and Submitted March 7, 2016 Pasadena, California
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A201-044-890
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.
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
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.
FLETCHER, Circuit Judge:
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
Bhattarai's Asylum Application and Testimony
following narrative was set forth in Bhattarai's asylum
application and testimony before the IJ.
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.
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
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.
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.
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
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.
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 ...