NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KISHOR KHATIWADA, 

Petitioner, 

 v. 

MATTHEW G. WHITAKER, Acting 

Attorney General, 

Respondent.

No. 16-71772 

Agency No. A093-396-754 

MEMORANDUM*

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.

FILED

NOV 19 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

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.”
3 

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 that ‘a reason,’” the standard 

applicable to withholding, “is a less demanding standard than ‘one central 

reason[,]’” the standard that governs asylum claims.). Nor does it appear that the

agency considered the Maoists’ motivation for their attacks on Khatiwada’s family

following the family’s refusal to cooperate with them during the first incident—the 

agency did not expressly discuss whether Khatiwada’s political beliefs were one 

central reason or a reason for the subsequent incidents. We remand so that the BIA 

 

2 The Government concedes that the agency did not consider whether 

Khatiwada might have satisfied the “a reason” standard and that remand is 

appropriate if the Maoists might have been motivated by both political and nonpolitical factors.
4 

may reconsider whether the nexus requirement for asylum or withholding was 

satisfied here, and, if so, to evaluate whether Khatiwada has satisfied the other 

requirements for those forms of relief. 

2. Substantial evidence supports the agency’s determination that Khatiwada

has not shown he would more likely than not be tortured by or with the 

acquiescence of a government official if he returned to Nepal. See 8 C.F.R. 

§ 1208.16(c)(2). Khatiwada’s assertion that he would be tortured in the future 

because some Maoists now hold positions in the Nepali government relies on a 

series of inferences not compelled by the record. Khatiwada produced nothing 

showing that the Maoists who targeted his family are the same as or linked to those 

who now hold power; there are multiple rival Maoist factions in Nepal. We 

therefore deny the petition with respect to the CAT claim.

GRANTED in part, DENIED in part, and REMANDED.