Rayachhetry v. Holder , 371 F. App'x 758 ( 2010 )

FILED
NOT FOR PUBLICATION MAR 17 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TANKA BAHADUR RAYACHHETRY, No. 05-75603
Petitioner, Agency No. A077-852-091
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 10, 2010
San Francisco, California
Before: HUG, REINHARDT and BYBEE, Circuit Judges.
An Immigration Judge (IJ) denied Tanka Bahadur Rayachhetry’s application
for asylum. The BIA affirmed on the ground that Rayachhetry had failed to
establish that the persecution he feared upon return to Nepal was on account of his
political opinion. Because that finding is not supported by substantial evidence,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
we grant Rayachhetry’s petition for review and conclude that he is statutorily
eligible for asylum. We remand so that the BIA may exercise its discretion to
decide whether to grant asylum.
I.
The evidence that Rayachhetry produced at his immigration hearing compels
the conclusion that the Maoist guerrillas who threatened his life were motivated, at
least in part, by his political opinion.1 See Borja v. INS, 175 F.3d 732, 736 (9th
Cir. 1999) (en banc). Although the Maoists were initially interested in him solely
for his money, once they learned of his opposition to Maoism through an article
that he published in a local paper, they “made clear to [him] that his . . . political
opinion contributed to their hatred of him and provided them with additional
motive for their actions.” Gafoor v. INS, 231 F.3d 645, 651 (9th Cir. 2000); see
also Sinha v. Holder, 564 F.3d 1015, 1021 (9th Cir. 2009). Indeed, they sent him a
letter telling him to stop publishing articles “against . . . the party,” informing him
that his name was on the “red list,” that he faced “action any time anywhere,” and
1
The “at least in part” rule has been superseded by the REAL ID Act, Pub. L.
No. 109-13, div. B, § 101(h)(2), 119 Stat. 231, 305 (2005). See Parussimova v.
Mukasey, 533 F.3d 1128, 1133-34 (9th Cir. 2008). However, because Rayachhetry
filed his asylum application before May 11, 2005, the pre-REAL ID standard
governs. See Sinha v. Holder, 564 F.3d 1015, 1021 n.3 (9th Cir. 2009).
Page 2 of 4
that he should give them money “soon” to save his life. While they had demanded
money from his family before, it was not until after he published the article that
they threatened his life. See Gonzales-Neyra v. INS, 122 F.3d 1293, 1296 (9th Cir.
1997) (holding that evidence that the petitioner “had a political opinion, that he
expressed it to his persecutors, and that they threatened him only after he expressed
his opinion” compelled the conclusion that the threats were connected to his
political opinion and not only to his failure to provide money in response to
demands from the persecutors that pre-dated his expression of his political
opinion). Moreover, the background evidence confirms that the Maoist group that
threatened him is known for abducting and killing people on the basis of their
public expressions of political opposition. See Sinha, 564 F.3d at 1021; Gafoor,
231 F.3d at 647-49.
II.
The IJ based his denial of asylum in part on an adverse credibility finding.
On appeal, the BIA affirmed a portion of the IJ’s findings, but remained silent as to
the credibility issue. “When the BIA’s decision is silent on the issue of credibility,
despite an IJ’s explicit adverse credibility finding, we may presume that the BIA
found the petitioner to be credible, and we so presume here.” Krotova v. Gonzales,
Page 3 of 4
416 F.3d 1080, 1084 (9th Cir. 2005) (internal citations removed). We therefore
reject the government’s argument that the remand should include a determination
by the BIA as to the issue of credibility. We reiterate the recommendation that we
have made to the BIA before on several occasions, that it address issues at the first
opportunity so that neither it nor we may be required to consider the same case
numerous times. See Briones v. INS, 175 F.3d 727, 730 n.1 (9th Cir. 1999). In this
case, we conclude that the credibility issue has not been preserved.
GRANTED and REMANDED for EXERCISE of DISCRETION.
Page 4 of 4