         12-3306
         Dhakal v. Holder
                                                                                       BIA
                                                                                  Weisel, IJ
                                                                               A089 915 705
                                                                               A089 915 706
                                                                               A089 915 707
                             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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 19th day of November, two thousand thirteen.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                BARRINGTON D. PARKER,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       SURENDRA RAJ DHAKAL, SHILA PAHARI,
14       SUJAN DHAKAI,
15                Petitioners,
16
17                          v.                                  12-3306
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONERS:              Khagendra Gharti-Chhetry, New York,
25                                     NY.
26
27       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
28                                     Attorney General; Shelley R. Goad,
29                                     Assistant Director; Jennifer R.
 1                             Khouri, Trial Attorney, Office of
 2                             Immigration Litigation, United
 3                             States Department of Justice,
 4                             Washington, 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

 9   is GRANTED in part and DENIED in part.

10       Petitioners Surendra Raj Dhakal, Shila Pahari, and

11   Sujan Dhakai, natives and citizens of Nepal, seek review of

12   a July 27, 2012, order of the BIA, affirming an October 28,

13   2010 decision of Immigration Judge (“IJ”) Robert D. Weisel,

14   denying their applications for asylum, withholding of

15   removal, and relief under the Convention Against Torture

16   (“CAT”).     In re Surendra Raj Dhakal, Shila Pahari, Sujan

17   Dhakai, Nos. A089 915 705/706/707 (B.I.A. July 27, 2012),

18   aff’g Nos. A089 915 705/706/707 (Immig. Ct. N.Y. City Oct.

19   28, 2010).     We assume the parties’ familiarity with the

20   underlying facts and procedural history in this case.

21       Under the circumstances of this case, we have

22   considered both the IJ’s and the BIA’s opinions “for the

23   sake of completeness.”     Zaman v. Mukasey, 514 F.3d 233, 247

24   (2d Cir. 2008).     The applicable standards of review are

25   well-established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

26   v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

                                     2
 1   I.       Past Persecution

 2        The agency applied an overly stringent legal standard

 3   in finding that Dhakal did not establish that his political

 4   opinion was “one central reason” that he was abducted,

 5   beaten, detained, threatened, and extorted by Maoist

 6   insurgents.   The agency acknowledged that Dhakal was an

 7   active member of the Nepali Congress Party and that the

 8   Maoists referenced Dhakal’s party membership during and

 9   after his abduction, but found that the Maoists’ primary

10   reason for targeting him was to obtain medical expertise and

11   money from him.   In doing so, the agency emphasized that the

12   Maoists did not try to “prevent [Dhakal]...from continuing

13   his activities” with the Nepali Congress Party, nor force

14   him to quit the party.   First, these findings appear to

15   misconstrue the record, which indicates that on various

16   occasions, the Maoists told Dhakal to quit the party or

17   referenced his failure to do so, and fail to acknowledge

18   that Dhakal’s abduction and detention amounted to his

19   forcible conscription into the Maoist cause; Dhakal could

20   hardly continue his prior political activities while

21   detained and forced to work at a Maoist militia camp.

22



                                   3
 1       Moreover, an asylum claim based on political opinion

 2   does not require that the persecutor specifically attempt to

 3   stop the applicant’s political activities, such as forcing

 4   Dhakal to resign from the Nepali Congress Party. Asylum law

 5   merely requires that the persecutor inflict harm rising to

 6   the level of persecution, with one central reason for the

 7   harm being the applicant’s actual or imputed political

 8   beliefs.   INS v. Elias-Zacarias, 502 U.S. 478, 482-83 (1992)

 9   superseded by statute; see also Yueqing Zhang v. Gonzales,

10   426 F.3d 540, 548 (2d Cir. 2005). Furthermore, although the

11   Maoists’ repeated references to Dhakal’s party membership

12   are integral to his claim, they are not the stopping point

13   in assessing his political opinion, as we have repeatedly

14   held that simply refusing to join a group or capitulate to

15   its demands, based on actual or perceived ideological

16   opposition to the group, may establish a claim based on

17   actual or imputed political opinion.   See, e.g., Yueqing

18   Zhang, 426 F.3d at 546-47; Delgado v. Mukasey, 508 F.3d 702,

19   707 (2d Cir. 2007); Rodas Castro v. Holder, 597 F.3d 93,

20   103-04 (2d Cir. 2010); Gomez-Beleno v. Holder, 644 F.3d 139,

21   143-44 (2d Cir. 2011).

22


                                   4
 1         The parties do not dispute that the Maoists not only

 2   mentioned Dhakal’s party membership on several occasions,

 3   but they also seriously beat and detained him when he

 4   initially refused to provide medical care to their injured

 5   militia members, and later accused him of betraying their

 6   cause and ordered him to pay money for his failure to

 7   support them, or else be killed.   In light of this evidence

 8   and the relevant case law, we remand for the agency to make

 9   new findings as to whether, considered cumulatively, the

10   Maoists’ actions constituted past persecution on account of

11   Dhakal’s political opinion – either his party membership or

12   his actual or imputed ideological opposition to the Maoist

13   cause.   In doing so, the agency should revisit whether

14   Dhakal met the “one central reason” standard in light of our

15   precedents governing the nexus requirement. Aliyev v.

16   Mukasey, 549 F.3d 111, 117-18 (2d Cir. 2008); 8 U.S.C. §

17   1158(b)(1)(B)(i).

18   II.       Well-Founded Fear of Future Persecution

19         The agency further erred in failing to make any finding

20   as to whether, even if Dhakal did not establish past

21   persecution on account of his political opinion, he had a

22   well-founded fear of future persecution on that basis, given

23   his refusal to comply with the Maoists’ demands.    See
                                   5
 1   Delgado, 508 F.3d at 707.    We have previously noted that

 2   even where an applicant was targeted in the past for non-

 3   political reasons, his refusal to support the group that

 4   targeted him or her may give rise to a well-founded fear of

 5   future persecution on account of an actual or imputed

 6   political opinion.    See id. at 706-07; see also Koudriachova

 7   v. Gonzales, 490 F.3d 255, 264 (2d Cir. 2007).    The agency

 8   erred in dismissing Delgado as irrelevant simply because it

 9   involves a claim filed before the effective date of the REAL

10   ID Act of 2005; Delgado is not a “mixed motive” case

11   implicating the REAL ID Act’s addition of the “one central

12   reason” standard discussed above, and thus, it remains good

13   law in reference to Dhakal’s arguments regarding his fear of

14   future persecution.    As a result, we remand for the agency

15   to make findings as to whether, even if it determines that

16   Dhakal did not establish past persecution under the asylum

17   statute, he established a well-founded fear of future

18   persecution on account of his actual or imputed political

19   opinion.    See Koudriachova, 490 F.3d at 264.

20   III.       Convention Against Torture

21          Because Petitioners do not meaningfully identify errors

22   in the agency’s denial of protection under the CAT, we deny

23   the petition as to this claim.     See Yueqing Zhang, 426 F.3d

24   at 545 n.7.
                                    6
 1       For the foregoing reasons, the petition for review is

 2   GRANTED in part and DENIED in part, and the case is REMANDED

 3   for further proceedings consistent with this order.   As we

 4   have completed our review, any stay of removal that the

 5   Court previously granted in this petition is VACATED, and

 6   any pending motion for a stay of removal in this petition is

 7   DISMISSED as moot.   Any pending request for oral argument in

 8   this petition is DENIED in accordance with Federal Rule of

 9   Appellate Procedure 34(a)(2) and Second Circuit Local Rule

10   34.1(b).

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




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