Kc v. Holder, Jr. , 443 F. App'x 383 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
October 18, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
SUSHMA KC,
Petitioner,
v. No. 11-9502
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before LUCERO, BALDOCK, and TYMKOVICH, Circuit Judges.
Sushma KC petitions for review of the Board of Immigration Appeals’
(“BIA”) denial of her motion to reopen or reconsider its previous decision
denying KC asylum, withholding of removal, and protection under the Convention
Against Torture (“CAT”). Because the BIA abused its discretion by denying
*
After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
KC’s motion to reopen or reconsider, we grant the petition for review in part,
deny it in part, and remand for further proceedings.
I
A
KC is a native and citizen of Nepal, a country that was plagued by an
insurgency led by various Maoist groups in the 1990s and early 2000s. This
insurgency featured kidnappings, “disappearances,” violence, and extortion. At
her asylum hearing, KC testified that she had been active in the Nepali Congress
Party (“NCP”), a non-Maoist political party, since 1991. As part of her work for
the NCP, she became the head of “Save the Children,” an effort to prevent the
Maoists from recruiting orphaned children as child-soldiers. According to KC’s
testimony, because the Maoists did not appreciate her attempts to rescue children
whom they sought to impress into their army, they embarked on a campaign of
intimidation designed to deter her from her activities on behalf of Save the
Children and the NCP.
First, the Maoists told KC’s father-in-law (himself a long-time Nepalese
political figure) to “stop” KC from engaging in anti-Maoist activities. Her father-
in-law relayed this warning to KC, but she continued her activities. Some time
later, in July 2003, a Maoist called KC and threatened her with harm if she did
not stop her activity with Save the Children. The caller also told her she should
leave the NCP and join the Maoists. Following this incident, KC filed a police
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report, to no effect. Because of the threats she had received, KC temporarily left
Nepal in September 2003 at the urging of her family.
After KC returned to Nepal in 2004, the Maoists demanded that she pay a
fine of 300,000 rupees (about $4,000 or $5,000)—a large sum of money in Nepal.
At her asylum hearing, the Immigration Judge (“IJ”) asked KC why the Maoists
imposed this fine on her. KC responded, “[T]hey told me to leave [the] Congress
party.” She further explained, “They just threatened me that if you don’t give this
money and don’t leave the party, we will know what to do.” On cross-
examination, she stated that the Maoists told her to pay the money “[b]ecause I
was the one in the party.”
KC did not pay the fine, and did not leave the NCP. In September 2004,
about a month after the telephone threats, KC’s husband suddenly vanished.
Approximately four days after he disappeared, she received a call from him,
saying he would come home soon. During the call, he “was very scared and his
voice was shivering.” KC testified that she never saw her husband again. She
presented no evidence at the hearing, however, directly connecting her husband’s
disappearance to the Maoists.
KC also testified that on October 9, 2004, Maoists detained her and her
companions, and began to beat them until neighboring villagers came to their
rescue. As a result of the beating, the hospital treated KC for bruises, scratches,
and bleeding. About a week later, KC’s mother-in-law received a phone call
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stating that if KC did not pay the 300,000 rupee fine, the Maoists would “cut your
daughter-in-law’s head [off].” At this point, in November 2004, KC left Nepal
for the United States.
B
After arriving in this country, KC filed a timely application for asylum,
withholding of removal, and protection under the Convention Against Torture.
On June 23, 2008, an IJ denied her applications, and ordered her to voluntarily
depart or be removed to Nepal. In his oral decision, the IJ credited KC’s
testimony described above. In particular, he noted the threats she received, and
that “the most recent and graphic of them was that her head would be cut off
unless she paid 300,000 rupees.” The IJ concluded, however, that KC failed to
satisfy the “one central reason” test, see 8 U.S.C. § 1158(b)(1)(B)(i), which
required showing that one of the central reasons the Maoists targeted her was
because of her political beliefs.
KC appealed to the BIA, which upheld the IJ’s decision. The BIA
concluded that “[t]he Immigration Judge reasonably determined based on the
record as a whole that the Maoists’ demands for money were acts of extortion not
related to the respondent’s political opinion.” The BIA did not address KC’s
testimony that the Maoists fined her for failing to leave the NCP. The BIA also
upheld the IJ’s determination that the record was not sufficiently clear as to the
reason for KC’s husband’s disappearance, and therefore, this incident could not
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support her asylum claim. In addition, the BIA denied KC’s motion to remand
her case to the IJ so that he could consider additional evidence concerning her
husband’s disappearance.
KC did not petition this court for review of the BIA’s decision. 1 Instead,
she filed a motion with the BIA to reconsider or reopen its decision, arguing,
among other things, that the fine imposed on her was “related to her opposition to
the Maoists.” The BIA denied the motion, again concluding that KC had failed to
show that the Maoists’ demands for money or her husband’s disappearance were
“related to [her] political opinion[s].” The BIA further found that although KC
had shown changed country conditions in Nepal, she had failed to show that the
alleged changes were material to her claims for asylum or withholding of
removal.
