Khagendra Sharma v. Eric Holder, Jr.
2013 U.S. App. LEXIS 18184
| 5th Cir. | 2013Background
- Sharma, a Nepalese citizen and former member/supporter of the Nepali Congress/NSU, was abducted by Maoists in 2004 (held 5–7 days then >1 month), tortured, deprived of food, and pressured to support the Maoists; he later escaped and relocated within Nepal.
- He was abducted again in 2009 for coercive recruitment as a volleyball coach; he then fled abroad and entered the U.S. without inspection in 2010.
- Sharma filed for asylum, withholding of removal, and CAT protection, asserting persecution based on political opinion and NSU membership; IJ found him credible but denied relief for lack of nexus to protected ground.
- The BIA affirmed, reasoning the record lacked direct evidence the Maoists targeted Sharma because of his political opinion and treated the incidents as coercive recruitment rather than politically motivated persecution.
- The Fifth Circuit held the IJ/BIA improperly required direct proof of persecutors’ motive and failed to consider circumstantial evidence (crediting Sharma’s testimony that abuse increased when he stated his NSU support), vacated in part, and remanded for further proceedings including consideration of future fear.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sharma showed nexus between persecution and political opinion | Sharma: credible testimony and circumstantial evidence show Maoists escalated abuse when he stated NSU support, establishing nexus | DHS/BIA: record lacks any mention of Sharma’s politics; harms were coercive recruitment, not persecution for political opinion | Court: BIA/IJ erred by demanding direct proof of motive; circumstantial evidence sufficed to require further consideration and remand |
| Whether coercive recruitment alone establishes persecution on account of political opinion | Sharma: his case involved more than recruitment — torture and prolonged detention tied to his expressed opposition | DHS: actions were recruitment-driven, not political persecution | Court: coercive recruitment alone is insufficient, but here record shows additional politically motivated abuse that merits review |
| Whether BIA assessed well‑founded fear of future persecution | Sharma: past persecution presumes future fear; BIA should determine objectively reasonable fear if deported | DHS: decision focused on nexus and denied past persecution, so future fear not reached | Court: BIA did not decide future-fear issue; must consider it on remand if past persecution is established |
| Standard of proof for motive (direct vs. circumstantial) | Sharma: Elias‑Zacarias allows circumstantial evidence; not required to produce direct admission | DHS/BIA: emphasized lack of direct references to politics by persecutors | Court: Confirmed petitioner need only provide some evidence, direct or circumstantial; BIA improperly required direct evidence |
Key Cases Cited
- INS v. Elias‑Zacarias, 502 U.S. 478 (Sup. Ct.) (petitioner need not provide direct proof of persecutors’ motives; some direct or circumstantial evidence suffices)
- Ontunez‑Tursios v. Ashcroft, 303 F.3d 341 (5th Cir. 2002) (nexus requirement and use of circumstantial evidence to establish persecutors’ knowledge/motive)
- Tamara‑Gomez v. Gonzales, 447 F.3d 343 (5th Cir. 2006) (burden to establish nexus between persecution and statutory ground)
- Shaikh v. Holder, 588 F.3d 861 (5th Cir. 2009) (protected ground must be at least one central reason for harm)
- Orellana‑Monson v. Holder, 685 F.3d 511 (5th Cir. 2012) (objective standard for well‑founded fear of future persecution)