PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
Raj Bhatta for petitioner.
Victoria M. Braga, Trial Attorney, Office of Immigration
Litigation, U.S. Department of Justice, Joseph H. Hunt,
Assistant Attorney General, Civil Division, and Cindy S.
Ferrier, Assistant Director, for respondent.
Kayatta, Circuit Judge, Souter, [*] Associate Justice, and Selya,
SOUTER, ASSOCIATE JUSTICE.
face of threatened deportation to Nepal, his country of
citizenship, petitioner Madhav Prasad Dahal applied to the
Government for asylum, withholding of removal, and protection
under the United Nations Convention Against Torture.
See 8 U.S.C. §§ 1158, 1231(b)(3); 8 C.F.R.
§ 1208.16(c). He contested deportation owing to his fear
of persecution for his political beliefs if he repatriated.
An Immigration Judge denied his application, and the Board of
Immigration Appeals (BIA) affirmed. We respond to Dahal's
petition for review of the BIA's decision by granting the
petition in part, denying it in part, and remanding.
1992, Dahal officially became a member of the Nepali Congress
Party, which was a rival of the Communist Maoists. In 1996,
the Maoists began an armed insurgency to overthrow the
to Dahal, whom the Immigration Judge found to be a credible
witness, the Maoists persecuted him both during and after
this conflict, based on his affiliation with the Congress
Party. He testified that, beginning in 1997, Maoists sent him
threatening letters and made similar phone calls, invaded his
home, attacked him at a Congress Party meeting, and held him
hostage until he agreed to pay them a portion of the profits
from his business. Dahal claims that the persecution
persisted even after he reported the incidents to the police
and changed his residence several times, and failed to cease
in the aftermath of the insurgency's formal end with the
signing of a peace agreement in 2006.
2010, Dahal traveled to the United States on a business trip.
His visa authorized him to remain in the United States until
January 2011, but he did not leave when the visa expired.
Instead, he says he decided to stay because his relatives in
Nepal informed him that an armed group of Maoists had come to
his home there and threatened to kill him upon his return. He
also testified that at one point during his absence the
Maoists managed to cut off the water supply to his
2011, Dahal filed an application for asylum with the United
States Citizenship and Immigration Services (USCIS), a
component of the Department of Homeland Security (DHS). USCIS
declined to grant Dahal asylum and referred his application
to an Immigration Judge. DHS then ordered Dahal to appear
before the Immigration Judge to show why he should not be
removed from the United States for overstaying his visa.
2017, the Immigration Judge ordered Dahal's removal to
Nepal. See In re Dahal, No. A200-173-934, at 15
(Exec. Office for Immigration Review July 25, 2017) ("IJ
Decision"). In denying his application for asylum, the
judge credited Dahal's testimony that he faced political
persecution when he was living in Nepal, and found that as a
result Dahal had become entitled to a presumption that he had
the "well-founded fear of persecution" that is
necessary to obtain asylum. 8 U.S.C. § 1101(a)(42).
Nonetheless, the judge concluded that Dahal was not eligible
for asylum because the Government had rebutted the
presumption by showing that there had been a
"fundamental change in circumstances" in Nepal
since Dahal last lived there in 2010. 8 C.F.R. §
1208.13(b)(1)(i)(A). The judge relied heavily on
"Country Reports" produced by the Department of
State, which indicated that Nepal's government had
reached a truce with the Maoists in 2006 and had held free
and fair elections in 2013.
same decision, the Immigration Judge also denied two other
variants of requested relief from removal. The judge
concluded that Dahal was not entitled to withholding of
removal because he could not satisfy the more lenient
eligibility requirements for asylum and had failed to show
that it was more likely than not that he would face
persecution in Nepal. See id. § 1208.16(b). And
the judge found that Dahal was not entitled to protection
under the United Nations Convention Against Torture because
he had not "establish[ed] that it is more likely than
not that he . . . would be tortured" if deported to
Nepal. Id. § 1208.16(c)(2).
appealed to the BIA, which adopted and affirmed the
Immigration Judge's decision. In rejecting Dahal's
asylum request, along with his claim that the Government had
not rebutted the presumption of eligibility, the BIA followed
the judge's reliance on the State Department's
Country Reports on Nepal as showing a fundamental change in
country conditions. And it pointed out that Dahal had not
been persecuted during the year before he left Nepal; that
Dahal has been absent from Nepal for many years,
"diminish[ing] the likelihood that he would be
persecuted"; and that Dahal's family has "lived
in Nepal apparently without persecution" since 2010.
In re Dahal, No. A200-173-934, at 2 (BIA July 26,
2018) ("BIA Decision"). The BIA also agreed with
the Immigration Judge that Dahal's failure to establish
his eligibility for asylum required the ...