Binod Kumar Tiwari v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BINOD KUMAR TIWARI,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-71937
Agency No. A099-361-340
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 10, 2014
San Francisco, California
Before: FISHER and PAEZ, Circuit Judges, and QUIST, Senior District Judge.**
Binod Kumar Tiwari, a native and citizen of Nepal, petitions for review of a
decision by the Board of Immigration Appeals (BIA) denying his application for
asylum, withholding of removal, and protection under the Convention Against
Torture (CAT). Tiwari contends that the BIA erred in its determination that he
FILED
JAN 07 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.

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failed to establish past persecution, a well-founded fear of future persecution, and
entitlement to relief under the CAT. We have jurisdiction under 8 U.S.C. § 1252.
We grant the petition and remand for further proceedings.
Tiwari alleges that he left Nepal after a group of Maoist insurgents
physically attacked him because he was a member of the police force and the
National Democratic Party (NDP). The physical attack followed repeated threats
and extortion demands from the Maoists. The BIA held that, although the actions
of the Maoists were motivated by Tiwari’s anti-communist political opinion, the
harms inflicted upon Tiwari did not rise to the level of persecution.
We review the BIA’s decision for substantial evidence. Camposeco-
Montejo v. Ashcroft, 384 F.3d 814, 818 (9th Cir. 2004). We may reverse the BIA’s
decision only if the evidence compels the conclusion that the BIA’s decision was
incorrect. Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007) (en banc).
Persecution is defined generally as “the infliction of suffering or harm upon
those who differ (in race, religion or political opinion) in a way regarded as
offensive.” Prasad v. INS, 47 F.3d 336, 339 (9th Cir. 1995) (internal quotation
marks omitted). To determine whether a petitioner endured treatment that rises to
the level of persecution, the court should look to the “cumulative effect” of the
incidents suffered. Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998).
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Substantial evidence compels the conclusion that the harm Tiwari
experienced rises to the level of persecution. Tiwari received a series of
threatening phone calls from individuals that identified themselves as members of
Maoist groups. The callers attempted to extort money from Tiwari, and demanded
that Tiwari resign from the police force and the NDP and join the Maoists. The
callers threatened Tiwari with bodily harm if he did not comply with their
demands, and made at least one barely veiled threat against his life. Tiwari did not
comply with the callers’ demands, and he was ultimately accosted and beaten by
members of a Maoist group. The cumulative effect of those incidents compels the
conclusion that Tiwari suffered past persecution. See Ahmed v. Keisler, 504 F.3d
1183, 1194 (9th Cir. 2007) (“Physical harm has consistently been treated as
persecution.”); Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th Cir. 2004)
(“[T]hreats may be compelling evidence of past persecution, particularly when
they are specific and menacing and are accompanied by evidence of violent
confrontations, near-confrontations and vandalism.”); Korablina v. INS, 158 F.3d
1038, 1044 (9th Cir. 1998) (“A single isolated incident may not rise to the level of
persecution, but the cumulative effect of several incidents may constitute
persecution.” (alterations and internal quotation marks omitted)).
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Because the evidence compels a finding of past persecution, Tiwari is
entitled to a presumption of a well-founded fear of future persecution. 8 C.F.R. §
208.13(b)(1). We remand to the BIA for further proceedings consistent with this
disposition. See id. We do not address Tiwari’s remaining arguments regarding
the fear of future persecution or entitlement to relief under the CAT.
Costs are awarded to the petitioner.
The petition is GRANTED, the denial of asylum is VACATED, and the
petition is REMANDED to the BIA for further proceedings.
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