Yagendra Tilija v. Attorney General United States , 930 F.3d 165 ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 17-2765
______________
YAGENDRA TILIJA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
______________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(A208-925-410)
Immigration Judge: Daniel A. Morris
______________
Argued November 27, 2018
______________
Before: GREENAWAY, JR., SHWARTZ, and BIBAS,
Circuit Judges.
(Opinion Filed: July 12, 2019)
Stephen A. Fogdall
Rachel A.H. Horton [ARGUED]
Schnader Harrison Segal & Lewis
1600 Market Street
Suite 3600
Philadelphia, PA 19103
Counsel for Petitioner
Sharon M. Clay
Andrew J. Oliveira [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
______________
OPINION
GREENAWAY, JR., Circuit Judge.
Petitioner Yagendra Tilija appeals a final order of
removal issued by the Board of Immigration Appeals (“BIA”
or “Board”), which denied his motion to remand and dismissed
his appeal from the decision of the Immigration Judge (“IJ”).
For the following reasons, we will grant Tilija’s petition for
review, conclude as a matter of law that the new evidence Tilija
2
submitted established a prima facie asylum claim, and remand
for further proceedings.
I. Factual and Procedural Background
Tilija is a Nepali native and citizen who was charged
removable under 8 U.S.C. § 1182(a)(7)(i)(I) and applied for
asylum and withholding of removal under the Immigration and
Nationality Act (“the Act”) and protection under the
Convention Against Torture (“CAT”). 1 Tilija joined the
Nepali Congress Party (“NCP”) in 2013, which is the political
rival of the Maoist Party. Tilija campaigned on behalf of the
NCP by attending meetings, putting up posters, participating in
rallies, distributing pamphlets, and canvassing door-to-door.
Maoists told Tilija to join their party and warned him not to
participate in the election. On an occasion where Tilija was
campaigning for the NCP, a group of Maoists attacked him,
throwing stones at Tilija and injuring his face above his right
eye and along the side of his face, resulting in six stitches.
Maoists came to Tilija’s home and told his father that if they
saw Tilija, they would kill him. When Tilija was discharged
from the hospital, he stayed at a hotel instead of going to his
home in the village due to this threat.
Tilija, feeling unsafe, moved to Pokhara, a town four
hours away from his home. When he reached Pokhara,
Maoists called him and told him that the y would kill him the
1
Although Tilija seeks, in addition to asylum, withholding of
removal and CAT relief in his motion to remand, we conclude
that he establishes a prima facie case for asylum. Therefore,
we need not address these alternate forms of relief. See
Shardar v. Att’y Gen., 503 F.3d 308, 312 n.4 (3d Cir. 2007).
3
next time they found him. A month later, Maoists called Tilija
again, telling him to leave the NCP and warning him that if he
did not, they would kill him. Maoists called a third time, telling
Tilija that if he came back to his village, they would kill him.
One day, an individual who Tilija knew to be a Maoist activist
visited the store where Tilija was working, and though the
individual did not say anything, Tilija became afraid and
decided to quit his job and leave Pokhara.
Tilija then moved to Kathmandu. Approximately a
month later, a Maoist called him and again threatened to kill
him, at which point Tilija stopped using his cell phone. Tilija
remained in Kathmandu for a year, until an earthquake
destroyed the house he was renting, after which Tilija lived in
a tent for a month, afraid to return home to his village. There
were strikes and protests against the government throughout
the country, and Tilija did not feel safe from the Maoists amidst
the chaos, so he decided to leave Nepal. Tilija observed that
many members of the police were affiliated with Maoists, and
according to Tilija, the police did not investigate crimes
committed by Maoists. Therefore, Tilija did not report the
Maoists’ attack on him or any of their threats to the police
because he believed that the police would not be able to protect
him. He had observed previously that the police did not
investigate when Maoists murdered his cousin’s father-in-law.
He was also afraid that if he went to the police, the Maoists
would find out and retaliate.
