Nishchal Bhattarai v. Loretta E. Lynch , 835 F.3d 1037 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NISHCHAL BHATTARAI, No. 12-74062
Petitioner,
Agency No.
v. A201-044-890
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 7, 2016
Pasadena, California
Filed August 30, 2016
Before: William A. Fletcher, Mary H. Murguia,
and John B. Owens, Circuit Judges.
Opinion by Judge W. Fletcher
2 BHATTARAI V. LYNCH
SUMMARY*
Immigration
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.
COUNSEL
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.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BHATTARAI V. LYNCH 3
OPINION
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
4 BHATTARAI V. LYNCH
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
BHATTARAI V. LYNCH 5
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
6 BHATTARAI V. LYNCH
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 lived with his
brother, who had won the diversity visa lottery and had
moved to the United States in 2009.
B. Procedural History
On February 1, 2011, the day his visa expired, Bhattarai
filed an affirmative application for asylum, withholding of
removal, and protection under the CAT. He included a
number of supporting documents, including a sworn
declaration, medical notes from the doctor who treated his
injuries in 2010, a letter from a Nepali police investigator,
other supporting letters from the NSU, NCP, and UNESCO-
BHATTARAI V. LYNCH 7
YN, among others, and a 2010 U.S. State Department country
conditions report.
The Department of Homeland Security filed a Notice to
Appear, and Bhattarai appeared in Immigration Court for a
merits hearing on July 18, 2011. At the hearing, Bhattarai
testified and was cross-examined. The IJ concluded the
hearing by stating that “the evidentiary record’s closed.”
About two weeks later, on August 3, 2011, the IJ denied
Bhattarai’s application. She found that he had not “presented
credible evidence” of past persecution or fear of persecution.
In particular, the IJ found Bhattarai’s supporting
documentation “at odds with” his testimony and lacking in
specifics. She also stated that Bhattarai’s brother’s absence
from the hearing “severely undercut[] [his] credibility.”
Bhattarai appealed to the BIA. Bhattarai also submitted a
motion to remand for consideration of additional evidence,
including additional letters from the NCP and UNESCO-YN,
as well as a copy of Bhattarai’s brother’s passport. The BIA
denied Bhattarai’s appeal and motion to remand on December
5, 2012. The BIA found no clear error in the IJ’s adverse
credibility finding, and refused to remand for consideration
of the additional evidence, on the ground that it had been
available and could have been presented at the time of
Bhattarai’s hearing before the IJ.
Bhattarai filed a timely petition for review with this court.
II. Standard of Review
Where, as here, the BIA agrees with and incorporates
specific findings of the IJ while adding its own reasoning, we
review both decisions. Vahora v. Holder, 641 F.3d 1038,
8 BHATTARAI V. LYNCH
1042 (9th Cir. 2011). “We review factual findings, including
adverse credibility determinations, for substantial evidence.”
Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014). We will
uphold the finding “unless any reasonable adjudicator would
be compelled to conclude to the contrary.” Id. (quoting
8 U.S.C. § 1252(b)(4)(B)). We review questions of law de
novo. Id.III. Discussion
A. Asylum and Withholding of Removal
An applicant for asylum and withholding of removal
bears the burden of establishing eligibility. 8 U.S.C.
§§ 1158(b)(1)(B)(i), 1229a(c)(4)(A). Under the REAL ID
Act, which applies to applications filed after May 11, 2005,
an applicant may establish eligibility on his credible
testimony alone, without any corroboration. 8 U.S.C.
§ 1158(b)(1)(B)(ii). However, “[w]here the trier of fact
determines that the applicant should provide evidence that
corroborates otherwise credible testimony, such evidence
must be provided unless the applicant does not have the
evidence and cannot reasonably obtain the evidence.” Id.In Ren v. Holder, we held that this provision requires an
IJ to “provide an applicant with notice and an opportunity to
either produce [corroborative] evidence or explain why it is
unavailable before ruling that the applicant has failed in his
obligation to provide corroborative evidence.” 648 F.3d at
1090. Our conclusion was based on a detailed textual analysis
of § 1158(b)(1)(B)(ii) and supported by the constitutional
avoidance canon, because requiring an applicant to provide
corroborative evidence before he knew it was necessary
BHATTARAI V. LYNCH 9
would “raise . . . due process concerns.” Id. at 1093. We laid
out a “sequential analysis” that an IJ must undertake:
To begin, the IJ must determine whether an
applicant’s credible testimony alone meets the
applicant’s burden of proof. If it does, no
corroborative evidence is necessary. If a
credible applicant has not yet met his burden
of proof, then the IJ may require corroborative
evidence. If corroboration is needed, however,
the IJ must give the applicant notice of the
corroboration that is required and an
opportunity either to produce the requisite
corroborative evidence or to explain why that
evidence is not reasonably available.
