87 F.4th 52
1st Cir.2023Background
- Singh entered the U.S. on a B-1 visa, overstayed, conceded removability, and applied for asylum, withholding of removal, and CAT protection; IJ found her credible but denied asylum/withholding; BIA affirmed and Singh petitioned for review.
- In October 2007 Maoist attackers invaded Singh’s home: in-laws tied, husband beaten (broken hand), Singh knocked unconscious; a neighbor alerted the army, which arrived and the Maoists fled.
- About a week later Singh’s son was kidnapped for ~2 weeks; release was negotiated after the family promised not to oppose Maoists and to remain in the village; the family subsequently moved away and Singh later came to the U.S.
- The IJ took judicial notice of the State Dept. 2017 Country Report (with Singh’s consent); Singh later submitted an excerpt of the 2007 State Dept. Report on appeal to the BIA, which the BIA considered.
- The IJ and BIA treated the attackers as private actors and concluded Singh failed to prove the Nepali government was unwilling or unable to protect her; the BIA affirmed denial of asylum and withholding of removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Singh proved government was unwilling or unable to control Maoist private actors (2007 incidents) | Singh: Substantial evidence lacking; 2007 State Dept. Report shows Maoist influence, police reluctance, and impunity; government nexus established | Govt/BIA: Army promptly responded and Maoists fled; Singh didn’t report kidnapping; BIA considered 2007 excerpt and found it not dispositive; some arguments unexhausted | Held: Denied — substantial evidence supports BIA that government was willing and able to protect; claimant failed to meet nexus burden |
| Whether IJ erred by not taking judicial notice of 2007 State Dept. Report / relying on 2017 Report | Singh: IJ should have taken judicial notice of 2007 Report and used it for past-persecution analysis | Govt: Singh did not raise this before BIA (exhaustion); IJ did take notice of 2017 with consent; BIA permissibly considered 2007 excerpt on appeal | Held: Issue unexhausted before BIA so not considered on review; BIA permissibly considered 2007 excerpt |
| Whether the October 2007 incidents rose to the level of persecution | Singh: Attack and kidnapping constitute past persecution | Govt/IJ: IJ found incidents were isolated and did not rise to persecution; BIA did not adopt that alternative ground | Held: Not before this court because BIA did not address IJ’s alternative ground; claim deemed waived |
| Whether withholding of removal is warranted | Singh: Same facts support withholding under higher standard | Govt: Withholding requires clear-probability showing; Singh fails for same reasons as asylum | Held: Denied for the same reasons the asylum claim fails |
Key Cases Cited
- Rosales Justo v. Sessions, 895 F.3d 154 (1st Cir. 2018) (explains "unable or unwilling" government nexus requirement for private-actor persecution)
- Ortiz-Araniba v. Keisler, 505 F.3d 39 (1st Cir. 2007) (past persecution/well-founded fear framework and government nexus analysis)
- Murillo Morocho v. Garland, 80 F.4th 61 (1st Cir. 2023) (substantial-evidence review of BIA factual findings)
- Morales-Morales v. Sessions, 857 F.3d 130 (1st Cir. 2017) (presumption of future persecution from established past persecution)
- Harutyunyan v. Gonzales, 421 F.3d 64 (1st Cir. 2005) (local authorities’ prompt response is a telling datum of government willingness)
- Khattak v. Holder, 704 F.3d 197 (1st Cir. 2013) (prior fruitful government protection efforts can show ability to protect)