The IJ denied Tilija’s application for asylum and
withholding of removal under the Act and the CAT. The IJ
found Tilija to be credible regarding his claim and found that
Tilija adequately corroborated his claim with evidence. The IJ
also found that Tilija was targeted for his political opinion.
However, the IJ determined that the harm Tilija suffered did
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not rise to the level of persecution under the Act and that Tilija
did not establish that the government was unable or unwilling
to protect him.
On appeal to the BIA, Tilija presented new evidence
that was not available previously. According to Tilija, after his
merits hearing on January 6, 2017, his wife was assaulted and
raped on January 21, 2017, because of his political activities,
opinion, and affiliation with the NCP. Tilija’s wife provided a
letter for submission to the BIA, noting she “went to [a] nearby
police office and reported the incident.” JA 357. She also
submitted medical records of an abortion and treatment in a
clinic following the assault and rape. Mrs. Tilija also provided
letters from individuals in Nepal, including one from a friend
who corroborated that Tilija and his wife have both been
victims of Maoists, and that following her rape and assault,
Mrs. Tilija “reported to the police on the same day but she did
not get any help from [the] police.” JA 346. Despite this new
evidence, the BIA denied Tilija’s motion for remand and held
that he did not present sufficient evidence to overcome the IJ’s
determination that Tilija failed to show that the government
was unable or unwilling to protect him. This timely petition
for review followed.
II. Jurisdiction and Standard of Review
The IJ had jurisdiction over Tilija’s immigration
proceedings pursuant to 8 U.S.C. § 1229a. The BIA had
jurisdiction pursuant to 8 C.F.R. §§ 1003.1(b) and 1240.15, and
it exercised jurisdiction over the motion to remand under 8
C.F.R. § 1003.2(c). We have appellate jurisdiction over final
orders of removal pursuant to 8 U.S.C. § 1252(a).
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We review the BIA’s denial of a motion to remand for
abuse of discretion and review underlying findings of fact for
substantial evidence. 2 Filja v. Gonzales, 447 F.3d 241, 251 (3d
Cir. 2006). An abuse of discretion is found where the BIA’s
denial of a motion to remand is “arbitrary, irrational, or
contrary to law.” Id. (internal quotations marks omitted)
(quoting Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.
2002)). “We review the BIA’s legal conclusions de novo, but
we accord deference under Chevron v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1884), to its interpretation
of statutes and regulations within its enforcement jurisdiction.”
Huang v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010)
(citations omitted).
2
A motion to remand seeking the introduction of new evidence
is adjudicated under the same standard for adjudicating a
motion to reopen. See Huang v. Att’y Gen., 620 F.3d 372, 389
(3d Cir. 2010); 8 C.F.R. § 1003.2(c)(4); In re Coelho, 20 I. &
N. Dec. 464, 471 (B.I.A. 1992) (“[W]here a motion to remand
is really in the nature of a motion to reopen or a motion to
reconsider, it must comply with the substantive requirements
for such motions.”). For this reason, “motion to reopen” is also
used in this opinion to address the legal standard utilized.
6
III. Analysis
Tilija raises two main issues on appeal. 3 First, he
contends that the BIA erred in failing to accept his new
evidence as true when evaluating his prima facie claim for
asylum relief. Second, he argues that the BIA incorrectly
analyzed his prima facie claim by applying the incorrect
standard to his new evidence. Tilija raises valid points on both
issues, and indeed provides sufficient evidence to support a
prima facie claim. We will therefore grant his petition for
review and remand for further proceedings, consistent with this
opinion.
A. Standard for Establishing a Prima Facie Claim for
Asylum Relief
The BIA may deny a motion to remand asylum
proceedings if it determines that (1) the movant has not
established a prima facie claim for the relief sought, (2) the
movant has not introduced previously unavailable, material
evidence, or (3) in the case of discretionary relief, such as
asylum, the movant would not be entitled to relief even if the
3
Petitioner also alludes to the fact that the BIA issued a
summary opinion. Appellant’s Br. at 19 (“[T]he BIA’s opinion
does not articulate which, if any, of these options is utilized . .
