The Tenth Circuit published its opinion in Karki v. Holder on Tuesday, April 30, 2013.
Petitioner Narendra Raj Karki, a native and citizen of Nepal, petitioned for review of a decision of the Board of Immigration Appeals (BIA) affirming an order of the immigration judge (IJ) that denied his application for asylum and restriction on removal under the Immigration and Nationality Act (INA) and protection under the United Nations Convention Against Torture (CAT).
Karki argued that the BIA and IJ erred in concluding he failed to show past persecution, a well-founded fear of future persecution, and a nexus between the alleged persecution and his political opinion. Karki had presented evidence that he was beaten badly by a group of Maoists who attacked him because of his political opinions. He also presented evidence that a vehicle in which he should have been traveling was bombed by the Maoists and that he was their intended target. The BIA concluded that the Maoists’ actions toward Karki were motivated only by their desire to extort money or recruit him and that “[t]he record does not reflect that Maoists had the intention to persecute [Petitioner] even partly because of his political opinion or a political opinion imputed to him.” The Tenth Circuit held that this conclusion was incorrect so the BIA’s decision could not be upheld on that ground.
The court also held that Karki “suffered past persecution, giving rise to a rebuttable presumption of a well-founded fear of future persecution.” The court granted Karki’s petition for review and remanded the case for determination of “whether Petitioner’s past persecution was sufficiently severe that he did not need to demonstrate a well-founded fear of future persecution, and, if not, (2) whether changed country conditions or the possibility of internal relocation are sufficient to rebut the presumption that he has a well-founded fear of future persecution.”
Karki also argued that the BIA and IJ erred in concluding he had not established his entitlement to relief under the CAT. The IJ and BIA concluded that Karki was not entitled to relief because he had not demonstrated that government officials would be likely to acquiesce in his torture upon his return to Nepal. Karki presented evidence that the Nepalese government is aware of and does not prevent frequent acts of torture committed by Maoists. Karki was not required to show the government would turn a blind eye to specific threats of torture against him in particular.
The court vacated BIA’s affirmance of the ALJ’s decision and remanded on both the petition for asylum and the CAT claim.