    11-3565
    Roka v. Holder
                                                                                  BIA
                                                                            Morace, IJ
                                                                          A089 266 928
                                                                          A089 266 929
                                                                          A089 266 930
                                                                          A089 266 931
                       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 A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 13th day of August, two thousand twelve.

    PRESENT:
                     JON O. NEWMAN,
                     ROBERT A. KATZMANN,
                     CHRISTOPHER F. DRONEY,
                            Circuit Judges.

    _____________________________________

    JYOTI PANT ROKA, AMAR ROKA,
    POOJA POKA, AAYUSH ROKA,
             Petitioners,
                                                           11-3565
                     v.                                    NAC

    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONERS:              Andrew K. Chow, Neil A. Weinrib &
                                  Associates, New York, N.Y.
    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Jennifer P. Levings, Senior
                                  Litigation Counsel; Tim Ramnitz,
                            Attorney, Office of Immigration
                            Litigation, Civil Division, United
                            States Department of Justice,
                            Washington, D.C.

 1       UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review

 4   is GRANTED, the BIA’s decision is VACATED, and the petition

 5   is REMANDED for further proceedings.

 6       Petitioner Jyoti Pant Roka, a native and citizen of

 7   Nepal, seeks review of an August 11, 2011, decision of the

 8   BIA, reversing the July 17, 2009, decision of Immigration

 9   Judge (“IJ”) Philip L. Morace, and denying her application

10   for asylum, withholding of removal, and protection under the

11   Convention Against Torture (“CAT”).1   In re Jyoti Pant Roka,

12   Nos. A089 266 928/A089 266 929/A089 266 930/A089 266 931

13   (B.I.A. Aug. 11, 2011), rev’ing, Nos. A089 266 928/A089 266

14   929/A089 266 930/A089 266 931 (Immig. Ct. N.Y. City July 17,

15   2009). We assume the parties’ familiarity with the

16   underlying facts and procedural history of the case.

17       Because the BIA vacated the decision of the IJ granting

18   Roka’s application for asylum, we review only the BIA’s


            1
             Roka’s husband, Amar Roka, and their two children,
       Pooja Roka and Aayush Roka, appear as derivative
       beneficiaries of Roka’s application.
                                  2
 1   decision.     See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

 2   Cir. 2005).     Because the BIA did not address the IJ’s

 3   credibility finding, however, we assume, but do not

 4   determine, Roka’s credibility for the purpose of analyzing

 5   her petition.     See id.    The applicable standards of review

 6   are well established.       See 8 U.S.C. § 1252(b)(4)(B); see

 7   also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.

 8   2008).

 9       Although we accord substantial deference to the

10   agency’s factual findings, our review of its decision

11   requires that the agency adequately identify and consider

12   relevant evidence in the first instance.       See Yi Long Yan v.

13   Gonzales, 478 F.3d 133, 142 (2d Cir. 2007) (“[O]ur duty [is]

14   to assess the BIA’s ruling to determine whether there was a

15   failure to consider an important fact in the record.”); Wei

16   Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) (“[T]he

17   BIA should provide us with more than cursory, summary or

18   conclusory statements, so that we are able to discern its

19   reasons for declining to afford relief to a petitioner.”

20   (internal quotation marks omitted)); see also Delgado v.

21   Mukasey, 508 F.3d 702, 709 (2d Cir. 2007) (“[F]ailure to

22   consider material evidence in the record is ground for

23   remand.”).

                                       3
 1       Here, the BIA denied Roka’s asylum and withholding of

 2   removal claims principally because it found that she had not

 3   demonstrated a nexus between her alleged political opinion

 4   and the harm she suffered, and feared that she would suffer,

 5   by the Maoists.2   To support this conclusion, it observed

 6   that she was not a prominent member of a political party

 7   that opposed the Maoists; that she was “apparently targeted

 8   because she and her husband owned a business”; and that the

 9   harm inflicted by the Maoists was motivated by their desire

10   to extort money from Roka.    Although the record is not

11   necessarily inconsistent with these findings, review of the

12   BIA’s decision confirms that it failed to address

13   sufficiently all of the material facts and ignored certain

14   applicable legal standards.

15       For example, that Roka was not a member of a political

16   party opposed to the Maoists is irrelevant to her asylum and

17   withholding claims, which were based on her alleged imputed

18   political opinion.   See Chun Gao v. Gonzales, 424 F.3d 122,



            2
             Although the BIA also held that Roka had failed to
       demonstrate eligibility for asylum and withholding of
       removal on account of her membership in a particular
       social group, Roka does not pursue this issue in her
       petition before this Court, which we therefore deem
       abandoned. See Yueqing Zhang v. Gonzales, 426 F.3d 540,
       545 n.7 (2d Cir. 2005).
                                    4
 1   129 (2d Cir. 2005) (“[T]he question in this case is not

 2   whether Gao was or is a practitioner of Falun Gong, but

 3   whether the authorities would have perceived him as such or

 4   as a supporter of the movement because of his activities.

 5   If authorities would persecute him as an adherent or as a

 6   supported of Falun Gong, then such persecution would be ‘on

 7   account of’ an enumerated ground.” (emphasis in original)).

 8       Moreover, while the Maoists may have been motivated, in

 9   part, by Roka’s status as a wealthy business owner, the

10   record suggests that this was not their sole motivation.

11   See Castro v. Holder, 597 F.3d 93, 103 (2d Cir. 2010)

12   (“[E]ven if recruitment were one reason for Rodas’s

13   persecution, that would not be conclusive, for Rodas need

14   show only that his political opinion, actual or imputed, was

15   ‘one central reason’ for his persecution, not that it was

16   the sole reason for it.” (emphasis in original)).     To the

17   contrary, credible evidence supports the inference that the

18   Maoists could have been motivated also by the fact that Roka

19   manufactured uniforms for the Nepalese Army, which was

20   opposed to the Maoists, and that Roka refused the Maoists’

21   request to manufacture uniforms for their own forces.     The

22   BIA did not explain why this evidence did not demonstrate

23   that the Maoists targeted Roka on account of their belief

                                  5
 1   that she was opposed to their political objectives.   See id.

 2   (“[C]areful attention to the particularized circumstances

 3   surrounding the alleged persecution remains necessary even

 4   if the persecution is generally categorized as extortion[.]”

 5   (internal quotation marks omitted)).

 6       Because the BIA did not address adequately critical

 7   evidence in the record, we remand Roka’s asylum and

 8   withholding claim for further consideration by the agency.

 9   And because the BIA’s perfunctory denial of Roka’s CAT claim

10   suffers from this same problem, we remand that claim as

11   well.

12       For the foregoing reasons, the petition for review is

13   GRANTED, the BIA’s decision is VACATED, and the matter is

14   REMANDED for further proceedings consistent with this order.

15   Any pending request for oral argument in this petition is

16   DENIED in accordance with Federal Rule of Appellate

17   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

18                              FOR THE COURT:
19                              Catherine O’Hagan Wolfe, Clerk
20
21




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