. .”). The BIA must perform an analysis of sufficient depth to
permit meaningful appellate review of its reasoning and lack
of such analysis has served as a ground to remand. Toussant
v. Att’y Gen., 455 F.3d 409, 414 (3d Cir. 2006). Because we
resolve this case on other grounds, we need not reach the merits
of this argument.
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motion was granted. 8 C.F.R. § 1003.2(c)(1); Huang, 620 F.3d
at 389.
Here, only the first prong is at issue: whether Tilija’s
new, material evidence establishes a prima facie claim for
asylum. To establish a prima facie claim, the movant “must
produce objective evidence that, when considered together
with the evidence of record, shows a reasonable likelihood that
he is entitled to [asylum] relief.” Huang, 620 F.3d at 389
(citation omitted). The BIA “must actually consider the
evidence and argument that a party presents” and may not
summarily dismiss the motion. Zheng v. Att’y Gen., 549 F.3d
260, 266 (3d Cir. 2008) (quoting Abdulai v. Ashcroft, 239 F.3d
542, 549 (3d Cir. 2001)).
To establish a “reasonable likelihood” that he is entitled
to asylum relief, the movant must “merely show[] a realistic
chance that the petitioner can at a later time establish that
asylum should be granted.” Guo v. Ashcroft, 386 F.3d 556,
564 (3d Cir. 2004). The movant is entitled to asylum if he
demonstrates a well-founded fear of persecution. See id. To
establish a well-founded fear of persecution, the petitioner
must demonstrate, first, that he “has a fear of persecution . . .
on account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 C.F.R.
§ 1208.13(b)(2)(i)(A); Huang, 620 F.3d at 380–81. Second,
the petitioner must show that there is a “reasonable possibility”
that he will suffer persecution based on a protected ground if
returned to his or her native country. 8 C.F.R.
§ 1208.13(b)(2)(i)(B). Third, the petitioner must show that he
“is unable or unwilling to return to, or avail himself or herself
of the protection of, that country because of such fear.” Id. at
8 C.F.R. § 1208.13(b)(2)(i)(C). “If an applicant demonstrates
past persecution on account of a protected ground there is ‘a
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rebuttable presumption of a well-founded fear of future
persecution, as long as that fear is related to the past
persecution.’” Shardar v. Att’y Gen., 503 F.3d 308, 312 (3d
Cir. 2007) (quoting Lukwago v. Ashcroft, 329 F.3d 157, 174
(3d Cir. 2003)).
The IJ found Tilija testified credibly, and that he was
targeted on account of his political opinion. However, the IJ
determined that the harm Tilija suffered did not rise to level of
persecution under the Act, and that the Petitioner did not
establish that the Nepali government was unable or unwilling
to protect him.
B. The BIA Must Accept Facts Presented as True
The BIA must accept Tilija’s facts presented on his
motion to remand as true. “Facts presented in the motion to
[remand] are ‘accepted as true unless inherently
unbelievable.’” Shardar, 503 F.3d at 313 (quoting Bhasin v.
Gonzales, 423 F.3d 977, 987 (9th Cir. 2005)). When Tilija
presented letters of evidence stating his wife reported her
attack to the police and the police did not help, the BIA did not
accept them as true. Instead, the BIA questioned the veracity
of Mrs. Tilija and her friend’s statements regarding what the
police “did or did not do” despite both letters stating the police
did not act. Additionally, the BIA opinion asks for “more
details regarding [Mrs. Tilija’s] interaction with the police,”
still not accepting the evidence as true. JA 8.