II
We review the BIA’s order denying reconsideration or reopening for abuse
of discretion. Wei v. Mukasey, 545 F.3d 1248, 1254 (10th Cir. 2008) (motion to
reopen); Belay-Gebru v. INS, 327 F.3d 998, 1000 n.5 (10th Cir. 2003) (motion for
reconsideration). “The BIA abuses its discretion when its decision provides no
rational explanation, inexplicably departs from established policies, is devoid of
1
As a result, this court lacks jurisdiction to review the BIA’s order of May 25,
2010, dismissing her appeal from the IJ’s decision denying asylum. See Stone v.
INS, 514 U.S. 386, 405-06 (1995).
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any reasoning, or contains only summary or conclusory statements." Kechkar v.
Gonzales, 500 F.3d 1080, 1084 (10th Cir. 2007) (quotation marks omitted).
III
A
Although the abuse-of-discretion standard is rigorous, our review
convinces us that the BIA abused its discretion when it affirmed that the Maoists’
demands for money from KC did not constitute past persecution based on her
political opinion. To meet this standard, KC merely had to show that her
“political opinion . . . was ‘one central reason’ for her persecution, not that it was
the sole reason for it.” Castro v. Holder, 597 F.3d 93, 103 (2d Cir. 2010).
According to KC’s testimony, the Maoists told her that the 300,000 rupee
fine was assessed against her because of her political activities. The IJ
summarized the key aspect of KC's testimony as follows:
She testified that the Maoists . . . approached her and assessed a
“fine” of 300,000 rupees. . . . She testified that she was assessed the
fine for failure to leave [the] Nepali Congress Party, she did not pay
the amount.
The IJ credited this testimony. Nevertheless, the IJ—inexplicably—concluded
that the Maoists did not act based on KC’s political activity, but extorted her
exclusively for financial gain. This analysis suffers from a serious disconnection
between the facts the IJ accepted and the legal conclusion he reached.
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Because the BIA adopted the IJ’s analysis without further explication, both
to dismiss KC’s appeal and to deny reconsideration, the BIA’s decision likewise
lacks “rational explanation.” Kechkar, 500 F.3d at 1084. Accordingly, we hold
that the BIA abused its discretion and remand for further consideration.
B
KC raises a number of other issues in her petition for review which do not
satisfy the exacting abuse-of-discretion standard. We therefore deny her petition
as to these issues.
KC contends, first, that the BIA should have reopened or reconsidered her
case because she demonstrated her husband’s kidnaping was causally linked to
her political persecution by the Maoists. At her asylum hearing, however, KC
offered only her own speculation that this was the reason for her husband’s
disappearance. KC then argued in her motion for reconsideration that
circumstantial evidence supported this claim, but the BIA found that this was not
a sufficient basis on which to reconsider its prior decision. We discern no abuse
of discretion in the BIA’s decision on this issue.
As part of her appeal to the BIA, KC also requested that the record be
remanded so that the IJ could consider a summary of a 2008 police investigation
report, which stated that her husband had been seen at a Maoist prison camp in
November 2004. The BIA found that the document was not contemporaneous,
was not authenticated, and that KC failed to provide an adequate explanation of
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why she had been unable to obtain the summary prior to the IJ hearing. KC
explained the delay in her motion for reconsideration, but the BIA concluded this
reasoning did not provide an adequate reason to reopen its previous decision.
Particularly in light of the other reasons the BIA gave for rejecting a remand (lack
of authentication and lack of a contemporaneous record), KC has not
demonstrated an abuse of discretion on this issue.
In her motion for reopening or reconsideration, KC also submitted
materials on human rights practices in Nepal, alleging that they showed that
conditions in Nepal had deteriorated since 2007 and that she would therefore face
persecution if she were returned there. The BIA found that she had shown
changed country conditions, but that she had failed to show that the alleged
changes (which involved the resignation of Nepal’s prime minister) were material
to her claims for asylum or withholding of removal. This determination does not
represent an abuse of discretion.
Finally, KC argues that the record compels the conclusion that she is
entitled to relief under the CAT. In order to receive CAT protection, “an
applicant must demonstrate it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.” Ritonga v. Holder, 633
F.3d 971, 978 (10th Cir. 2011) (quotation omitted). The torture must be “by or at
the instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). As part of its
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order denying her motion to reopen, the BIA found that KC had failed to “make a
prima facie showing that the Nepalese Government would be willfully blind to
any torturous acts committed against her by third parties.” This determination
was not an abuse of the BIA’s discretion.
IV
The petition for review is GRANTED in part, DENIED in part, and the
case is REMANDED for further proceedings consistent with this order and
judgment.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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