Khagendra Sharma v. Eric Holder, Jr.

REVISED September 9, 2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 12-60547 August 30, 2013
Lyle W. Cayce
KHAGENDRA SHARMA, Clerk
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL.
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
Nepalese citizen Khagendra Sharma petitions for review of the Board of
Immigration Appeals (BIA) denial of his application for asylum and withholding
of removal under 8 U.S.C. § 1252(b) and the Convention Against Torture (CAT),
arguing that he had been subjected to past persecution and feared future
persecution in Nepal based on his political opinion and membership in a
particular social group, the Nepal Student Union (NSU). Because we find that
the Immigration Judge (IJ) and BIA incorrectly required Sharma to produce
direct proof of the nexus between his persecution and his political opinion, the
petition for review is GRANTED, the BIA’s decision is VACATED in part, and
No. 12-60547
the case is REMANDED to the BIA for further proceedings consistent with this
decision.
FACTS AND PROCEDURAL HISTORY
The factual background of this case was established primarily through
Sharma’s own testimony, which the IJ found to be credible.
Khagendra Sharma, a citizen of Nepal, entered the United States without
inspection on or about February 5, 2010, at Hidalgo, Texas. Sharma filed an
affirmative application for asylum and withholding of removal on January 19,
2011, asserting that he had been subjected to past persecution and feared future
persecution in Nepal based on his political opinion and membership in a
particular social group, the NSU, which opposed the Communist Party of Nepal
(the Maoists).
The Department of Homeland Security (DHS) subsequently issued Sharma
a Notice to Appear (NTA), charging him with removability, pursuant to 8 U.S.C.
§ 1182(a)(6)(A)(I), as an alien present in the United States without having been
admitted or paroled. At an initial hearing before an IJ, Sharma admitted the
allegations in the NTA and conceded removability but requested relief in the
form of asylum, withholding of removal, and protection under the CAT.
In a hearing held before an IJ on April 19, 2011, Sharma testified that
when he was 14 years old, in 2004, he and his fellow school volleyball teammates
had been kidnaped by a group of Maoists on the way home from a volleyball
tournament. The Maoists abducted the group and took them to another village,
where the Maoists let their supporters go. The Maoists kept Sharma, his
teacher, and five other students, all seven of whom the Maoists knew were not
their supporters, taking them farther away to a house in the mountains, where
Sharma was imprisoned for five to seven days.
During his captivity, the Maoists pressured Sharma to support their
political party. Sharma refused, instead telling his captors that he supported
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another political group, the Nepali Congress Party, and was a member of the
NSU, which opposed the Maoists. The Maoists then moved Sharma to a remote
village where they held him for over one month, denied him food, and tortured
and urinated on him. Sharma eventually escaped his captors, and instead of
returning to his hometown, went to live in another area of Nepal with his uncle.
Sharma continued to play volleyball and was abducted for a second time by the
Maoists in 2009, this time with a demand that he coach their volleyball team.
When he was released by the Maoists he fled to India, then to Ecuador, then to
Guatemala, then to Mexico, and ultimately to the United States.
The IJ denied Sharma’s applications for asylum, withholding of removal,
and protection under the CAT, determining that Sharma had not met his burden
of demonstrating that he was eligible for relief. With respect to the claim for
asylum, the IJ found that Sharma failed to show that the harm he experienced
at the hands of the Maoists was because of his political opinion, real or imputed.
In connection with the 2004 kidnaping, the IJ found that, while the Maoists
subjected Sharma to forced labor and forced recruitment, the evidence, including
the events at Sharma’s school, showed that the Maoists were attempting to
disrupt the educational process and fill their ranks with young recruits. The IJ
concluded that there was insufficient evidence to show that Sharma’s political
opinion was a central reason for the 2004 abduction.
