Min Neupane v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIN RAJ NEUPANE, No. 16-72566
Petitioner, Agency No. A099-910-412
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 2, 2021
San Francisco, California
Before: BALDOCK,** WARDLAW, and BERZON, Circuit Judges.
Min Raj Neupane seeks review of a final order of the Board of Immigration
Appeals (BIA) dismissing Neupane’s appeal of an Immigration Judge’s (IJ’s)
denial of his application for asylum. We reverse and remand for further
proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Bobby R. Baldock, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
We review adverse credibility determinations for substantial evidence. Iman
v. Barr, 972 F.3d 1058, 1064 (9th Cir. 2020). Although this review is deferential,
we require adverse credibility determinations to be supported by “specific and
cogent reasons” considered “in light of ‘the totality of the circumstances.’” Id. at
1064, 1065 (quoting Shrestha v. Holder, 590 F.3d 1034, 1040 (9th Cir. 2010)).
Where, as here, the BIA issues a decision that adopts part of the IJ’s reasoning, we
review the reasons “explicitly identified by the BIA, and then examine the
reasoning articulated in the IJ’s . . . decision in support of those reasons. . . . [W]e
do not review those parts of the IJ’s adverse credibility finding that the BIA did not
identify as ‘most significant.’” Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014)
(internal quotation marks omitted) (quoting Tekle v. Mukasey, 533 F.3d 1044, 1051
(9th Cir. 2008)).
Here, the BIA relied on only two aspects of the IJ’s adverse credibility
determination: asserted inconsistencies between Neupane’s oral testimony and the
passport pages included in the record, and in Neupane’s testimony regarding when
he received a letter confirming his membership in the Tarun Dal. On review of the
record and the IJ opinion, neither of these reasons support an adverse credibility
determination.
1. First, the presence of Iran entry stamps, and the “lack of any stamps [on
the passport pages submitted] showing [Neupane’s] entry or exit into Dubai,” do
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not support an adverse credibility determination. When asked where he had
travelled on his current passport, Neupane responded that he had travelled to Dubai
and Iran. This statement was consistent with his previous testimony, in which he
stated that he had travelled only to Qatar and perhaps India on a previous, expired
passport. Although the BIA opinion states that Neupane mentioned Iran only after
the Department of Homeland Security (DHS) lawyer submitted into evidence the
passport pages showing stamps for Iran, the transcript shows otherwise: the Iran-
stamped pages were submitted after, not before, Neupane stated that he had
travelled to Iran on his new passport.1 Nor does the record indicate that Neupane
specifically omitted evidence of his travel to Iran from the documentary record.
He initially submitted only those pages of his passport showing his identifying
information and United States entry visa, excluding all other stamped pages.
This original, limited submission of passport pages only to show identity and
arrival in the United States also explains the absence of Dubai entry stamps in the
record. At the hearing, the government attorney, who had access to Neupane’s
entire passport, stated that she had omitted some stamped passport pages from the
record because she deemed them not relevant. Given Neupane’s testimony that the
1
Neupane brought up his travel to Iran after the government’s attorney had
reviewed Neupane’s passport and stated her intent to ask about it (but before
submitting any pages into evidence). This sequence of events was not cited by the
BIA as a basis for its adverse credibility determination or even noted in its
opinion.
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two places he went on the new passport from Nepal (aside from the United States)
were Dubai and Iran, those stamps could have shown travel to Dubai. Contrary to
a statement in the BIA opinion, Neupane was not asked by the DHS attorney why
there were no Dubai stamps for the period in question. At no point in the hearing
proceedings did that attorney or the presiding IJ—who was not the same IJ who
authored the opinion—suggest that there was any doubt as to whether Neupane had
traveled to Dubai, as he had testified. Indeed, the only reason raised by the
government and suggested by the presiding IJ for reaching an adverse credibility
determination concerned Neupane’s return visit to Nepal in 2006—a reason
expressly not relied on by the BIA.
The BIA’s factual errors concerning whether the record establishes the
absence of Dubai stamps in the passport, whether Neupane was asked about any
such gap, and whether Neupane mentioned his Iran trip after, rather than before,
the DHS submitted evidence of that trip, greatly undermine the Board’s conclusion
that Neupane’s testimony was not credible as to whether he went to Dubai during
the relevant period. See Iman, 972 F.3d at 1062. In light of those errors, the
conclusion was not based on substantial evidence.
