In Sharma v. Holder, the U.S. Fifth Circuit Court of Appeals reinstated the petitioner's application for asylum based on political persecution. The Fifth Circuit determined that the immigration judge and the Board of Immigration Appeals had incorrectly required the petitioner to produce direct proof of a connection between his persecution and his political opinion.
Background and procedural history
The petitioner, a citizen of Nepal, entered the U.S. without inspection in 2010. In 2011, the petitioner filed applications for asylum, for withholding of his removal and for relief under the Convention Against Torture. The applications were based on assertions that the petitioner had been subjected to past persecution in Nepal and that he feared future persecution there because of his political opinion and his membership in a social group, known as the Nepal Student Union, which opposed the Communist Party of Nepal (the Maoists).
The U.S. Department of Homeland Security subsequently filed charges seeking the petitioner's removal from the U.S. on the ground that he was an alien who was present in the U.S. without having been admitted or paroled.
An immigration judge ruled that the petitioner had failed to present sufficient proof of a connection between the persecution and the petitioner's political opinion.
The Board of Immigration Appeals upheld the immigration judge's ruling, likewise determining that the petitioner had not met the burden of proof of a nexus between his political opinion and the persecution.
The ruling by the Fifth Circuit
The Fifth Circuit reversed the decision of the Board of Immigration Appeals. The appeals court determined that, in these types of cases, the petitioner need only submit some evidence, direct or circumstantial, that the persecutors were aware of the petitioner's political opinion and that the petitioner would, or would likely have been, persecuted because of it. The petitioner was not required to produce direct proof of the motives of his persecutors.
In this case, the evidence indicated that the petitioner, together with his fellow school volleyball teammates, was kidnapped by the Maoists when the petitioner was 14 years old. Although he was not initially abducted by the Maoists based on his political affiliation, the petitioner's testimony established that he was tortured and detained longer than others in the group because of his political opposition to the Maoists. The abusive treatment was increased when the petitioner confirmed his political opposition to the Maoists and acknowledged his membership in the Nepal Student Union.
The Fifth Circuit reinstated and remanded the case to the Board of Immigration Appeals for further proceedings.
Contact an attorney
Noncitizens facing deportation, or seeking relief or cancellation of removal or other immigration proceedings, are urged to consult with a competent attorney experienced in these matters to ensure that their legal rights are protected.