                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 17 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


TANKA BAHADUR RAYACHHETRY,                       No. 05-75603

             Petitioner,                         Agency No. A077-852-091

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,

             Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                      Argued and Submitted March 10, 2010
                           San Francisco, California

Before: HUG, REINHARDT and BYBEE, Circuit Judges.



       An Immigration Judge (IJ) denied Tanka Bahadur Rayachhetry’s application

for asylum. The BIA affirmed on the ground that Rayachhetry had failed to

establish that the persecution he feared upon return to Nepal was on account of his

political opinion. Because that finding is not supported by substantial evidence,


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
we grant Rayachhetry’s petition for review and conclude that he is statutorily

eligible for asylum. We remand so that the BIA may exercise its discretion to

decide whether to grant asylum.



                                           I.

      The evidence that Rayachhetry produced at his immigration hearing compels

the conclusion that the Maoist guerrillas who threatened his life were motivated, at

least in part, by his political opinion.1 See Borja v. INS, 175 F.3d 732, 736 (9th

Cir. 1999) (en banc). Although the Maoists were initially interested in him solely

for his money, once they learned of his opposition to Maoism through an article

that he published in a local paper, they “made clear to [him] that his . . . political

opinion contributed to their hatred of him and provided them with additional

motive for their actions.” Gafoor v. INS, 231 F.3d 645, 651 (9th Cir. 2000); see

also Sinha v. Holder, 564 F.3d 1015, 1021 (9th Cir. 2009). Indeed, they sent him a

letter telling him to stop publishing articles “against . . . the party,” informing him

that his name was on the “red list,” that he faced “action any time anywhere,” and

      1
        The “at least in part” rule has been superseded by the REAL ID Act, Pub. L.
No. 109-13, div. B, § 101(h)(2), 119 Stat. 231, 305 (2005). See Parussimova v.
Mukasey, 533 F.3d 1128, 1133-34 (9th Cir. 2008). However, because Rayachhetry
filed his asylum application before May 11, 2005, the pre-REAL ID standard
governs. See Sinha v. Holder, 564 F.3d 1015, 1021 n.3 (9th Cir. 2009).

                                      Page 2 of 4
that he should give them money “soon” to save his life. While they had demanded

money from his family before, it was not until after he published the article that

they threatened his life. See Gonzales-Neyra v. INS, 122 F.3d 1293, 1296 (9th Cir.

1997) (holding that evidence that the petitioner “had a political opinion, that he

expressed it to his persecutors, and that they threatened him only after he expressed

his opinion” compelled the conclusion that the threats were connected to his

political opinion and not only to his failure to provide money in response to

demands from the persecutors that pre-dated his expression of his political

opinion). Moreover, the background evidence confirms that the Maoist group that

threatened him is known for abducting and killing people on the basis of their

public expressions of political opposition. See Sinha, 564 F.3d at 1021; Gafoor,

231 F.3d at 647-49.



                                          II.

      The IJ based his denial of asylum in part on an adverse credibility finding.

On appeal, the BIA affirmed a portion of the IJ’s findings, but remained silent as to

the credibility issue. “When the BIA’s decision is silent on the issue of credibility,

despite an IJ’s explicit adverse credibility finding, we may presume that the BIA

found the petitioner to be credible, and we so presume here.” Krotova v. Gonzales,


                                     Page 3 of 4
416 F.3d 1080, 1084 (9th Cir. 2005) (internal citations removed). We therefore

reject the government’s argument that the remand should include a determination

by the BIA as to the issue of credibility. We reiterate the recommendation that we

have made to the BIA before on several occasions, that it address issues at the first

opportunity so that neither it nor we may be required to consider the same case

numerous times. See Briones v. INS, 175 F.3d 727, 730 n.1 (9th Cir. 1999). In this

case, we conclude that the credibility issue has not been preserved.



GRANTED and REMANDED for EXERCISE of DISCRETION.




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