Id.
Ren makes clear that an IJ cannot articulate for the first
time in her decision denying relief that key corroborative
evidence is missing. Rather, when an IJ determines that
additional corroborative evidence should have been
submitted, the IJ must give an applicant notice of what
evidence would suffice and an opportunity to provide the
evidence or explain why he cannot reasonably obtain it. If the
IJ or BIA failed to provide the required notice and
opportunity, we must grant the petition and remand. See Lai
v. Holder, 773 F.3d 966, 975–76 (9th Cir. 2014) (granting
petition based on Ren); Zhi v. Holder, 751 F.3d 1088,
1094–95 (9th Cir. 2014) (same).
The notice-and-opportunity requirement applies when the
applicant’s testimony is “otherwise credible.” Ren, 648 F.3d
at 1090. The REAL ID Act sets out a non-exhaustive list of
10 BHATTARAI V. LYNCH
factors that may reflect on the credibility of an applicant’s
testimony or statement, including the “demeanor, candor, or
responsiveness” of an applicant; “inherent plausibility” of the
applicant’s account; consistency between the applicant’s
written and oral statements, within such statements, or
between such statements and other evidence; any inaccuracies
or falsehoods in an applicant’s statements; “or any other
relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). Our case law
puts some limits on these factors. For example, we require
that the inconsistencies that form the basis of the IJ’s adverse
credibility determination are not “trivial” and are actually
inconsistent in light of all “relevant record evidence.”
Shrestha v. Holder, 590 F.3d 1034, 1043–44 (9th Cir. 2010).
Sometimes immigration judges or the BIA rely on lack of
corroboration as a reason for finding an applicant’s testimony
not credible, but this does not eviscerate Ren’s notice-and-
opportunity requirement. Rather, when the IJ or BIA “relied
on the lack of corroboration as part of [an] overall credibility
determination[,] and, on review, we reject[] each of the IJ’s
other reasons—besides lack of corroboration—for the adverse
credibility finding,” the denial of relief cannot stand unless
the IJ satisfied Ren’s requirements. Lai, 773 F.3d at 976
(internal quotation marks omitted). To apply Ren in this
situation, we must disentangle the IJ’s corroboration-related
reasons for the adverse credibility determination from other
reasons, such as inconsistencies, implausibility, or demeanor.
In reviewing an adverse credibility determination in
which lack of corroboration is one of several stated grounds
for the IJ or BIA’s decision, we undertake a two-step process.
First, we separate out the non-corroboration grounds for the
adverse credibility determination and evaluate whether the IJ
and BIA’s determination is supported by substantial evidence.
BHATTARAI V. LYNCH 11
If it is, we defer to the IJ and BIA’s adverse credibility
determination. But if we overturn that determination, and
only issues regarding lack of corroboration remain, we next
ask whether the IJ satisfied Ren’s notice requirement. If the
IJ did not provide the applicant notice of the specific
corroborative evidence that was required and an opportunity
to provide it or explain why he cannot reasonably obtain it,
we remand for the IJ to give the applicant that opportunity.
See Lai, 773 F.3d at 974–75; Zhi, 751 F.3d at 1095. We now
apply that method to this case.
1. Credibility
The BIA upheld the IJ’s adverse credibility determination
based on one purported internal inconsistency in Bhattarai’s
testimony, and on three purported conflicts between
Bhattarai’s testimony and other evidence in the record. We
find that some of the purported inconsistencies and conflicts
are not supported by substantial evidence or were not
properly addressed by the IJ at the hearing while others are
more properly categorized as lack of corroboration.
a. Bhattarai’s Home in Kathmandu
The BIA found Bhattarai’s testimony internally
inconsistent because he first testified that “he stayed with
friends when he fled to Kathmandu,” and later testified that
he stayed at a home his parents had in Kathmandu. Even if
we assume, arguendo, that this detail is non-trivial, see
Shrestha, 590 F.3d at 1043 (stating that “trivial”
inconsistencies may not support an adverse credibility
determination), the record reveals no actual inconsistency.
