Sherpa v. Gonzales
Sherpa v. Gonzales
Opinion of the Court
MEMORANDUM
Dorjee Lama Sherpa, and his wife Nyimi Lama Sherpa, are natives and citizens of Nepal. Petitioners seek review of a Board of Immigration Appeals (“BIA”) decision affirming the ruling of an Immigration Judge (“U”) denying their application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252.
Where, as here, the BIA adopts the IJ’s decision and also adds its own reasons, we review both decisions. See Zhou v. Gonzales, 437 F.3d 860, 864 (9th Cir. 2006). We review for substantial evidence, Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir. 2006), and we grant the petition in part and remand, and deny in part.
The IJ and BIA found that Sherpa’s experiences did not rise to the level of persecution and that the attack he suffered was not on account of a protected ground. Neither of these findings is supported by substantial evidence. The attack clearly rises to the level of persecution. See Duarte de Guinac v. INS, 179 F.3d 1156, 1161 (9th Cir. 1999) (explaining that this court has consistently found persecution where applicant was physically harmed). Furthermore, because the Maoist rebels clearly targeted Sherpa due to his criticism of them, substantial evidence compels the conclusion that Sherpa was persecuted on account of his political opinion. See Njuguna v. Ashcroft, 374 F.3d 765, 770-71 (9th Cir. 2004).
Once an applicant demonstrates that he has suffered from past persecution, a rebuttable presumption of a well-founded fear of future persecution arises, and the burden shifts to the government to prove
Substantial evidence supports the denial of Sherpa’s CAT claim because he did not establish that it was more likely than not that he would be tortured if he returned to Nepal. See Malhi v. INS, 336 F.3d 989, 993 (9th Cir. 2003).
PETITION GRANTED in part and REMANDED; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Reference
- Full Case Name
- Dorjee Lama SHERPA Nyimi Lama Sherpa v. Alberto R. GONZALES, Attorney General
- Status
- Published