Niranjan and Gita Khanal, citizens of Nepal, sought asylum, withholding of removal, and protection under the Convention Against Torture after entering the United States on visitor visas. They alleged that due to their political activities with the National Democratic Party of Nepal and work for an international NGO, they faced death threats and extortion from the Maoist Communist Party. The Immigration Judge denied their claims, finding Niranjan Khanal's testimony not credible due to internal inconsistencies and discrepancies with his application. The Board of Immigration Appeals affirmed this decision, concluding that without credible testimony, the petitioners failed to meet their burden of proof. The agency did not separately evaluate the documentary evidence and witness testimony submitted by the petitioners, which included letters from the Maoists and the Kathmandu police, as well as declarations from friends testifying to the threats.
The First Circuit applied its precedent in Aguilar-Escoto v. Sessions to determine that the agency committed legal error. First, regarding credibility, the court held that when a petitioner provides salient evidence independent of their own testimony, the agency must consider that evidence and cannot deny claims based solely on an adverse credibility finding. The record contained letters from the Maoists and police, a news article, and testimony from two additional witnesses, which the agency failed to engage with. Second, regarding withholding of removal, the court clarified that this relief requires an objective assessment of the likelihood of future persecution, distinct from the subjective fear required for asylum. The agency erred by concluding that because the petitioners failed to establish asylum eligibility due to credibility issues, they could not meet the higher 'more likely than not' standard for withholding. The court emphasized that a lack of credibility does not automatically preclude a withholding claim if independent evidence objectively supports the fear of persecution. Finally, the court applied this same reasoning to the Convention Against Torture claim, noting that the independent evidence of death threats was potentially relevant to the likelihood of torture.
The BIA's order denying relief is vacated, and the case is remanded for further proceedings. The agency must now re-evaluate the petitioners' claims by independently considering the documentary evidence and witness testimony regarding death threats and extortion, setting aside the adverse credibility finding. On remand, the agency must also apply the correct purely objective standard to the withholding of removal claim to determine if it is more likely than not that the petitioners would face persecution if returned to Nepal.
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