BASNET v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-02-17No. No. 18-71862

Summary · law.co

Holding. The petition for review was denied, and the Board of Immigration Appeals' decision dismissing Basnet's asylum and withholding of removal claims was upheld.

Anjana Basnet, a Nepalese citizen, sought asylum and withholding of removal from the United States, claiming persecution by Maoist groups. An Immigration Judge denied her claims, finding her testimony not credible based on several factors: her admission that she was unafraid to return to Nepal in 2009, inconsistencies in her account of a 2009 attack, her demeanor during testimony, and insufficient documentary evidence. The Board of Immigration Appeals upheld this decision.

On judicial review, the court upheld the immigration authorities' conclusions. The court found substantial evidence supported the credibility determination, noting that Basnet's voluntary return to Nepal contradicted her claims of persecution and that specific details of her alleged attack were implausible. Even assuming Basnet had been credible, the court found she failed to establish that any attacks against her were motivated by a protected ground—such as political opinion, family relationship, or gender. Instead, the evidence suggested the attacks stemmed from theft or random violence. Additionally, Basnet's fear of future persecution was undermined by the fact that her family members continued living safely in Nepal.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Credibility of asylum applicant's testimony regarding past persecution
Whether attacks on applicant were motivated by protected ground or random violence
Sufficiency of evidence to establish well-founded fear of future persecution
Procedural bar for claims not raised before immigration judge

Procedural posture

Basnet petitioned for review of a Board of Immigration Appeals decision that affirmed an Immigration Judge's denial of her asylum and withholding of removal claims.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Anjana Basnet, a citizen of Nepal, petitions for review of a Board of Immigration Appeals (BIA) decision dismissing her appeal of an Immigration Judge (IJ) order denying Basnets claims for asylum and withholding of removal. We review for substantial evidence and may grant relief only if the record compels a contrary conclusion. Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). We have jurisdiction under 8 U.S.C. § 1252 and deny the petition.

1. Substantial evidence supports the IJs determination that Basnet did not testify credibly. See Shrestha v. Holder, 590 F.3d 1034, 1040 (9th Cir. 2010); 8 U.S.C. § 1158(b)(1)(B)(iii). Basnet admitted she was not afraid to return to Nepal in May 2009. This admission undercuts Basnets account of persecution prior to that time and supports the IJs determination that Basnets claim was limited to a fourth attack in June 2009. See Loho v. Mukasey, 531 F.3d 1016, 1018 (9th Cir. 2008) (“[A] petitioners voluntary return may be considered in rendering an adverse credibility finding.”). The IJ then went on to identify specific, cogent reasons for discrediting Basnets account of the June 2009 attack, namely, her inability to explain how the Maoists knew she was visiting from the United States and the implausibility of Basnets claim that she “was not aware” she could report the attack to police.

The IJ also based the adverse credibility determination on Basnets “rehearsed or rote” demeanor. This description “specifically point[ed] out the noncredible aspects of [Basnets] demeanor” and therefore receives deference. Ling Huang v. Holder, 744 F.3d 1149, 1154 (9th Cir. 2014). Nor was Basnet entitled to “an additional opportunity to bolster her case by submitting further evidence.” Yali Wang, 861 F.3d at 1009. The IJ did not rely on Basnets documentary submissions as part of the adverse credibility determination, but rather found that the documents were insufficient to independently sustain her claims. See id.

2. Substantial evidence also supports the BIAs further determination that, even if she were found credible, Basnet failed to show past persecution or a well-founded fear of persecution on account of a protected ground. See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(C); Barajas-Romero v. Lynch, 846 F.3d 351, 358 (9th Cir. 2017). The IJ and BIA reasonably concluded that the attacks against Basnet bore no nexus to her claimed anti-Maoist political opinions, and were instead motivated by “theft or random violence,” which is insufficient. Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010). Substantial evidence supports that determination, especially in view of Basnets limited political involvement.

Substantial evidence also supports the BIAs determination that Basnet had not shown past persecution based on her family relationships. See Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011). Though Basnet claimed that her husband was previously attacked because she was on the Maoists “list” of enemies, she could not explain why the Maoists were interested in her. Basnet now argues that she faced persecution on account of her gender, but Basnet failed to raise this claim before the IJ, and, like the BIA, we therefore do not consider it. See Honcharov v. Barr, 924 F.3d 1293, 1296–97 (9th Cir. 2019).

Finally, the IJ and BIA reasonably concluded that Basnets claims of future persecution were conclusory and undermined by the fact that her family members continue to reside safely in Nepal. See Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir. 2010) (petitioners fear of future persecution was not objectively reasonable where family members continued to live in home country unharmed).

PETITION DENIED.

FOOTNOTES

. Basnet originally also sought relief under the Convention Against Torture (CAT) but abandoned that claim before the BIA. We thus do not consider it here.