Budhathoki v. Garland

1

MAHESH BUDHATHOKI, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.

No. 16-70115

United States Court of Appeals, Ninth Circuit

May 12, 2022

NOT FOR PUBLICATION

Submitted May 9, 2022 ^[**] Pasadena, California

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A201-190-044

Before: McKEOWN and OWENS, Circuit Judges, and HELLERSTEIN ^[***] District Judge.

MEMORANDUM ^[*]

Mahesh Budhathoki, a native and citizen of Nepal, petitions for review of the Board of Immigration Appeals' ("BIA") decision dismissing his appeal of the immigration judge's ("IJ") decision denying his applications for asylum and withholding of removal. "Where, as here, the BIA agrees with and incorporates specific findings of the IJ while adding its own reasoning, we review both decisions." Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016). We review factual findings for substantial evidence. Id. "Our review is limited to those grounds explicitly relied upon by the BIA." Romero v. Garland, 7 F.4th 838, 840 (9th Cir. 2021) (per curiam) (citation omitted). As the parties are familiar with the facts, we do not recount them here. We grant the petition for review and remand for further proceedings.

Budhathoki alleged that he was a member of the Nepali Congress Party, and that he was harmed on account of his political opinion by members of the Maoists and the Young Communist League ("YCL"). Budhathoki testified that he experienced two main incidents with members of the Maoists or the YCL. First, in June 2006, Budhathoki was beaten by Maoists in the jungle until he became unconscious. Second, in April 2008, on election day, YCL members threatened to kill Budhathoki and put a gun to his head at a tea shop, but fled when police officers entered the shop. Budhathoki testified that he did not report either incident to government authorities because he believed that they would not be of any assistance.

The BIA agreed with the IJ that, even if Budhathoki was credible, he failed to establish past persecution. The BIA rested this determination on the sole ground that Budhathoki failed to show that the past harm he suffered was inflicted by either the Nepalese government or any group or individuals that the government was unable or unwilling to control.^[1] See Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc) (setting forth requirements to show past persecution, including that "the persecution was committed by the government, or by forces that the government was unable or unwilling to control" (citation omitted)).

We have "long held that a victim of abuse need not report it to government authorities to establish the government's inability or unwillingness to protect him." Id. at 1064. Rather, "[w]hether a victim has reported or attempted to report violence or abuse to the authorities is a factor that may be considered, as is credible testimony or documentary evidence explaining why a victim did not report." Id. at 1069.

Here, the IJ rejected Budhathoki's assertion that the government authorities would be unable or unwilling to protect him from the Maoists and YCL. Referring to a report titled "Major incidents of terrorist violence in Nepal, 1999-2010," found at AR 313-17, the IJ stated that Budhathoki's view was "refuted by the background documents . . . that note incidents of the police going after and killing Maoists during the 2006 to 2008 period, which is the time period that [Budhathoki] asserts that the incidents of confrontation occurred to him" and showed that the Nepalese "government was challenging and killing Maoists during the period of time when [Budhathoki] asserts that he suffered these incidents." In addition, regarding the second incident in 2008, the IJ noted that "the police actually were present either during the latter portion or immediately following the portion of [Budhathoki's] contacts with the YCL members in the tea shop, yet [Budhathoki] took no action to report the incident to the police such that they would have been in a position to investigate, follow, arrest or detain or otherwise take action against the YCL members who had threatened [Budhathoki] in the tea shop."

However, as the government acknowledges in its answering brief, a 2007 report from the U.S. State Department, Bureau of Democracy, Human Rights, and Labor ("2007 State Department Report"), found at AR 347-68, "shows that, in the years following the November 2006 peace agreement that ended the Maoists' decade-long insurgency, the Nepal government and the police often did not intervene or investigate the violent actions committed by the Maoists and YCL members." Among other things, this report states:

• "Nepal . . . is in a state of political transition. It is operating under an interim political system . . . . [It has] a multiparty coalition government, which includes members of the Communist Party of Nepal-Maoist (CPN-M)." AR 347.

• "The November 2006 peace agreement between the then-Seven-Party alliance and the Maoists ended the decade-long insurgency and called for the Nepal Police (NP) and the Armed Police Force (APF) to enforce law and order across the country. Authorities reestablished many police posts, but Maoists, or their subsidiary organization, the Young Communist League (YCL), prevented some from being reestablished and subsequently

...