     17-1831
     Bardewa v. Barr
                                                                                   BIA
                                                                                Hom, IJ
                                                                           A200 921 020
                            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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 27th day of February, two thousand
 5   nineteen.
 6
 7   PRESENT:
 8            GUIDO CALABRESI,
 9            RICHARD C. WESLEY,
10            RAYMOND J. LOHIER, JR.,
11                 Circuit Judges.
12   _____________________________________
13
14   PARESH BARDEWA,
15                 Petitioner,
16
17                     v.                                        17-1831
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21                 Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                   Daniel P. Weick, Wendy W.H.
25                                     Waszmer, New York, NY.
26
27   FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
28                                     Attorney General; Nancy Friedman,
29                                     Senior Litigation Counsel; Kevin
30                                     J. Conway, Trial Attorney, Office
31                                     of Immigration Litigation, United
32                                     States Department of Justice,
33                                     Washington, DC.
 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.

 5       Petitioner Paresh Bardewa, a native and citizen of Nepal,

 6   seeks review of a May 11, 2017 decision of the BIA affirming

 7   a June 23, 2016 decision of an Immigration Judge (“IJ”)

 8   denying Bardewa’s application for asylum, withholding of

 9   removal, and relief under the Convention Against Torture

10   (“CAT”).   In re Paresh Bardewa, No. A 200 921 020 (B.I.A. May

11   11, 2017), aff’g No. A 200 921 020 (Immig. Ct. N.Y. City June

12   23, 2016).    We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed

15   the IJ’s decision as modified and supplemented by the BIA,

16   i.e., minus the IJ’s determination that Bardewa’s brother was

17   able to live in Nepal without persecution from the Maoists,

18   but considering the BIA’s conclusion that an individualized

19   analysis of conditions is not required.     See Xue Hong Yang

20   v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005);

21   Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).   The

22   standards of review are well established.       See 8 U.S.C.


                                   2
1    § 1252(b)(4)(B); Lecaj v. Holder, 616 F.3d 111, 114 (2d Cir.

2    2010).

3          An asylum applicant has the burden to establish past

4    persecution or a well-founded fear of future persecution on

5    account   of   race,      religion,       nationality,      membership       in   a

6    particular social group, or political opinion.                     See 8 U.S.C.

7    §§ 1101(a)(42),         1158(b)(1)(B)(i).             Because      the    agency

8    concluded that Bardewa established past persecution based on

9    his   political      opinion       (his    association      with    the   Nepali

10   Congress Party and pro-democracy views), he was entitled to

11   a presumption of a well-founded fear of future persecution on

12   the basis of his past harm.               8 C.F.R. § 1208.13(b)(1).           The

13   agency    denied     relief    based       on   its   conclusion      that    the

14   Government     had      rebutted    that    presumption.        As    discussed

15   below, we remand because the BIA applied the wrong legal

16   standard and failed to fully consider the totality of the

17   country conditions evidence.

18         The Government can rebut the presumption of a well-

19   founded   fear     of    future     persecution       by   establishing      that

20   “[t]here has been a fundamental change in circumstances such

21   that the applicant no longer has a well-founded fear of

22   persecution.”        8 C.F.R. § 1208.13(b)(1)(i), (ii); see also

23   Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 399 (2d
                                 3
1    Cir. 2005).    The Government must prove the fundamental change

2    by a preponderance of the evidence.            Lecaj, 616 F.3d at 114-

3    15.      In determining whether the Government has met its

4    burden, the agency “must conduct an individualized analysis

5    of    how   changed     conditions    would     affect        the       specific

6    petitioner’s situation,” Passi v. Mukasey, 535 F.3d 98, 102

7    (2d Cir. 2008) (internal quotation marks omitted, emphasis

8    added), and provide a reasoned basis for its finding that the

9    presumption of a well-founded fear of persecution is no longer

10   justified, Niang v. Mukasey, 511 F.3d 138, 148-49 (2d Cir.

11   2007).      The agency cannot ignore significant information

12   favorable to the applicant or rely on general changes in

13   country     conditions    without    conducting      an       individualized

14   analysis.     Tambadou v. Gonzales, 446 F.3d 298, 303–04 (2d

15   Cir. 2006).

16         The    BIA   misstated    the      law    by    ruling            that    an

17   individualized      analysis   of    Bardewa’s       situation          was    not

18   necessary.    Certified     Administrative       Record       at    4    (“[T]he

19   necessity     of   an   individualized    analysis        .    .    .    is    not

20   applicable in the Second Circuit”).            To the contrary, we have

21   consistently required an individualized analysis.                   See Lecaj,

22   616 F.3d at 115; Passi, 535 F.3d at 103-04; Tambadou, 446 at

23   303–04.     “This individualized analysis may justify different
                                      4
1    outcomes for applicants from the same country, even where the

2    agency considers the same documentary evidence.”           Lecaj, 616

3    F.3d at 115 (emphasis added).       To that end, we have cautioned

4    against overreliance on State Department country reports

5    demonstrating “changed conditions” absent an analysis of the

6    specific petitioner’s situation.         Tambadou, 446 F.3d at 303-

7    04.

8           In addition to misstating the law, the BIA provided

9    insufficient reasoning for its ruling.         It was not enough to

10   cite    an   unpublished   Fourth   Circuit    decision    finding   a

11   fundamental change, see Gurung v. Lynch, 667 F. App’x 389

12   (4th Cir. 2016), because Gurung provides no facts from which

13   we can conclude that the same individual circumstances were

14   alleged.     Even assuming the Fourth Circuit considered the

15   same documentary evidence that Bardewa presented, the BIA’s

16   reliance on the decision fails to account for individual

17   circumstances.     See Lecaj, 616 F.3d at 115.          Moreover, the

18   BIA’s decision does not reflect an assessment of the evidence

19   that the IJ relied on to evaluate how the 2013 elections and

20   resultant regime change in Nepal affected Bardewa’s specific

21   situation.     Notably, the 2015 State Department report and

22   other    documentary   evidence     in   the   record   reflect   that

23   journalists in Nepal have been targeted for harassment and
                                  5
1    violence by Maoist supporters even after the 2013 election.

2    Bardewa has published several articles critical of Maoists,

3    some while living in the United States, and his most recent

4    articles prompted Maoists to threaten his family in Nepal.

5    The BIA’s conclusory analysis does not account for this

6    evidence.     See Niang, 511 F.3d at 148-49.

7           Accordingly, we grant the petition and remand for the

8    BIA to determine whether the evidence supports the IJ’s

9    conclusion    that    there    has   been    a   fundamental      change   in

10   conditions     in    Nepal    for    someone     in   Bardewa’s    specific

11   circumstances.       Remand as to Bardewa’s withholding of removal

12   and CAT claims is also granted because those claims were

13   denied based on the same error.             See Lecaj, 616 F.3d at 119-

14   20.    Because we remand on this basis, we decline to reach

15   Bardewa’s claim of humanitarian asylum.                We note, however,

16   that in addressing that claim, the BIA relied solely on a

17   conclusion that the harm was not sufficiently severe and

18   appears to have overlooked Bardewa’s alternative allegation

19   that    he   would   “suffer    other     serious     harm.”      8   C.F.R.

20   § 1208.13(b)(1)(iii)(B).

21

22


                                           6
1       For the foregoing reasons, the petition for review is

2   GRANTED.

3                             FOR THE COURT:
4                             Catherine O’Hagan Wolfe,
5                             Clerk of Court




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