Mahat v. Garland ( 2021 )


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  •      18-3529
    Mahat v. Garland
    BIA
    Nelson, IJ
    A208 160 295
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
    TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
    AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
    COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
    FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
    OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
    PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
    NOT REPRESENTED BY COUNSEL.
    1        At a stated term of the United States Court of Appeals
    2   for the Second Circuit, held at the Thurgood Marshall United
    3   States Courthouse, 40 Foley Square, in the City of New York,
    4   on the 14th day of December, two thousand twenty-one.
    5
    6   PRESENT:
    7            ROSEMARY S. POOLER,
    8            SUSAN L. CARNEY,
    9            JOSEPH F. BIANCO,
    10                 Circuit Judges.
    11   _____________________________________
    12
    13   BASANTA MAHAT,
    14            Petitioner,
    15
    16                      v.                                  18-3529
    17                                                          NAC
    18   MERRICK B. GARLAND, UNITED
    19   STATES ATTORNEY GENERAL,
    20            Respondent. 1
    21   _____________________________________
    22
    23   FOR PETITIONER:                    Stuart Altman, Esq., New York, NY.
    24
    25   FOR RESPONDENT:                    Erica B. Miles, Senior Litigation
    26                                      Counsel; Craig A. Newell, Jr.,
    1The Clerk of Court is respectfully directed to amend the caption as
    set forth above.
    1                               Trial    Attorney,    Office    of
    2                               Immigration   Litigation,   United
    3                               States   Department  of   Justice,
    4                               Washington, DC.
    5       UPON DUE CONSIDERATION of this petition for review of a
    6   Board of Immigration Appeals (“BIA”) decision, it is hereby
    7   ORDERED, ADJUDGED, AND DECREED that the petition for review
    8   is GRANTED.
    9       Petitioner Basanta Mahat, a native and citizen of Nepal,
    10   seeks review of a November 5, 2018 decision of the BIA
    11   affirming an October 31, 2017 decision of an Immigration Judge
    12   (“IJ”) denying Mahat’s application for asylum, withholding of
    13   removal, and relief under the Convention Against Torture
    14   (“CAT”).    In re Basanta Mahat, No. A 208 160 295 (B.I.A. Nov.
    15   5, 2018), aff’g No. A 208 160 295   (Immig. Ct. N.Y. City Oct.
    16   31, 2017).     We assume the parties’ familiarity with the
    17   underlying facts and procedural history to which we refer
    18   only as necessary to explain our decision        to grant the
    19   petition.
    20       We have reviewed the IJ’s decision as supplemented and
    21   modified by the BIA.   See Yan Chen v. Gonzales, 
    417 F.3d 268
    ,
    22   271 (2d Cir. 2005); Xue Hong Yang v. U.S. Dep’t of Justice,
    23   
    426 F.3d 520
    , 522 (2d Cir. 2005).     Accordingly, as did the
    2
    1   BIA, we assume Mahat’s credibility and address only the
    2   agency’s conclusion that Mahat could reasonably relocate
    3   within   Nepal       to    avoid   future        persecution.     See    8   C.F.R.
    4   § 1208.13(b)(1)(i)(B)(an asylum application may be denied
    5   where applicant may reasonably relocate to another part of
    6   home country); Yan Chen, 
    417 F.3d at
    271–72.
    7       On review, we remand for clarification or reconsideration
    8   of this relocation finding.                     We first conclude that Mahat
    9   sufficiently exhausted his challenge to this finding.                            See
    10   Ruiz-Martinez v. Mukasey, 
    516 F.3d 102
    , 112 n.7 (2d Cir. 2008)
    11   (deeming as exhausted the issues addressed in BIA decisions);
    12   Steevenez v. Gonzales, 
    476 F.3d 114
    , 117 (2d Cir. 2007)
    13   (allowing      for    review       of   a       “specific,     subsidiary     legal
    14   argument or an extension of an argument . . . raised directly
    15   before   the    BIA.”      (internal        quotation     marks    and    brackets
    16   omitted)).
    17       The IJ’s analysis was predicated on the determination
    18   that Mahat had not suffered past persecution.                     Under 8 C.F.R.
    19   § 1208.13(b)(3), if an “applicant has not established past
    20   persecution,         the    applicant           shall   bear    the     burden    of
    21   establishing that it would not be reasonable for him or her
    3
    1   to relocate.”     The IJ found that, in light of Mahat’s lack
    2   of credibility and failure to corroborate his account, Mahat
    3   had not demonstrated past persecution and thus he bore the
    4   burden of showing that it was unreasonable for him to relocate
    5   within Nepal.
    6       The IJ then listed, but did not analyze, the factors for
    7   determining reasonableness of relocation as set forth in 8
    
    8 C.F.R. § 1208.13
    (b)(3), which include: “whether the applicant
    9   would face other serious harm in the place of suggested
    10   relocation; any ongoing civil strife within the country;
    11   administrative,     economic,    or        judicial   infrastructure;
    12   geographical      limitations;       and     social    and     cultural
    13   constraints, such as age, gender, health, and social and
    14   familial ties.”    While concluding that the country conditions
    15   evidence showed that Mahat could safely relocate, the IJ did
    16   not discuss specific evidence or make specific findings on
    17   this issue. Nor did the IJ’s decision make any mention of
    18   record evidence of political violence throughout Nepal.              See
    19   Passi   v.   Mukasey,   
    535 F.3d 98
    ,    102–03   (2d    Cir.   2008)
    20   (requiring agency to consider country conditions evidence
    4
    1   before finding presumption of persecution rebutted by ability
    2   to relocate).
    3          On appeal, the BIA assumed Mahat’s credibility . Having
    4   done so, it was bound to assume that Mahat was entitled to a
    5   presumption of future persecution, in light of his detailed
    6   testimony about past persecution that the BIA assumed was
    7   credible.     See 
    8 C.F.R. § 1208.13
    (b)(1) (“An applicant who
    8   has been found to have established such past persecution shall
    9   also     be   presumed    to     have       a   well-founded       fear   of
    10   persecution[.]”).
    11          Yet,   despite    these       assumptions,   the     BIA    did    not
    12   adequately explain whether it had shifted the burden as
    13   required to the Government to rebut the presumption of future
    14   persecution and show by “a preponderance of the evidence”
    15   that Mahat could safely and reasonably relocate.                      See 8
    
    16 C.F.R. § 1208.13
    (b)(1)(ii).             As to the evidence regarding
    17   safe    relocation,     the    BIA    did   not   address    any    country
    18   conditions evidence or make findings regarding conditions in
    19   Kathmandu, to where it concluded Mahat could relocate.                    See
    20   Poradisova v. Gonzales, 
    420 F.3d 70
    , 77 (2d Cir. 2005) (“[W]e
    21   require a certain minimum level of analysis from the IJ and
    5
    1   BIA opinions denying asylum, and indeed must require such if
    2   judicial review is to be meaningful.”).   Applying Poradisova,
    3   we conclude that the BIA’s decision is inadequate.
    4       For the foregoing reasons, the petition for review is
    5   GRANTED, the BIA’s decision is VACATED, and the case is
    6   REMANDED for further proceedings.
    7                               FOR THE COURT:
    8                               Catherine O’Hagan Wolfe,
    9                               Clerk of Court
    6