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,

(2d Cir. 2005);

21 Yan Chen v. Gonzales,

(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,

(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.

(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.”

(b)(1)(i), (ii); see also

23 Cao He Lin v. U.S. Dep’t of Justice,

(2d 3 1 Cir. 2005). The Government must prove the fundamental change

2 by a preponderance of the evidence. Lecaj,

-

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,

, 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,

(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,

, 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

; Passi,

; 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,

-

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,

(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,

. 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,

.

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,

-

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

7