Bhattarai’s first statement was in response to a question about
where he stayed when he fled from Sunsari to Kathmandu
12 BHATTARAI V. LYNCH
after suffering his first Maoist attack in June 2002. He replied
that he “stayed with [his] friends.” Bhattarai’s second
statement was in response to the IJ’s question about where he
stayed “after [his] release from the hospital” following the
attack in March 2010. Bhattarai replied that he returned to a
house “we had rented” in Bhaktapur, a suburb of Kathmandu.
He added that his parents “used to come every [so] often” to
stay there and were there with him when he returned from the
hospital. He never said that the house belonged to his parents.
The fact that Bhattarai stayed with friends during his first
days in Kathmandu in 2002 but by 2010 had a rented home in
a Kathmandu suburb is not only internally consistent but also
eminently believable. It stands to reason that after living,
studying, and working in the capital for eight years Bhattarai
would have established a more stable residence. Indeed,
Bhattarai explained this to the IJ, saying that “in the
beginning, for a couple months” he stayed elsewhere, but
“later on” he “made the house” in Bhaktapur. The BIA’s
determination that these two facts were inconsistent ignores
the clear meaning of Bhattarai’s testimony and has no basis
in the record.
b. Medical “Letter”
The BIA and IJ also found that a medical “letter”
submitted by Bhattarai was “at odds with the respondent’s
testimony and his written application.” The IJ stated that
Bhattarai testified about Maoists hitting him on the head and
beating him until he was unconscious, but that he did not
mention an injury to his elbow. In contrast, the medical
document omitted any mention of a head injury, focused on
treatment of a deep wound to Bhattarai’s right elbow, and
BHATTARAI V. LYNCH 13
stated in the “history” section that Bhattarai “Fell down on
the road before ½ hours.”
To begin with, we agree with Bhattarai that the IJ
mischaracterized this document. The IJ called the document
a “report” or “letter,” when in reality the document contains
only contemporaneous hand-written doctor’s notes. The
difference is important because the notes are not self-
explanatory, as a letter or report would be. Further, the IJ’s
interpretation of the notes is unsupported by the record. For
example, the IJ interpreted the doctor’s notation “no
unconscious” to mean that Bhattarai had never lost
consciousness, but this note appears next to other
contemporaneous conditions, such as Bhattarai’s vital signs,
suggesting that Bhattarai was not unconscious at the time of
the medical exam. Additionally, the IJ ignored that Bhattarai
did in fact specify in his declaration that he felt “excruciating
pain” in his right arm during the attack. And the lack of
notation regarding a head injury is not an inconsistency.
Bhattarai never testified that he had a lingering head injury,
and the doctor—who saw him the day after the attack—was
likely focused on treating the deep gash at his elbow. Because
the IJ did not consider “all plausible and reasonable
explanations” for the alleged inconsistencies, substantial
evidence does not support the conclusion that the medical
notes were inconsistent with Bhattarai’s claimed injuries. See
Zhi, 751 F.3d at 1093.
To the extent the doctor’s notation that Bhattarai “Fell
down on the road” described a different cause of the injuries
than Bhattarai alleged, the IJ never asked Bhattarai about this
discrepancy or gave him the opportunity to explain it. An IJ
“must provide a petitioner with a reasonable opportunity to
offer an explanation of any perceived inconsistencies that
14 BHATTARAI V. LYNCH
form the basis of a denial of asylum.” Don v. Gonzales,
476 F.3d 738, 741 (9th Cir. 2007) (quoting Ordonez v. INS,
345 F.3d 777, 786 (9th Cir. 2003)). Because Bhattarai was
not given this opportunity, the perceived inconsistency is not
a proper basis for an adverse credibility determination. See
Soto-Olarte v. Holder, 555 F.3d 1089, 1091–92 (9th Cir.
2009).
c. Police Report
The BIA and IJ also found that a “police report”
submitted by Bhattarai undermined his credibility because it
was “not contemporaneous with the incident” and “omit[ted]
any abduction or being threatened with the pistol or the gun.”