Although the BIA does not need to discuss every piece
of evidence in the record, it may not “ignore or misconstrue
evidence in the asylum applicant’s favor,” which is what the
BIA did with Tilija’s new evidence. Espinosa-Cortez v. Att’y
Gen., 607 F.3d 101, 107 (3d Cir. 2010). The BIA does not note
9
that anything in Tilija’s new evidence is inherently
unbelievable, therefore it must be taken as true. When the BIA
did not accept this evidence as true, it incorrectly applied an
overly rigorous standard to Tilija’s new evidence.
We have held that not accepting evidence as true is an
abuse of discretion if the petitioner would have established a
prima facie case with the ignored evidence. See Shardar, 503
F.3d at 313. Therefore, the next step in the analysis is
determining whether Tilija established a prima facie case for
asylum assuming his new evidence as true. If Tilija has
provided sufficient evidence to establish a prima facie claim,
the BIA’s decision to deny his motion would lack substantial
evidence, and therefore would be an abuse of discretion. For
the reasons set forth in the following section, we hold that Tilija
does establish a prima facie case, and therefore the BIA’s
decision to deny Tilija’s motion to remand is an abuse of
discretion because the BIA lacked substantial evidence for its
decision.
C. Tilija’s New Evidence Establishes a Prima Facie Claim
for Asylum
Tilija’s new evidence, accepted as true, in combination
with his evidence in the record, establishes a prima facie
asylum claim. An asylum seeker need not prove his entire
asylum case to properly assert a prima facie claim. See Guo,
386 F.3d at 564 (noting that prima facie “would lack meaning”
if it required all evidence submitted at the prima facie stage to
be able to establish eligibility for asylum). “To establish a
prima facie claim, the [movant] must produce objective
evidence that, when considered together with the evidence of
record, shows a reasonable likelihood that he is entitled to
relief.” Huang, 620 F.3d at 389 (citation omitted). This means
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Tilija must “merely show[] a realistic chance” that he “can at a
later time establish that asylum should be granted.” Guo, 386
F.3d at 564.
With respect to asylum relief, Tilija would need to
demonstrate a reasonable likelihood that he possesses a well-
founded fear of persecution, which requires: (1) past
persecution; (2) that was due to membership in a particular
social group; and (3) the person is unable or unwilling to return
or avail himself of the protection of his native country. 8
U.S.C. § 1158(b). As stated previously, in evaluating Tilija’s
well-founded fear of persecution, the IJ determined that Tilija
did not establish past persecution, nor that he demonstrated an
inability to avail himself of the protections of the state. Here,
Tilija provides objective evidence in the form of multiple
letters and medical reports from Nepal regarding his wife’s
attack. All letters attest to the fact that his wife was assaulted
and raped, and the medical records support treatment
consistent with such an attack. Both Mrs. Tilija and her friend
reported that the police were notified of the attack and did not
act.
The government emphasized that the only issue was
whether Tilija could avail himself of the protection of his
native country. Tilija need only provide enough evidence of
this inability to rely on police protection to show he has a
realistic chance to establish that his asylum claim should be
granted at a later date. Mrs. Tilija’s letters, taken as true,
evince police indifference to her politically-motivated attack.
If Mrs. Tilija did tell the police on the same day and they
did nothing, then it is unlikely that should Tilija himself return
to Nepal, he would be able to avail himself of the country’s
protection from political persecution. The fact that Tilija’s
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wife was attacked, and not Tilija, does not cut against his
asylum claim because she was attacked due to his political
beliefs. In Shardar, we held that an affidavit from Shardar’s
brother in Bangladesh that the brother had been recently
threatened with a gun by a rival party to Shardar’s political
party showed “a significant likelihood that Shardar would be
subjected to particularized persecution” should he return to
Bangladesh. 503 F.3d at 317.
