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Bhattarai v. Lynch

United States Court of Appeals, Ninth Circuit

August 30, 2016

Nishchal Bhattarai, Petitioner,
Loretta E. Lynch, Attorney General, Respondent.

          Argued and Submitted March 7, 2016 Pasadena, California

         On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A201-044-890

          Garish Sarin (argued), Law Offices of Garish Sarin, Los Angeles, California, for Petitioner.

          Richard Zanfardino (argued), Trial Attorney; Terri J. Scadron, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

          Before: William A. Fletcher, Mary H. Murguia, and John B. Owens, Circuit Judges.

         SUMMARY [*]


         The panel granted a petition for review of the Board of Immigration Appeals' denial of asylum, withholding of removal, and Convention Against Torture relief on adverse credibility grounds.

         The panel held that the alleged inconsistencies the immigration judge identified were unsupported by the record or more properly deemed gaps in corroborative evidence, and that the immigration judge erred by failing to give petitioner notice and an opportunity to explain any perceived inconsistencies or provide additional corroborative evidence.


          W. FLETCHER, Circuit Judge:

         Nishchal Bhattarai petitions for review of the Board of Immigration Appeals' ("BIA") denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). The BIA upheld the immigration judge's ("IJ") adverse credibility finding based on alleged inconsistencies between Bhattarai's testimony and certain supporting documents, and because Bhattarai failed to provide additional corroborative evidence, including testimony by his brother. The alleged inconsistencies are either unsupported by the record or are more properly considered gaps in corroboration, and the IJ failed to give Bhattarai notice and an opportunity to provide the corroborative evidence she deemed necessary. See Ren v. Holder, 648 F.3d 1079, 1090-92 (9th Cir. 2011). We therefore grant the petition and remand for further proceedings.

         I. Background

         A. Bhattarai's Asylum Application and Testimony

         The following narrative was set forth in Bhattarai's asylum application and testimony before the IJ.

         Petitioner Nishchal Bhattarai is a 33-year-old native of Nepal, born to a politically active family who "influenced [him] with the democratic ideology since [his] school life." In 1999, Bhattarai joined the Nepal Student Union ("NSU"), and later its parent political party, the Nepali Congress Party ("NCP"). Bhattarai worked on student elections for the NSU and from 2001 to 2002 served as an NCP district chief in his home Sunsari district.

         During the time he was involved with the NSU and NCP, Bhattarai was attacked three times by individuals identified with the Maoist Party, which opposed the NCP. The first attack occurred on June 6, 2002. Just after Bhattarai had returned home from the NCP offices, a group of five Maoists arrived at his home. The Maoists accused Bhattarai of "[g]oing against" the Maoist Party, and demanded money. When Bhattarai told the Maoists that he would not help them, they beat him with sticks, a cane, and bicycle chains on his back and buttocks. They told Bhattarai before leaving that if he continued his involvement with the NCP they would return to hurt him again. Two days after the attack, Bhattarai fled to Kathmandu-several hundred kilometers from the Sunsari district-where he moved in with friends. The Maoists continued to communicate threats to Bhattarai through friends and family.

         The second attack occurred almost six years later, on March 29, 2008. By this time, Bhattarai had completed a bachelor's degree and had begun studies for a master's degree in Kathmandu. He was still active with the NSU and gave speeches advocating the end of monarchy in Nepal. In 2008, in anticipation of national elections in April of that year, Bhattarai returned to Sunsari, his home district, to campaign for the NCP. During a campaign program on March 29, members of the Young Communist League ("YCL")-a branch of the Maoist Party-began throwing rocks. A group of Maoists then captured a number of NCP workers, including Bhattarai, and beat Bhattarai with a cane. They forbade him from voting for the NCP, and threatened to "cut [him] into pieces" if he returned to the area to promote the NCP. The next day, Bhattarai returned to Kathmandu, where his brother was then living and studying. Bhattarai continued his political activities on behalf of the NCP.

         Bhattarai's third and most serious confrontation with Maoists occurred two years later, in March 2010. Bhattarai had begun working as a program officer for the organization UNESCO and Youth Nepal ("UNESCO-YN") in 2008. He worked primarily as a youth leader, raising awareness about HIV, drug addiction, human rights, and community development. On March 8, 2010, Bhattarai was participating in a four-day youth program he had organized in a rural district, when he received a phone call from Maoists demanding that he leave the area. Bhattarai informed the president of UNESCO-YN and other local leaders about the threat. The next day, March 9, Bhattarai had just completed a lecture when three individuals who identified themselves as Maoists entered the room and confronted him. One drew a pistol and told Bhattarai to be silent while another rummaged through his bag and seized paperwork and 10, 000 rupees (approximately $130). The Maoists then forced Bhattarai to walk for half an hour to a small isolated hut, and tied Bhattarai's hands behind his back with a rope.

         Four additional Maoists were waiting at the hut. One introduced himself as "Taurav." He said that Bhattarai had been warned not to organize "this kind of program[], " particularly in Maoist occupied areas. Taurav then punched Bhattarai in the face, and the other Maoists began beating him with sticks. They told Bhattarai that he was "going against their party, " accused him of being a spy for another party, and demanded that Bhattarai leave the NCP, quit his job with UNESCO-YN, and publicly join the Maoist Party. When Bhattarai refused, his captors hit and kicked him in the head and body until his vision became blurry. Bhattarai felt "excruciating pain" in his head and right arm. He heard the Maoists say that they were "going to have to end him, " and then he blacked out.

         Bhattarai awoke in a police station. He learned later that villagers had found him lying on the floor of the hut and had contacted the police. The police gave Bhattarai first aid. The next day, March 10, Bhattarai returned to Kathmandu to receive medical treatment. He had pain "almost all around [his] body" and his right elbow was sprained. The doctor treated him for one week, prescribed medicine, and asked him to rest for three weeks. He recovered while living at a house he rented in Bhaktapur, near Kathmandu.

         Several months later, Bhattarai was invited to participate in a UNESCO Youth Assembly at UN Headquarters in New York City. He was issued a non-immigrant visa and entered the United States on August 2, 2010. While he was in the United States, his parents received threats from the Maoists and told him not to return to Nepal. Bhattarai heeded their warnings. He remained in the country and ...

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