However, the BIA mischaracterized this document. What it
termed a “police report” is actually a letter from a police
inspector verifying that Bhattarai was the victim of an attack
on March 9, 2010. As the letter was presumably written at
Bhattarai’s request, in order to provide documentation of the
attack for the immigration court, it is to be expected that the
letter would post-date Bhattarai’s decision to apply for
asylum.
Moreover, the document is not inconsistent with
Bhattarai’s testimony or any other record evidence. Rather, it
simply does not provide details of Bhattarai’s assault. Thus,
although the IJ termed this an “inconsistency,” the problem
with the police letter—to the degree that there is a
problem—is that it does not corroborate the details of the
assault. As we explained above, when an adverse credibility
finding is based on the failure to sufficiently corroborate an
applicant’s story, Ren applies. Thus, if the IJ found it
necessary for Bhattarai to present a contemporaneous police
report or a report that detailed his assault as corroboration,
BHATTARAI V. LYNCH 15
she had to provide Bhattarai with notice and an opportunity
to provide the report or explain why it is not reasonably
available. See Ren, 648 F.3d at 1090; cf. Chawla v. Holder,
599 F.3d 998, 1002–03 (9th Cir. 2010) (rejecting IJ’s adverse
credibility determination based on a newspaper article’s
omission of particular details because applicant could not
have been expected to explain the omission before knowing
that the IJ would find the evidence lacking). As we explain in
the following section on corroboration, the IJ did not do so.
d. Supporting Letters
Finally, the IJ and BIA also found flaws with the
supporting letters Bhattarai submitted from UNESCO-YN,
NSU, and NCP. The BIA explained that the letters were dated
after Bhattarai’s arrival in the United States, “make vague
references to each organization’s record of the respondent’s
receiving threats or being tortured, assaulted, or threatened,”
and provide “no dates or details that would support the
respondent’s claim.”
Again, the lack of details in these supporting documents
is not an inconsistency. Rather, the problem is simply that the
documents may not sufficiently corroborate the important
details of Bhattarai’s story. Because Ren’s requirements apply
to this determination, this purported deficiency is properly
addressed in the corroboration analysis below.
In sum, we hold that the inconsistencies identified by the
IJ and BIA were either non-existent or procedurally defective
because Bhattarai was not given the chance to explain them.
We note also that Bhattarai’s in-court testimony was
remarkably detailed, consistent with his written declaration,
and plausible in light of the U.S. State Department report and
16 BHATTARAI V. LYNCH
other country conditions evidence in the record.
“[C]onsidering the totality of the circumstances and all
relevant factors,” we find that the adverse credibility
determination is not supported by substantial evidence.
Owino v. Holder, 771 F.3d 527, 538 (9th Cir. 2014) (citing
8 U.S.C. § 1158(b)(1)(B)(iii)).
2. Corroboration
Because the BIA and IJ’s non-corroboration reasons for
the adverse credibility determination fail, we consider
Bhattarai “otherwise credible” and proceed to determine
whether Bhattarai’s application was properly denied on the
basis that he did not provide certain corroborative evidence.
See Lai, 773 F.3d at 976.
a. Bhattarai’s Brother
The IJ focused on the fact that Bhattarai’s brother, with
whom he lived in the United States, did not testify,
commenting that this absence “severely undercut[]
[Bhattarai’s] credibility.” We agree that substantial evidence
supports the IJ’s determination that Bhattarai’s brother
“might have corroborated” his testimony. Bhattarai’s brother
lived in Nepal when Maoists attacked Bhattarai in 2002 and
2008, and could potentially verify Bhattarai’s involvement in
the NCP. He may also have heard from Bhattarai or his
parents about the threats they received from Maoists after
Bhattarai moved to the United States and was living with
him.