We also held that medical records that confirmed his
wounds were consistent with a beating supported the brother’s
affidavit. Id. Just as the individuals who attacked Shardar’s
brother inquired about Shardar, Mrs. Tilija’s attackers inquired
about Tilija’s whereabouts and threatened him prior to
attacking her, which is consistent with their prior inquiries
regarding her husband’s whereabouts. Additionally, third-
party medical records corroborate the nature of her attack. Past
persecution of family members due to the asylum seeker’s
social groups qualify to establish persecution for the asylum
seeker’s claim. Id. Therefore, Mrs. Tilija’s inability to avail
herself of the protection of her country against political
enemies of her husband, in connection with her attack that rises
to the level of past persecution, satisfies the reasonable
likelihood standard that Tilija possesses a well-founded fear of
persecution.
D. Tilija Meets All Three Prongs to Grant His Motion to
Remand
Since Tilija makes out a prima facie claim for relief, the
BIA erred in denying his motion to remand. The BIA may
deny a motion to remand asylum proceedings if it determines
that (1) the movant has not established a prima facie case for
the relief sought, (2) the movant has not introduced previously
12
unavailable, material evidence, or (3) in the case of
discretionary relief, such as asylum, the movant would not be
entitled to relief even if the motion was granted. 8 C.F.R. §
1003.2(c)(1). As outlined above, Tilija’s evidence shows a
realistic chance that he can, at a later time, establish that
asylum should be granted.
In addition to failing to establish a prima facie case, the
BIA may deny a motion to reopen (and thus remand)
immigration proceedings if the movant has failed to introduce
previously unavailable, material evidence that justifies
reopening. 8 C.F.R. § 1003.2(c)(1). Here, the government
does not contend that Tilija’s evidence that his wife was
attacked, raped, and reported the incident to police officers
who did not help her, is not new, material evidence. Instead,
the government argues that the evidence was insufficiently
detailed to establish prima facie eligibility for asylum relief.
As the wife’s attack occurred after the IJ’s asylum
determination, it was impossible to provide this information
prior to the determination. This is not an avenue by which the
BIA can deny Tilija’s motion to remand.
Lastly, in cases in which the ultimate grant of relief is
discretionary (e.g., asylum), the BIA can “leap ahead . . . over
the two threshold concerns (prima facie case and new
evidence) and simply determine that even if they were met, the
movant would not be entitled to the discretionary grant of
relief.” INS v. Abudu, 485 U.S. 94, 105 (1988); Sevoian, 290
F.3d at 170. Here, finding that Tilija meets his prima facie and
new evidence threshold would require that the BIA remand his
case. Again, the government does not make the argument that
he would not be entitled to discretionary relief assuming he
meets the first two thresholds. This is also not an avenue by
which the BIA can deny Tilija’s motion to remand.
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E. As a Matter of Law, Tilija Establishes a Prima Facie
Claim
Our Court may also as a matter of law conclude that the
evidence submitted by Tilija in support of his motion to
remand constitutes prima facie evidence. See Guo, 386 F.3d at
564. In Guo, we determined that not only did the BIA apply
the incorrect standard to Guo’s evidence, it did so to the
detriment of finding Guo had established her prima facie claim.
Id. Therefore, as a matter of law, we held that she provided
enough evidence to make a prima facie showing. Id. (noting
“while we cannot yet say that Guo is entitled to asylum, we are
persuaded that she at least deserves a hearing”). The facts here
closely mirror the facts in Guo, and the BIA similarly applied
the incorrect standard to evidence that should have been
considered sufficient for a prima facie claim, thus we reach the
same conclusion. As a matter of law, we find that Tilija has
provided enough evidence to put forth a prima facie claim.
IV. Conclusion
The Board’s rejection of Tilija’s motion to remand was
improper. The BIA applied the wrong standard in evaluating
his motion to remand, failing to take his new evidence as true.
Additionally, Tilija successfully made a prima facie claim
under the correct standard: he presented evidence
demonstrating a reasonable likelihood that he would prevail on
the merits. We will thus grant Tilija’s petition for review, hold
that he establishes a prima facie claim, and remand for further
proceedings consistent with this opinion.
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