Sher Bahadur KC, a native and citizen of Nepal, sought review of an order from the Board of Immigration Appeals (BIA) that upheld an immigration judge's decision. The immigration judge had issued an in absentia removal order against KC because he failed to appear at his hearing on August 7, 2020. Additionally, the judge denied KC's claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The government initially argued that KC had failed to exhaust his administrative remedies, but the court bypassed this procedural hurdle to address the merits of the case directly.
The court addressed three primary issues. First, regarding the in absentia removal order, the court applied the standard that a failure to appear must be due to 'exceptional circumstances… beyond [the petitioner's] control.' KC admitted he and his counsel received notice of the hearing but argued his absence was justified because he mistakenly believed a prior notice from another court mooted the current one, and he assumed a motion for change of venue would be granted. The court held that these were merely 'erroneous assumptions' and did not rise to the level of exceptional circumstances. Second, the court reviewed the denial of asylum and withholding of removal under the substantial evidence standard. KC argued he was denied due process because he was not given a meaningful opportunity to respond to credibility discrepancies. The court found this argument meritless, noting KC had testified at a prior merits hearing where the judge confronted him with inconsistencies, such as his wife's failure to mention his alleged assault and his confusing admission of identity to a stranger. Third, the court found the evidence did not compel a conclusion that KC suffered past persecution or had a well-founded fear of future persecution, as he failed to show the Nepalese government was unwilling or unable to control his alleged persecutors. The court also excluded a country conditions report not in the record and rejected his CAT claim as conclusory.
The petitioner's petition for review is denied, and the in absentia removal order stands. This decision reinforces that subjective misunderstandings about court procedures or pending motions do not excuse a failure to appear in immigration proceedings. It also clarifies that country conditions reports not included in the administrative record cannot be considered on appeal, and that conclusory assertions of political targeting are insufficient to meet the high bar for Convention Against Torture protection.
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