Roka v. Holder , 492 F. App'x 167 ( 2012 )

11-3565
Roka v. Holder
BIA
Morace, IJ
A089 266 928
A089 266 929
A089 266 930
A089 266 931
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 13th day of August, two thousand twelve.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
JYOTI PANT ROKA, AMAR ROKA,
POOJA POKA, AAYUSH ROKA,
Petitioners,
11-3565
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONERS: Andrew K. Chow, Neil A. Weinrib &
Associates, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Jennifer P. Levings, Senior
Litigation Counsel; Tim Ramnitz,
Attorney, Office of Immigration
Litigation, Civil Division, United
States Department of Justice,
Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is GRANTED, the BIA’s decision is VACATED, and the petition
5 is REMANDED for further proceedings.
6 Petitioner Jyoti Pant Roka, a native and citizen of
7 Nepal, seeks review of an August 11, 2011, decision of the
8 BIA, reversing the July 17, 2009, decision of Immigration
9 Judge (“IJ”) Philip L. Morace, and denying her application
10 for asylum, withholding of removal, and protection under the
11 Convention Against Torture (“CAT”).1 In re Jyoti Pant Roka,
12 Nos. A089 266 928/A089 266 929/A089 266 930/A089 266 931
13 (B.I.A. Aug. 11, 2011), rev’ing, Nos. A089 266 928/A089 266
14 929/A089 266 930/A089 266 931 (Immig. Ct. N.Y. City July 17,
15 2009). We assume the parties’ familiarity with the
16 underlying facts and procedural history of the case.
17 Because the BIA vacated the decision of the IJ granting
18 Roka’s application for asylum, we review only the BIA’s
1
Roka’s husband, Amar Roka, and their two children,
Pooja Roka and Aayush Roka, appear as derivative
beneficiaries of Roka’s application.
2
1 decision. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
2 Cir. 2005). Because the BIA did not address the IJ’s
3 credibility finding, however, we assume, but do not
4 determine, Roka’s credibility for the purpose of analyzing
5 her petition. See id. The applicable standards of review
6 are well established. See 8 U.S.C. § 1252(b)(4)(B); see
7 also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.
8 2008).
9 Although we accord substantial deference to the
10 agency’s factual findings, our review of its decision
11 requires that the agency adequately identify and consider
12 relevant evidence in the first instance. See Yi Long Yan v.
13 Gonzales, 478 F.3d 133, 142 (2d Cir. 2007) (“[O]ur duty [is]
14 to assess the BIA’s ruling to determine whether there was a
15 failure to consider an important fact in the record.”); Wei
16 Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) (“[T]he
17 BIA should provide us with more than cursory, summary or
18 conclusory statements, so that we are able to discern its
19 reasons for declining to afford relief to a petitioner.”
20 (internal quotation marks omitted)); see also Delgado v.
21 Mukasey, 508 F.3d 702, 709 (2d Cir. 2007) (“[F]ailure to
22 consider material evidence in the record is ground for
23 remand.”).
3
1 Here, the BIA denied Roka’s asylum and withholding of
2 removal claims principally because it found that she had not
3 demonstrated a nexus between her alleged political opinion
4 and the harm she suffered, and feared that she would suffer,
5 by the Maoists.2 To support this conclusion, it observed
6 that she was not a prominent member of a political party
7 that opposed the Maoists; that she was “apparently targeted
8 because she and her husband owned a business”; and that the
9 harm inflicted by the Maoists was motivated by their desire
10 to extort money from Roka. Although the record is not
11 necessarily inconsistent with these findings, review of the
12 BIA’s decision confirms that it failed to address
13 sufficiently all of the material facts and ignored certain
14 applicable legal standards.
15 For example, that Roka was not a member of a political
16 party opposed to the Maoists is irrelevant to her asylum and
17 withholding claims, which were based on her alleged imputed
18 political opinion. See Chun Gao v. Gonzales, 424 F.3d 122,
2
Although the BIA also held that Roka had failed to
demonstrate eligibility for asylum and withholding of
removal on account of her membership in a particular
social group, Roka does not pursue this issue in her
petition before this Court, which we therefore deem
abandoned. See Yueqing Zhang v. Gonzales, 426 F.3d 540,
545 n.7 (2d Cir. 2005).
4
1 129 (2d Cir. 2005) (“[T]he question in this case is not
2 whether Gao was or is a practitioner of Falun Gong, but
3 whether the authorities would have perceived him as such or
4 as a supporter of the movement because of his activities.
5 If authorities would persecute him as an adherent or as a
6 supported of Falun Gong, then such persecution would be ‘on
7 account of’ an enumerated ground.” (emphasis in original)).
8 Moreover, while the Maoists may have been motivated, in
9 part, by Roka’s status as a wealthy business owner, the
10 record suggests that this was not their sole motivation.
11 See Castro v. Holder, 597 F.3d 93, 103 (2d Cir. 2010)
12 (“[E]ven if recruitment were one reason for Rodas’s
13 persecution, that would not be conclusive, for Rodas need
14 show only that his political opinion, actual or imputed, was
15 ‘one central reason’ for his persecution, not that it was
16 the sole reason for it.” (emphasis in original)). To the
17 contrary, credible evidence supports the inference that the
18 Maoists could have been motivated also by the fact that Roka
19 manufactured uniforms for the Nepalese Army, which was
20 opposed to the Maoists, and that Roka refused the Maoists’
21 request to manufacture uniforms for their own forces. The
22 BIA did not explain why this evidence did not demonstrate
23 that the Maoists targeted Roka on account of their belief
5
1 that she was opposed to their political objectives. See id.
2 (“[C]areful attention to the particularized circumstances
3 surrounding the alleged persecution remains necessary even
4 if the persecution is generally categorized as extortion[.]”
5 (internal quotation marks omitted)).
6 Because the BIA did not address adequately critical
7 evidence in the record, we remand Roka’s asylum and
8 withholding claim for further consideration by the agency.
9 And because the BIA’s perfunctory denial of Roka’s CAT claim
10 suffers from this same problem, we remand that claim as
11 well.
12 For the foregoing reasons, the petition for review is
13 GRANTED, the BIA’s decision is VACATED, and the matter is
14 REMANDED for further proceedings consistent with this order.
15 Any pending request for oral argument in this petition is
16 DENIED in accordance with Federal Rule of Appellate
17 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
6