Sharma appealed to the BIA and the BIA dismissed his appeal. The BIA
upheld the IJ’s finding that Sharma failed to meet his burden of proving that a
central reason for the harm he suffered was his political opinion. The BIA found
that the record was devoid of evidence that the Maoists ever mentioned
Sharma’s politics. The BIA determined instead that the Maoists targeted
Sharma because they wanted to recruit him to support their party and wanted
him to train their volleyball team. The BIA reasoned that while the Maoists’
actions were motivated by their own political opinion, that did not necessarily
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mean that they were motivated to harm or recruit Sharma because of his
political opinion. The BIA concluded that Sharma “did not meet his burden of
proving the nexus standard required for asylum,” which in turn also defeated his
claim for withholding of removal. It similarly upheld the IJ’s denial of
humanitarian asylum and relief under the CAT. Sharma timely petitioned this
court for review of the BIA’s decision denying his application for asylum.1
STANDARD OF REVIEW
“We review the decision of the BIA, and reach the underlying decision of
the immigration judge only if that decision has some impact upon the BIA’s
opinion.” Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002) (citing
Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997)). Questions of law are
reviewed de novo, id., and factual findings are reviewed “under the substantial
evidence test, reversing only when the evidence is so compelling that no
reasonable fact finder could fail to find the petitioner statutorily eligible for
relief.” Arif v. Mukasey, 509 F.3d 677, 679-80 (5th Cir. 2007) (footnote, citation,
and internal quotation marks omitted); see also 8 U.S.C. § 1252(b)(4)(B) (“[T]he
administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.”). The determination that an
alien is not eligible for asylum is a factual finding reviewed under the
substantial evidence standard. Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir.
2006) (internal citation omitted). “The substantial evidence standard requires
only that the Board's conclusion be based upon the evidence presented and that
1
Because Sharma has raised no argument on appeal challenging the denial of his
applications for withholding of removal and protection under the CAT, he has abandoned those
claims. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003). He has likewise abandoned
his claim for humanitarian asylum by failing to raise any challenge to the BIA’s conclusion
that he is not entitled to humanitarian asylum. See id. Sharma’s initial claim that he was
persecuted because of his membership in a particular social group is both abandoned and
unexhausted. See id.; Omari v. Holder, 562 F.3d 314, 319 (5th Cir. 2009) (holding that this
court lacks jurisdiction to consider arguments not first presented to the BIA).
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it be substantially reasonable.” Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th
Cir. 1996) (internal quotations and citations omitted).
DISCUSSION
An alien is eligible for a discretionary grant of asylum if he qualifies as a
refugee. 8 U.S.C. § 1158(b)(1)(A), (B)(I). A refugee is a person who is outside of
his or her country and is unable or unwilling to return “because of persecution
or a well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A); see also 8 C.F.R. § 1208.13(b). The alien has the burden of
proving that he is a refugee and that one of these five protected grounds “was or
will be at least one central reason for persecuting” him. 8 U.S.C. §
1158(b)(1)(B)(I). “[A]lthough a statutorily protected ground need not be the only
reason for harm, it cannot be incidental, tangential, superficial, or subordinate
to another reason for harm.” Shaikh v. Holder, 588 F.3d 861, 864 (5th Cir. 2009)
(internal quotation marks and citation omitted). “In determining whether the
[asylum] applicant has met the applicant’s burden, the trier of fact may weigh
the credible testimony along with other evidence of record.” 8 U.S.C.
§ 1158(b)(1)(B)(ii). An alien’s testimony may be sufficient to sustain his burden
if it is credible, is persuasive, and refers to sufficient specific facts to
demonstrate he is a refugee. Id.In order to show persecution on account of political opinion, an asylum
applicant must show proof of a nexus between his political opinion and the
persecution. See Tamara-Gomez v. Gonzales, 447 F.3d 343, 349 (5th Cir. 2006)
(“The alien carries the burden to establish a nexus between the persecution and
one of the five statutory grounds for asylum.”); Thuri v. Ashcroft, 380 F.3d 788,
792 (5th Cir. 2004) (noting the requirement that the “alien to prove some nexus
between the persecution and the five protected grounds”) (citing
Ontunez-Tursios, 303 F.3d at 349) (internal quotations omitted); see also INS v.
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Elias-Zacarias, 502 U.S. 478, 482-84 (1992) (requiring a showing of compelling
evidence of the motive behind the persecution). To show proof of the required
nexus, the alien “must demonstrate through some evidence, either direct or
circumstantial, that the persecutors know of his (the alien’s) political opinion
and [have] or will likely persecute him because of it.” Ontunez-Tursios, 303 F.3d
at 351. The petitioner is not required to provide direct proof of his persecutor’s
motives, but rather provide “some evidence of it, direct or circumstantial.” Elias-
Zacarias, 502 U.S. at 483.
