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Tilija v. Attorney General United States of America

United States Court of Appeals, Third Circuit

July 12, 2019

YAGENDRA TILIJA, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent

          Argued November 27, 2018

          On Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals (A208-925-410) Immigration Judge: Daniel A. Morris

          Stephen A. Fogdall Rachel A.H. Horton [ARGUED] Schnader Harrison Segal & Lewis Counsel for Petitioner

          Sharon M. Clay Andrew J. Oliveira [ARGUED] Counsel for Respondent

          Before: GREENAWAY, JR., SHWARTZ, and BIBAS, Circuit Judges

          OPINION

          GREENAWAY, JR., CIRCUIT JUDGE.

         Petitioner Yagendra Tilija appeals a final order of removal issued by the Board of Immigration Appeals ("BIA" or "Board"), which denied his motion to remand and dismissed his appeal from the decision of the Immigration Judge ("IJ"). For the following reasons, we will grant Tilija's petition for review, conclude as a matter of law that the new evidence Tilija submitted established a prima facie asylum claim, and remand for further proceedings.

         I. Factual and Procedural Background

         Tilija is a Nepali native and citizen who was charged removable under 8 U.S.C. § 1182(a)(7)(i)(I) and applied for asylum and withholding of removal under the Immigration and Nationality Act ("the Act") and protection under the Convention Against Torture ("CAT").[1] Tilija joined the Nepali Congress Party ("NCP") in 2013, which is the political rival of the Maoist Party. Tilija campaigned on behalf of the NCP by attending meetings, putting up posters, participating in rallies, distributing pamphlets, and canvassing door-to-door. Maoists told Tilija to join their party and warned him not to participate in the election. On an occasion where Tilija was campaigning for the NCP, a group of Maoists attacked him, throwing stones at Tilija and injuring his face above his right eye and along the side of his face, resulting in six stitches. Maoists came to Tilija's home and told his father that if they saw Tilija, they would kill him. When Tilija was discharged from the hospital, he stayed at a hotel instead of going to his home in the village due to this threat.

         Tilija, feeling unsafe, moved to Pokhara, a town four hours away from his home. When he reached Pokhara, Maoists called him and told him that the y would kill him the next time they found him. A month later, Maoists called Tilija again, telling him to leave the NCP and warning him that if he did not, they would kill him. Maoists called a third time, telling Tilija that if he came back to his village, they would kill him. One day, an individual who Tilija knew to be a Maoist activist visited the store where Tilija was working, and though the individual did not say anything, Tilija became afraid and decided to quit his job and leave Pokhara.

         Tilija then moved to Kathmandu. Approximately a month later, a Maoist called him and again threatened to kill him, at which point Tilija stopped using his cell phone. Tilija remained in Kathmandu for a year, until an earthquake destroyed the house he was renting, after which Tilija lived in a tent for a month, afraid to return home to his village. There were strikes and protests against the government throughout the country, and Tilija did not feel safe from the Maoists amidst the chaos, so he decided to leave Nepal. Tilija observed that many members of the police were affiliated with Maoists, and according to Tilija, the police did not investigate crimes committed by Maoists. Therefore, Tilija did not report the Maoists' attack on him or any of their threats to the police because he believed that the police would not be able to protect him. He had observed previously that the police did not investigate when Maoists murdered his cousin's father-in-law. He was also afraid that if he went to the police, the Maoists would find out and retaliate.

         The IJ denied Tilija's application for asylum and withholding of removal under the Act and the CAT. The IJ found Tilija to be credible regarding his claim and found that Tilija adequately corroborated his claim with evidence. The IJ also found that Tilija was targeted for his political opinion. However, the IJ determined that the harm Tilija suffered did not rise to the level of persecution under the Act and that Tilija did not establish that the government was unable or unwilling to protect him.

         On appeal to the BIA, Tilija presented new evidence that was not available previously. According to Tilija, after his merits hearing on January 6, 2017, his wife was assaulted and raped on January 21, 2017, because of his political activities, opinion, and affiliation with the NCP. Tilija's wife provided a letter for submission to the BIA, noting she "went to [a] nearby police office and reported the incident." JA 357. She also submitted medical records of an abortion and treatment in a clinic following the assault and rape. Mrs. Tilija also provided letters from individuals in Nepal, including one from a friend who corroborated that Tilija and his wife have both been victims of Maoists, and that following her rape and assault, Mrs. Tilija "reported to the police on the same day but she did not get any help from [the] police." JA 346. Despite this new evidence, the BIA denied Tilija's motion for remand and held that he did not present sufficient evidence to overcome the IJ's determination that Tilija failed to show that the government was unable or unwilling to protect him. This timely petition for review followed.

         II. Jurisdiction and ...


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