lethal force, including torture and abduction.” (R. at 176.)

Furthermore, “[d]uring [2008] Maoists committed 141 acts of torture, according to [the

Center for Victims of Torture, Advocacy Forum–Nepal]. The government failed to

conduct thorough and independent investigations of reports of security force or

Maoist/[Maoist-affiliated Youth Communist League] brutality and generally did not take

significant disciplinary action against those involved.” (R. at 179). Petitioner argues that

he is likely to be a victim of Maoist torture if he returns to Nepal. The Maoists have

shown continued interest in him, regularly asking his wife and father about his location

and issuing threats against him. Moreover, Petitioner argues, he has been placed on the

Maoists’ black list, which makes him likely to be killed or maimed by the Maoists if he

returns to Nepal.

In its answer brief, the government argues there is no evidence that the Nepali

government has enough information about Petitioner’s situation to be willfully blind to

any possible torture, since Petitioner admitted he did not inform government authorities

of his fear of harm from the Maoists. However, this argument essentially transforms the

willful blindness standard into an actual knowledge requirement. Petitioner presented

evidence that the government is aware of and does not prevent the Maoists’ frequent acts

of torture. Petitioner does not need to present evidence that the government knows of the

specific threat against him in order to show that the government would likely turn a blind

eye to his torture if he returned to Nepal. See Zheng v. Ashcroft, 332 F.3d 1186, 1196

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(9th Cir. 2003) (“The correct inquiry as intended by the Senate is whether a respondent

can show that public officials demonstrate ‘willful blindness’ to the torture of their

citizens by third parties, or as stated by the Fifth Circuit, whether public officials ‘would

turn a blind eye to torture.’” (quoting Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 355 (5th

Cir. 2002))). The case the government cites for support, Cruz-Funez v. Gonzales, 406

F.3d 1187 (10th Cir. 2005), is distinguishable. There, the petitioners faced a threat from a

particular individual, and there was no evidence that public officials were aware of or had

acquiesced in any previous acts of torture by this individual or his employees. See id. at

1192. Under those circumstances, the fact that the petitioners had not informed the

government of the individual’s threats against them prevented the conclusion that the

government would acquiesce in whatever actions the individual took against them. Id.

Here, on the other hand, Petitioner’s evidence that the government regularly fails to take

action to prevent or punish Maoist acts of torture makes this a very different case.

The record as a whole simply does not support the BIA’s conclusion that Petitioner

failed to show that public officials in Nepal would likely acquiesce in his torture by the

Maoists if he returns to Nepal. We accordingly grant the petition for review as to

Petitioner’s CAT claim as well. However, we note that there has been no agency fact-

finding on the likelihood that Petitioner will be tortured if he returns to Nepal, and on

remand the agency may consider whether Petitioner has shown a sufficient likelihood of

torture to be entitled to CAT relief.

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 III. CONCLUSION

For the foregoing reasons, we GRANT the petition for review, VACATE the

BIA’s affirmance of the immigration judge’s order, and REMAND for further

proceedings in accordance with this opinion.

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