Nishchal Bhattarai v. Loretta E. Lynch
2016 U.S. App. LEXIS 16006
| 9th Cir. | 2016Background
- Bhattarai, a Nepali NCP/NSU activist, alleges three Maoist attacks (2002, 2008, 2010); claimed severe 2010 beating, detention, and medical treatment, then traveled to U.S. in 2010 and applied for asylum, withholding, and CAT protection in Feb 2011.
- Submitted contemporaneous doctor’s notes, a police investigator letter, organizational support letters (UNESCO‑YN, NSU, NCP), a declaration, and country‑conditions material; brother lived in U.S. and had been in Nepal during some incidents but did not testify.
- IJ found Bhattarai not credible, citing alleged inconsistencies between testimony and documents and the brother’s absence; evidentiary record was closed at hearing; IJ denied relief; BIA affirmed and refused to remand for new corroborating letters and brother’s passport evidence.
- Bhattarai petitioned for review in the Ninth Circuit challenging the adverse credibility finding and the BIA’s refusal to consider newly proffered corroboration.
- Ninth Circuit held the IJ/BIA’s asserted inconsistencies were unsupported or amounted to lack of corroboration, and that Ren requires notice and an opportunity to supply corroboration before denying asylum on that basis; court granted petition and remanded.
Issues
| Issue | Bhattarai’s Argument | Lynch/Gov’t Argument | Held |
|---|---|---|---|
| Adverse‑credibility based on internal inconsistencies and conflict with documents | Bhattarai: testimony was detailed and consistent with declaration and records; alleged inconsistencies are mischaracterizations or trivial | Gov’t: documentary omissions and minor discrepancies undercut credibility | Court: IJ/BIA’s inconsistency findings lack substantial evidence; many were mischaracterizations or unaddressed explanations — adverse‑credibility not supported |
| Requirement to provide corroboration and notice (Ren rule) | Bhattarai: IJ did not give notice/opportunity to produce or explain missing corroboration (e.g., brother’s testimony, detailed organization letters) | Gov’t: questions at hearing should have put Bhattarai on notice; evidence allegedly available earlier so BIA could deny remand | Court: Ren requires explicit notice and opportunity; IJ closed record and denied relief without giving opportunity — error; remand required |
| Failure to admit or consider after‑acquired corroboration (new letters, passport) | Bhattarai: obtained detailed organizational letters after IJ decision; sought remand to supplement record | Gov’t/BIA: evidence was available earlier and need not be considered; denied remand | Court: BIA abused discretion by refusing to allow supplementation when IJ never gave prior notice that such corroboration was required; remand to allow compliance with Ren |
| CAT claim adjudication given credibility ruling | Bhattarai: CAT should be evaluated on all evidence, including country conditions, independent of asylum adverse‑credibility | Gov’t: adverse credibility warranted denial of CAT as well | Court: CAT denial tied to flawed credibility finding and must be reconsidered on remand; CAT requires separate consideration of country conditions evidence |
Key Cases Cited
- Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011) (IJ must notify applicant and allow opportunity to produce or explain corroboration before denying relief for lack of corroboration)
- Lai v. Holder, 773 F.3d 966 (9th Cir. 2014) (applies Ren; remand required where IJ/BIA failed to give notice/opportunity regarding corroboration)
- Zhi v. Holder, 751 F.3d 1088 (9th Cir. 2014) (same; distinguishes corroboration from credibility reasons)
- Shrestha v. Holder, 590 F.3d 1034 (9th Cir. 2010) (trivial inconsistencies cannot support adverse credibility; evaluate inconsistencies in light of all record evidence)
- Kamalthas v. INS, 251 F.3d 1279 (9th Cir. 2001) (CAT claims require consideration of all evidence relevant to future torture, including country conditions)