However, the BIA’s reliance on the absence of testimony
from Bhattarai’s brother was error under Ren because the IJ
did not give Bhattarai notice and an opportunity to present the
BHATTARAI V. LYNCH 17
corroborative testimony before denying his asylum
application. See Ren, 648 F.3d at 1091. The government
argues that Bhattarai was on notice of the need for his
brother’s testimony. It points out that the government
attorney questioned Bhattarai during the hearing about why
his brother hadn’t appeared to testify, and that the IJ
overruled Bhattarai’s counsel’s objection by saying that this
line of questions “went to credibility.” However, even if this
was enough to alert Bhattarai that his brother’s absence was
fatal to his claim—which we are not sure it was—the IJ did
not give Bhattarai an opportunity to provide his brother’s
testimony after her determination that it was necessary. See
id. (if an IJ determines that corroboration is required, “the
applicant must then have an opportunity to provide it . . . .”)
(emphasis added). Instead, at the end of the merits hearing in
July 2011, the IJ ordered the evidentiary record “closed.”
Thus, by the time he knew he should have brought his brother
to the hearing, Bhattarai was out of luck. Because the IJ did
not give him an opportunity to provide his brother’s
testimony or explain why he could not, the absence of this
corroborative evidence cannot be the basis for denying him
relief. See Zhi, 751 F.3d at 1095; see also Chen v. Ashcroft,
362 F.3d 611, 620 (9th Cir. 2004) (“[W]e have held that due
process requires that an applicant be given a second
opportunity to establish eligibility for asylum where the
adverse credibility determination was based, without notice
to the applicant, on a failure to produce a relative as a
corroborating witness.”).
b. Supporting Letters
We now return to whether the absence from the
supporting letters of specific dates and details of the Maoist
attacks is a sufficient ground to deny relief. Even if evidence
18 BHATTARAI V. LYNCH
corroborating these dates and details was reasonably required
to sustain Bhattarai’s burden of proof, the IJ erred under Ren.
The IJ never mentioned the inadequacy of the supporting
letters Bhattarai submitted, or suggested a need for more
specific documents corroborating dates and details, until she
announced her decision. Thus, Bhattarai could not “act on the
IJ’s determination that he ‘should provide’ corroboration”
because he was “not given notice of that determination until
it [wa]s too late to do so.” Ren, 648 F.3d at 1091.
Bhattarai’s attempt to supplement the record with more
detailed letters perfectly illustrates the importance of the Ren
rule. After the IJ issued her decision stating that the
supporting letters in the record were too vague and did not
contain specific dates, Bhattarai was able to obtain new letters
from the NCP and UNESCO-YN verifying the specific
attacks he suffered on particular dates. But the BIA refused
to reopen his case to consider the new evidence because, in its
view, Bhattarai could have obtained this evidence at the time
of the previous hearing. Bhattarai thus found himself in an
impossible situation: he did not know until after the hearing
that certain evidence was required, but once he knew he could
not submit it because, in the view of the BIA, that evidence
had been available at the time of the hearing.
Because the REAL ID Act requires notice and a fair
opportunity to provide the necessary corroborative evidence
or explain why it is not reasonably available, we remand for
the BIA to provide Bhattarai with that opportunity.
B. CAT
The IJ and BIA also summarily denied Bhattarai’s
application for relief under the CAT. To the extent this denial
BHATTARAI V. LYNCH 19
was based on the flawed adverse credibility determination
regarding Bhattarai’s asylum and withholding claims, the
CAT denial must also be reconsidered on remand.
We note that an adverse credibility determination in the
asylum context does not necessarily support denial of an
applicant’s CAT claim. See Kamalthas v. INS, 251 F.3d 1279,
1284 (9th Cir. 2001) (“[W]e are not comfortable with
allowing a negative credibility determination in the asylum
context to wash over the torture claim . . . .” (internal citation
and quotation marks omitted)). Rather, in the CAT context
the BIA must consider “all evidence relevant to the possibility
of future torture,” including country conditions evidence. See
id. at 1282 (quoting 8 C.F.R. § 208.16(c)(3)); Madrigal v.
Holder, 716 F.3d 499, 508 (9th Cir. 2013) (“Under CAT’s
implementing regulations, the BIA must consider all evidence
of country conditions to determine the likelihood that an
applicant would be tortured.”).
Conclusion
The IJ and BIA’s adverse credibility determination is not
supported by substantial evidence. The IJ and BIA erred in
relying on the absence of certain corroborating evidence
without giving Bhattarai notice and an opportunity to provide
that evidence or explain why he cannot reasonably obtain it.
We GRANT the petition and REMAND for further
proceedings consistent with this opinion.