A Nepalese refugee who fled his homeland to escape Maoist oppression has another chance to remain in the United States after a federal appeals court said an immigration judge held him to an “incorrect and overly stringent” standard in assessing his bid for asylum.
In a unanimous opinion issued Tuesday, the U.S. Court of Appeals for the Second Circuit said the immigration judge undermined the petitioner’s “mixed motive asylum claim” by forcing him to prove that political opinion was “the central reason” rather than “at least one central reason” for his persecution.
Circuit Judge Rosemary Pooler (See Profile) said Immigration Judge Michael W. Straus “made an illogical leap that vitiated the possibility of a mixed motive claim.” The court remanded for reconsideration.
Acharya v. Holder, 11-4362-ag, centers on Prakash Acharya, a 34-year-old man who entered the country legally, stayed beyond his period of authorization and now seeks to remain in the United States as a refugee from Maoist persecution.
Acharya asserted two separate grounds in his asylum bid: his activity with the Nepali Congress political party, which is the nemesis of the Nepali Maoists, and his employment as a member of the Nepali Police Force, which monitored the activities of the Maoists.
Over the years, Acharya was kidnapped and beaten by individuals who identified themselves as Maoist terrorists. His wife and father were both abducted, and the Maoists issued a dispatch that seemingly imposed a death sentence on him, records show.
In 2008, Acharya was dispatched to Haiti, where he obtained a non-immigrant visa for the United States. He came to this country legally in September 2008 and was authorized to remain through March 12, 2009. In September 2009, several months after his authorization expired, Acharya applied for asylum under the Immigration and Nationality Act and protection under the Convention Against Terror.
After a hearing, Straus held that Acharya was ineligible for relief.
Straus said Acharya had not established that political opinion was “the central reason” for his persecution. He also said that the Maoists “were naturally upset” over Acharya’s police activities, and therefore the retribution was based on his employment rather than his political beliefs. The judge found no evidence that government authorities would torture Acharya if he was returned to Nepal.
The Board of Immigration Appeals upheld Strauss (see In re Acharya, No. A 087 645 737, Sept. 26, 2011). It agreed that Acharya “ha[d] not shown that one central issue that he was targeted” for was his position with the Nepali Congress. Additionally, the board found that “the facts do not demonstrate that [Acharya] would more likely than not be tortured in Nepal.”
On appeal, the Second Circuit observed that Acharya brought two plausible grounds to establish persecution: his work as a police officer, which brought him into conflict with the Nepali Maoists, and his affiliation with the Nepali Congress political organization.
Pooler said Stauss, in imposing on Acharya the burden to show that political opinion was “the central” rather than “at least one central” grounds for persecution, “set up an illogical rubric for analyzing motivation that presupposed that multiple motives for persecution must be analyzed in competition with one another, rather than in concert.”
The Second Circuit remanded to the Board of Immigration Appeals because of Strauss’ “numerous errors” about the reasons for Acharya’s persecution. But the circuit also noted concern over the judge’s and the board’s findings with regard to Acharya’s police work.
Pooler, joined by Chief Judge Robert Katzmann (See Profile) and Circuit Judge Dennis Jacobs (See Profile), said that the common dangers faced by police cannot form the foundation for an asylum claim. But the court said the police work must be viewed in context and on an individual basis.
“The reasons that make it error to consider political persecution in opposition to persecution on the ground of being a policeman also make it error to fail to give consideration to the political dimension of Acharya’s police work itself,” Pooler wrote. “Greater nuance in the consideration of Acharya’s particular political context may require, on remand, that the [Board of Immigration Appeals] take account of the depth of this political component of Acharya’s police work.”
Gary Yerman of Yerman & Associates in Manhattan, who argued on behalf of Acharya on Sept. 11, 2013, said his client is “beyond thrilled” with the result.
“I think the importance of this case is that asylum may be granted when there is more than one motive for mistreatment, as long as one central reason for the mistreatment is on account of a protected ground,” Yerman said. “There can be mixed motives for persecution.”
The government was represented by Julie Saltman of the U.S. Department of Justice in Washington. The department did not respond to an inquiry for comment.