Dahal v. HolderDahal v. Holder
Tony West, Assistant Attorney General, with whom Carl H. McIntyre and Justin R. Markel were on brief, for appellee.
Before BOUDIN, Circuit Judge, SOUTER, Associate Justice,* and THOMPSON, Circuit Judge.
SOUTER, Associate Justice.
The Board of Immigration Appeals denied an alien‘s motion to reopen and reconsider his application for asylum and comparable relief. We find no abuse of discretion, see INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992), and affirm.
Kamal Dahal is a native and citizen of Nepal, admitted to the United States in April 2006 on an H-2B visa, as a nonimmigrant, temporary, non-agricultural worker. His status was later changed to a B-2 visitor for pleasure, and he was authorized to remain in the United States until May 15, 2007. About a month before that deadline, Dahal applied for asylum, see
An alien is eligible for asylum if he is a “refugee,” meaning a person “unable or unwilling to return to” his home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
Dahal contended that he could not safely return to Nepal, because he feared that members of a powerful Maoist insurgency in that country would persecute him at least partly on the basis of his membership in the Nepali Congress Party, which he has served in humanitarian activities and assisted in local elections. The insurgents allegedly extorted money from him at his business, insisted that he quit the Congress Party, invaded his house, took money from his family, and brutally beat him. After continued harassment, Dahal says, he sent his wife and son to live with her parents in a different village, while he stayed with a friend in another village before traveling to the United States.
The immigration judge noted “multiple inconsistencies” between Dahal‘s accounts of things at the hearing and the allegations in his petition, but nonetheless made no adverse credibility finding, and even noted that Dahal generally appeared to have testified in earnest. Yet he did not provide sufficient evidence to “overcome the inconsistencies and omissions,” which left the judge with enough doubt about the reliability of his testimony that she ultimately held that Dahal‘s overall claim for relief “fails for lack of proof.”
Dahal filed a notice of appeal with the Board of Immigration Appeals in January 2009, resulting in affirmance of the immigration judge‘s decision in October 2010. A month later, he presented the Board with a motion to reopen his case, offering new documentary evidence supporting his claims of oppression at the hands of the Maoists, and claiming it was error for the judge to deny his petition for lack of documentation while at the same time finding him credible. The Board denied the motion to reopen to submit new evidence, construed Dahal‘s latter contention as a motion to reconsider, and denied it as well.
Although there was leeway for judgment in ruling on the motion, we think it was not an abuse of discretion to deny it. To his motion Dahal attached several exhibits that supported his claims, including a report from an emergency medical clinic, receipts for donations to the Nepali Congress Party, a police report mentioning Maoists’ threats aimed at Dahal and extortion from him, his birth certificate, and bank statements for himself and his business. He subsequently added affidavits from his wife and a former neighbor, as well as a letter from the Congress Party. The Board nevertheless denied his motion to reopen for failure to establish that any of these documents was unobtainable at an earlier stage of the process, see
In fact, Dahal‘s position is even weaker than that. His lawyer was presumably aware that the immigration judge would expect to review documentary evidence at the initial hearing, see
As to what the Board treated as Dahal‘s request for reconsideration, he argues that the immigration judge‘s finding that he was a credible witness should have obviated any need for documentation. But more than credibility in a strict sense is or may be at stake. An immigration judge “may” grant asylum to an alien on the basis of his testimony alone, “but only if the applicant [not only] satisfies the trier of fact that the applicant‘s testimony is credible, [but also] is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.”
Affirmed.