NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 19 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT KISHOR KHATIWADA, No. 16-71772 Petitioner, Agency No. A093-396-754 v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 7, 2018 Seattle, Washington Before: McKEOWN and FRIEDLAND, Circuit Judges, and BOLTON,** District Judge. Petitioner Kishor Khatiwada, a Nepali national and citizen, seeks review of the Board of Immigration Appeals’ (“BIA”) decision denying him asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation. Reviewing the agency’s factual findings for substantial evidence, Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir. 2006), we grant the petition with regard to Khatiwada’s asylum and withholding claims.1 We deny the petition with regard to his CAT claim. Khatiwada’s claims are based on his and his family’s affiliation with the Nepali Congress Party, a major political opponent of Nepal’s Maoists. Khatiwada testified that in 2003, a group of eight Maoists came to his family home and demanded that his family quit the party and provide three sons to the Maoist armed forces. The Maoists beat Khatiwada’s father and abducted his brother when his father refused their demands. Later, while Khatiwada was living elsewhere in Nepal, a group of Maoists returned to the family home, reiterated their demands, and abducted another brother. After Khatiwada fled Nepal for the United States, individuals claiming to be affiliated with the Maoists harassed his wife on multiple occasions, requesting a monetary “donation” and threatening to kill Khatiwada if he returned to Nepal without notifying them and joining their cause. An immigration judge (“IJ”) found Khatiwada credible but determined that he had not shown a legally sufficient nexus between any potential persecution and a protected ground—in this case, his actual or imputed political beliefs—that could entitle him to asylum or withholding. See 8 U.S.C. §§ 1158(b)(1)(A), 1231(b)(3)(A). The 1 We refer to the BIA and immigration judge collectively as “the agency.” 2 BIA affirmed. 1. Simply resisting recruitment is not an inherently political act. See I.N.S. v. Elias-Zacarias, 502 U.S. 478, 482-83 (1992). But it does not follow that Khatiwada’s “desire to avoid conscription . . . somehow disqualified [him] from eligibility” for relief. Melkonian v. Ashcroft, 320 F.3d 1061, 1068 (9th Cir. 2003). Even if substantial evidence supports the agency’s conclusion that Khatiwada’s association with the Nepali Congress Party was not “one central reason” for the Maoists’ first visit to Khatiwada’s family home and attempt to recruit Khatiwada, the agency did not consider whether Khatiwada’s or his family’s political affiliation was “a reason” for the Maoists’ targeting them.2 See Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017) (“We hold ...
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