We remand this case because the IJ’s finding, as affirmed by the BIA, that
Sharma failed to prove the necessary nexus that he was persecuted on account
of his political opinion, is not supported by substantial evidence. The BIA was
correct in holding that coercive recruitment, standing alone, does not establish
persecution on account of a protected factor. See Elias-Zacarias, 502 U.S. at 482(“[T]he mere existence of a generalized ‘political’ motive underlying the
[persecutors’] forced recruitment is inadequate to establish . . . persecution on
account of political opinion.”) (emphasis omitted). In the instant case, however,
the evidence presented through Sharma’s testimony reveals more than just
coercive recruitment by the Maoists. Although Sharma was not initially
abducted by the Maoists based on his political affiliation, Sharma’s testimony,
which the IJ credited, shows that he was subjected to torture and a longer
detention than others in the group because of his political opposition to the
Maoists.2 The Maoists then escalated their abuse when Sharma affirmed both
his opposition to their political party and his membership in the NSU, a group
opposed to the Maoists. While it was reasonable for the BIA in this case to find
that the Maoists were motivated, at least in part, by Sharma’s refusal to
2
Sharma bases his claim of persecution on account of his political opinion on his 2004
abduction only, conceding that his second abduction in 2009 was motivated only by the
Maoists’ desire to recruit him as a volleyball player. See Brief for the Petitioner at 9.
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cooperate with them, it does not appear that the IJ or the BIA considered all of
the evidence in the record relating to whether the Maoists were also motivated
by Sharma’s political opinion.
The BIA also concluded that Sharma did not meet his burden of proof on
the nexus requirement based on its findings that “there is no testimony or
evidence in the record that the Maoists ever mentioned the respondent’s
politics.” An alien seeking asylum, however, is not required to provide “direct
proof of his persecutors’ motives.” Elias-Zacarias, 502 U.S. at 483. All that is
required is that Sharma “provide some evidence of it, direct or circumstantial.”
Id.; see also Ontunez-Tursios, 303 F.3d at 351 (stating that an alien may
demonstrate the persecutors’ motives through “direct or circumstantial
evidence”). Sharma has shown through his credited testimony that the Maoists
escalated their abuse and prolonged his imprisonment when Sharma expressed
his support for the NSU, a group opposed to the Maoists. Accordingly, the BIA
improperly required Sharma to provide direct evidence of the nexus between his
political opinion and the persecution, and did not consider all of the evidence in
the record bearing upon the Maoists’ motives in targeting Sharma. The BIA’s
finding that Sharma failed to meet his burden of proof is not supported by
substantial evidence.
Moreover, the BIA did not make a determination as to whether Sharma
had shown the existence of a well-founded fear of future persecution on account
of his political opinion if he were to be deported. See 8 C.F.R. § 208.13(b) (“The
applicant may qualify as a refugee either because he or she has suffered past
persecution or because he or she has a well-founded fear of future persecution.”);
see also 8 C.F.R. § 208.13(b)(2)(i)(A) (“An applicant has a well-founded fear of
persecution if . . . [t]he applicant has a fear of persecution in his or her country
of nationality . . . on account of race, religion, nationality, membership in a
particular social group, or political opinion . . . .”). To show proof of a
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well-founded fear of future persecution, the alien “must show that a reasonable
person in the same circumstances would fear persecution if deported.”
Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012) (citing Jukic v.
INS, 40 F.3d 747, 749 (5th Cir. 1994) (internal quotations omitted). “The
[alien’s] subjective fear of future persecution must be objectively reasonable.” Id.Furthermore, “[a]n applicant who has been found to have established such past
persecution shall also be presumed to have a well-founded fear of persecution on
the basis of the original claim.” 8 C.F.R. § 208.13(b)(1). The BIA should consider
all of the evidence to determine whether Sharma has met his burden to prove
the existence of a well-founded fear of persecution.
CONCLUSION
Accordingly, the petition for review is GRANTED, the BIA’s decision is
VACATED in part, the motion for stay of deportation pending review is
GRANTED, and the case is REMANDED to the BIA for further proceedings
consistent with this decision.
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