     13-4500
     Sherpa v. Lynch
                                                                                        BIA
                                                                                  Brennan, IJ
                                                                            A089 250 804/805

                            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 TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   7th day of July, two thousand sixteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PETER W. HALL,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   ANG DANDI SHERPA, NGIM PASHI SHERPA,
14            Petitioners,
15
16                     v.                                            13-4500
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONERS:                    Ramesh K. Shrestha, New York, New
24                                       York.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; Justin
28                                       Markel, Assistant Director;
29                                       Margaret A. O’Donnell, Trial
 1                                    Attorney, Office of Immigration
 2                                    Litigation, United States
 3                                    Department of Justice, Washington,
 4                                    D.C.
 5
 6         UPON DUE CONSIDERATION of this petition for review of a

 7   Board of Immigration Appeals (“BIA”) decision, it is hereby

 8   ORDERED, ADJUDGED, AND DECREED that the petition for review is

 9   GRANTED.

10         Petitioners Ang Dandi Sherpa and Ngim Pashi Sherpa, natives

11   and citizens of Nepal, seek review of an August 15, 2011,

12   decision of the BIA, vacating a July 20, 2009, decision of an

13   Immigration Judge (“IJ”) granting Petitioners asylum.            In re

14   Ang Dandi Sherpa, Ngim Pashi Sherpa, Nos. A089 250 804/805

15   (B.I.A. Aug. 15, 2011), vacating Nos. A089 250 804/805 (Immig.

16   Ct.   N.Y.   City   July   20,   2009).   We   assume   the   parties’

17   familiarity with the underlying facts and procedural history

18   in this case.

19         Under the circumstances of this case, we have reviewed the

20   decision of the BIA.       See Yan Chen v. Gonzales, 417 F.3d 268,

21   271 (2d Cir. 2005).    “[T]he BIA may only review the IJ’s factual

22   findings to determine whether they are clearly erroneous.”

23   Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 296 (2d

24   Cir. 2006) (citing 8 C.F.R. § 1003.1(d)(3)(i)).         In reviewing

                                         2
1    the BIA’s application of the “clear error” standard, “we must

2    determine whether the BIA has provided sufficient justification

3    for its conclusion that the IJ has committed clear error . .

4    . [and] make sure that the BIA has not violated the prohibition

5    against making its own findings of fact.”   Wu Lin v. Lynch, 813

6    F.3d 122, 129 (2d Cir. 2016).        Here, the BIA failed to

7    adequately explain its determination that the IJ committed

8    clear error in finding that Mr. Sherpa suffered past persecution

9    on account of his political opinion.

10       In order to demonstrate eligibility for asylum, “the

11   applicant must establish that race, religion, nationality,

12   membership in a particular social group, or political opinion

13   was or will be at least one central reason for persecuting the

14   applicant.”    8 U.S.C. § 1158(b)(1)(B)(i); see also In re

15   J-B-N- and S-M-, 24 I. & N. Dec. 208, 212 (B.I.A. 2007).

16   “‘[A]sylum may be granted where there is more than one motive

17   for mistreatment, as long as at least one central reason for

18   the mistreatment is on account of’ a protected ground.”

19   Acharya v. Holder, 761 F.3d 289, 297 (2d Cir. 2014) (quoting

20   H.R. Rep. No. 109-72, at 165 (2005) (Conf. Rep.)).

21       In finding clear error in the IJ’s grant of asylum, the BIA

22   explained that there was no record evidence that Maoists
                                    3
1    targeted Ang on account of his political opinion.     The BIA’s

2    explanation is contradicted by the record.     Sherpa credibly

3    testified that, in addition to being targeted for his wealth

4    and status as a teacher, he was targeted as a long-standing

5    member of the Nepali Congress Party and enemy of the Maoist

6    Party.   Furthermore, Ang submitted a letter from the Maoist

7    Party that accused him of working for the Nepalese Government,

8    which it considered a political enemy.    The BIA thus ignored

9    material evidence that Maoists may have had a mixed motive for

10   targeting Ang, including his political opinion.    Accordingly,

11   the BIA failed to satisfy its obligation to adequately explain

12   its determination that the IJ committed clear error in finding

13   that Maoists persecuted Ang on account of his political opinion.

14   See Wu Lin, 813 F.3d at 129; Acharya, 761 F.3d at 298-300.

15       As to social group, the BIA reasonably determined that the

16   IJ committed clear error in finding that Maoists targeted Ang

17   on account of his membership in a particular social group, given

18   that the group (defined by the IJ) lacked the required

19   particularity and social distinction.    See In re M-E-V-G-, 26

20   I. & N. Dec. 227, 239-40 (B.I.A. 2014).       Nevertheless, in

21   considering Ang’s political persecution claim on remand, the

22   agency should consider any political dimension to Ang’s work
                                    4
1    as   a   teacher   and   affiliation   with   numerous   teachers’

2    organizations.     See Acharya, 761 F.3d at 302.

3         For the foregoing reasons, the petition for review is

4    GRANTED, and the case is REMANDED for further proceedings

5    consistent with this order.     As we have completed our review,

6    any stay of removal that the Court previously granted in this

7    petition is VACATED, and any pending motion for a stay of removal

8    in this petition is DISMISSED as moot.    Any pending request for

9    oral argument in this petition is DENIED in accordance with

10   Federal Rule of Appellate Procedure 34(a)(2), and Second

11   Circuit Local Rule 34.1(b).

12                                  FOR THE COURT:
13                                  Catherine O’Hagan Wolfe, Clerk




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