The opinion
13-2321
Kunwar v. Holder
BIA
Zagzoug, IJ
A089 908 356
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 29th day of August, two thousand fourteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
REENA RAGGI,
RICHARD C. WESLEY,
Circuit Judges.
_______________________________________
BIR BAHADUR KUNWAR,
Petitioner,
v. 13-2321
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Marie Licelle R. Cobrador, Esq., The
Bhatta Law Firm, P.C., Jackson
Heights, NY.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Blair O’Connor, Assistant
Director; Rachel L. Browning, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is GRANTED.
Bir Bahadur Kunwar, a native and citizen of Nepal,
seeks review of a May 10, 2013 decision of the BIA affirming
the December 6, 2011 decision of an Immigration Judge
(“IJ”), which denied his application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). In re Bir Bahadur Kunwar, No. A089 908 356 (B.I.A.
May 10, 2013), aff’g No. A089 908 356 (Immig. Ct. N.Y. City
Dec. 6, 2011). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
We have reviewed the IJ’s decision as modified by the
BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
520, 522 (2d Cir. 2005). The applicable standards of review
are well established. See 8 U.S.C. § 1252(b)(4); Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
The BIA did not affirm the IJ’s holding that Kunwar
failed to show that he suffered harm rising to the level of
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persecution but, rather, concluded that Kunwar had not
established a nexus between the harm he suffered and a
protected ground. Accordingly, this is the only issue
before us as to the denial of asylum and withholding of
removal.
To establish eligibility for asylum or withholding of
removal, an applicant must show persecution, or fear of
persecution, on account of race, religion, nationality,
membership in a particular social group, or political
opinion. See 8 U.S.C. §§ 1101(a)(42); 1231(b)(3). To
establish persecution “on account of” political opinion, an
asylum applicant must demonstrate that the persecutor’s
motive arises from the applicant’s political belief, “actual
or imputed.” Castro v. Holder, 597 F.3d 93, 100 (2d Cir.
2010). An applicant “need not demonstrate that a protected
ground was the exclusive reason for persecution,” and may
prevail on a “mixed motive” claim if he demonstrates that
his political opinion is “one central reason” for the
persecution. Id. at 103-04.
Here, the BIA stated that the “Maoists attempted to
recruit [Kunwar] without any apparent knowledge of his
political opinion.” However, the BIA did not address record
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evidence that, after Kunwar told his recruiters that he
disagreed with their politics, they threatened him and tried
to kill him. Specifically, the BIA did not explain why
Kunwar’s evidence that he was targeted after the Maoists
learned his political opinion was insufficient to show a
nexus to the harm suffered.
Because the challenged denial cannot be sustained
absent further explanation, we remand the petition to the
agency for further consideration and explication of whether
the referenced evidence established a nexus between a
protected ground and the harm Kunwar faced. We express no
opinion as to whether Kunwar met his burden of showing
either past persecution or a well-founded fear of future
persecution.
Further, because the BIA did not adopt the IJ’s past
persecution finding, the severity of the past harm and, by
extension, the severity of any possible future harm,
questions central to the CAT analysis, remain open. On
remand, the agency should also more thoroughly address
Kunwar’s CAT claim.
For the foregoing reasons, the petition for review is
GRANTED. Any pending request for oral argument in this
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petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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