18-3529 Mahat v. Garland BIA Nelson, IJ A208 160 295 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 14th day of December, two thousand twenty-one. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 SUSAN L. CARNEY, 9 JOSEPH F. BIANCO, 10 Circuit Judges. 11 _____________________________________ 12 13 BASANTA MAHAT, 14 Petitioner, 15 16 v. 18-3529 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 1 21 _____________________________________ 22 23 FOR PETITIONER: Stuart Altman, Esq., New York, NY. 24 25 FOR RESPONDENT: Erica B. Miles, Senior Litigation 26 Counsel; Craig A. Newell, Jr.,

1The Clerk of Court is respectfully directed to amend the caption as set forth above. 1 Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC.

5 UPON DUE CONSIDERATION of this petition for review of a

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

7 ORDERED, ADJUDGED, AND DECREED that the petition for review

8 is GRANTED.

9 Petitioner Basanta Mahat, a native and citizen of Nepal,

10 seeks review of a November 5, 2018 decision of the BIA

11 affirming an October 31, 2017 decision of an Immigration Judge

12 (“IJ”) denying Mahat’s application for asylum, withholding of

13 removal, and relief under the Convention Against Torture

14 (“CAT”). In re Basanta Mahat, No. A 208 160 295 (B.I.A. Nov.

15 5, 2018), aff’g No. A 208 160 295 (Immig. Ct. N.Y. City Oct.

16 31, 2017). We assume the parties’ familiarity with the

17 underlying facts and procedural history to which we refer

18 only as necessary to explain our decision to grant the

19 petition.

20 We have reviewed the IJ’s decision as supplemented and

21 modified by the BIA. See Yan Chen v. Gonzales,

,

22 271 (2d Cir. 2005); Xue Hong Yang v. U.S. Dep’t of Justice,

23

(2d Cir. 2005). Accordingly, as did the

2 1 BIA, we assume Mahat’s credibility and address only the

2 agency’s conclusion that Mahat could reasonably relocate

3 within Nepal to avoid future persecution. See 8 C.F.R.

4 § 1208.13(b)(1)(i)(B)(an asylum application may be denied

5 where applicant may reasonably relocate to another part of

6 home country); Yan Chen, 417 F.3d at 271–72.

7 On review, we remand for clarification or reconsideration

8 of this relocation finding. We first conclude that Mahat

9 sufficiently exhausted his challenge to this finding. See

10 Ruiz-Martinez v. Mukasey,

, 112 n.7 (2d Cir. 2008)

11 (deeming as exhausted the issues addressed in BIA decisions);

12 Steevenez v. Gonzales,

(2d Cir. 2007)

13 (allowing for review of a “specific, subsidiary legal

14 argument or an extension of an argument . . . raised directly

15 before the BIA.” (internal quotation marks and brackets

16 omitted)).

17 The IJ’s analysis was predicated on the determination

18 that Mahat had not suffered past persecution. Under 8 C.F.R.

19 § 1208.13(b)(3), if an “applicant has not established past

20 persecution, the applicant shall bear the burden of

21 establishing that it would not be reasonable for him or her

3 1 to relocate.” The IJ found that, in light of Mahat’s lack

2 of credibility and failure to corroborate his account, Mahat

3 had not demonstrated past persecution and thus he bore the

4 burden of showing that it was unreasonable for him to relocate

5 within Nepal.

6 The IJ then listed, but did not analyze, the factors for

7 determining reasonableness of relocation as set forth in 8

(b)(3), which include: “whether the applicant

9 would face other serious harm in the place of suggested

10 relocation; any ongoing civil strife within the country;

11 administrative, economic, or judicial infrastructure;

12 geographical limitations; and social and cultural

13 constraints, such as age, gender, health, and social and

14 familial ties.” While concluding that the country conditions

15 evidence showed that Mahat could safely relocate, the IJ did

16 not discuss specific evidence or make specific findings on

17 this issue. Nor did the IJ’s decision make any mention of

18 record evidence of political violence throughout Nepal. See

19 Passi v. Mukasey,

, 102–03 (2d Cir. 2008)

20 (requiring agency to consider country conditions evidence

4 1 before finding presumption of persecution rebutted by ability

2 to relocate).

3 On appeal, the BIA assumed Mahat’s credibility . Having

4 done so, it was bound to assume that Mahat was entitled to a

5 presumption of future persecution, in light of his detailed

6 testimony about past persecution that the BIA assumed was

7 credible. See

(b)(1) (“An applicant who

8 has been found to have established such past persecution shall

9 also be presumed to have a well-founded fear of

10 persecution[.]”).

11 Yet, despite these assumptions, the BIA did not

12 adequately explain whether it had shifted the burden as

13 required to the Government to rebut the presumption of future

14 persecution and show by “a preponderance of the evidence”

15 that Mahat could safely and reasonably relocate. See 8

(b)(1)(ii). As to the evidence regarding

17 safe relocation, the BIA did not address any country

18 conditions evidence or make findings regarding conditions in

19 Kathmandu, to where it concluded Mahat could relocate. See

20 Poradisova v. Gonzales,

(2d Cir. 2005) (“[W]e

21 require a certain minimum level of analysis from the IJ and

5 1 BIA opinions denying asylum, and indeed must require such if

2 judicial review is to be meaningful.”). Applying Poradisova,

3 we conclude that the BIA’s decision is inadequate.

4 For the foregoing reasons, the petition for review is

5 GRANTED, the BIA’s decision is VACATED, and the case is

6 REMANDED for further proceedings.

7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court

6