2. The remaining reason relied on by the BIA for affirming the adverse
credibility determination is an asserted inconsistency in Neupane’s testimony
regarding the timing of when he received a letter affirming his membership in
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Tarun Dal. Neupane submitted two letters from Nepalese political organizations:
one from the Nepali Congress, a large political party, and one from Tarun Dal, the
youth wing of the Nepali Congress. Both letters were issued in 2009. Neupane
also submitted a Tarun Dal membership card, issued in 2005. When the IJ asked
Neupane how he obtained the Tarun Dal letter, he responded that he “got it through
mail because I contacted in Nepal,” and that his sister had mailed the letter to him
from his house in Nepal. The judge then asked Neupane when he obtained the
letter, and the following exchange ensued:
COURT: But when did you obtain the letter from the office?
NEUPANE: This happened long time ago. I can't— I'm not sure I remember.
COURT: So before you left Nepal?
NEUPANE: Yes, I believe so.
COURT: Okay. Just to be sure. Before you left Nepal?
NEUPANE: Yes.
COURT: I'm asking the question, sir, because the letter—the date on the
letter seems to be August 21st, 2009. Can you explain?
NEUPANE: So my sister went and then all the party people that Min Raj -
how long Min Raj has been in party - been a member of the - being a
member. And because I may, I may need as an evidence, I had asked my
sister to bring - send these documents.
When further pressed by the IJ, Neupane stated that he “made a mistake” when he
stated that he obtained the letter before he left Nepal.
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Considered in the totality of the circumstances, this testimonial sequence
cannot alone support an adverse credibility determination. See Iman, 972 F.3d at
1065. The only inconsistency in Neupane’s testimony concerns when he requested
a particular letter, the one from Tarun Dal. He had earlier testified as to another
letter concerning his membership in the party, stating that his sister obtained it, not
from the documents Neupane had left in his house, but by going to the
organization’s office and requesting it. When first asked by the IJ when he
obtained the Tarun Dal letter, he said he could not remember; it was the IJ who
suggested that it was before Neupane left Nepal, and Neupane tentatively agreed—
“Yes, I believe so.” Only when pressed further was Neupane more definite, and
then, once more, only by agreeing with what the IJ said, not by stating the
sequence himself.
Throughout the questioning, Neupane consistently testified that his sister
sent him the letters from Nepal. The government does not contend, nor does
anything in the record suggest, that the documents are fraudulent or that Neupane
was not a member of Tarun Dal. Neupane’s assertion that he was a member of a
non-Maoist party is supported by other documentary evidence in the record,
including the letter issued by the Nepali Congress and a Tarun Dal membership
card issued in 2005.
Given Neupane’s earlier testimony regarding how the Nepali Congress letter
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was obtained, his later explanation as to the Tarun Dal letter reduces to confusion
as to whether his sister obtained one or two letters after he left by going to an
organization’s office to request the letter. Neupane did not simply manufacture a
scenario on the spot in which his sister so obtained a letter concerning his political
activities.
On the record as a whole, and given the peripheral pertinence of the minor
discrepancy to Neupane’s overall testimony, this evidence does not supply
sufficient evidence to support the IJ’s adverse credibility determination.2
3. Because the BIA affirmed the IJ’s adverse credibility determination, the
Board did not reach the remaining issues in Neupane’s asylum and withholding
claims. We therefore remand for consideration of whether, accepting his testimony
as credible, Neupane is entitled to asylum or withholding of removal.
4. The BIA did not err in affirming the IJ’s holding that Neupane was not
entitled to relief under the Convention Against Torture. Neupane bears the burden
of showing that it is “more likely than not” he will be tortured if returned to Nepal.
8 C.F.R. § 1208.16(c)(2). Substantial evidence supports the IJ’s conclusion that
conditions in Nepal have considerably changed such that Neupane has failed to
carry his burden. According to the U.S. Department of State’s 2013 Human Rights
2
Because the BIA did not rely on Neupane’s return trips to Nepal in affirming the
IJ’s credibility determination, we do not review that portion of the IJ’s opinion.
Lai, 773 F.3d at 970.
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Report on Nepal: the country has remained at peace for over a decade since the end
of the civil war, the Maoist party now competes in “essentially free and fair
elections,” at least for the Constituent Assembly, and the “number and severity of
[violent] incidents decreased markedly following the end of the Maoist insurgency
in 2006.” While Neupane contests the accuracy of reports of generally improved
conditions in Nepal, he has presented no evidence that he as an individual is more
likely than not to be tortured.
GRANTED in part, DENIED in part, and REMANDED
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