Ashok Gurung v. Attorney General United States ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-2331
ASHOK GURUNG
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
Respondent
______________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(No.: A206-023-467)
Immigration Judge: R.K. Malloy
Submitted under Third Circuit LAR 34.1(a)
on February 4, 2020
Before: SHWARTZ, SCIRICA and RENDELL, Circuit Judges
_________
O P I N I O N*
_________
RENDELL, Circuit Judge:
Petitioner Ashok Gurung, a native and citizen of Nepal, seeks review of an order
of the Board of Immigration Appeals (BIA) denying his applications for asylum,
withholding of removal, and protection under the Convention Against Torture (CAT).
For the following reasons, we will deny the petition for review.
I. FACTUAL BACKGROUND
Gurung entered the United States unlawfully in 2013 and the Department of
Homeland Security (DHS) commenced removal proceedings against him under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). Gurung conceded removability and applied for asylum,
withholding of removal, and relief under CAT. In support of his applications, Gurung
claimed a fear of returning to Nepal because he is at risk of being harmed by Nepali
Maoists.
At his removal hearing before the Immigration Judge (IJ), Gurung testified in
support of his applications for relief as follows: Gurung worked as a volunteer for the
Nepali Congress Party, which included campaigning and distributing informational
pamphlets. As a result, he became the target of a rival political party, the Maoists.
Maoist members sent him threatening letters, which demanded that he join the Maoists or
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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suffer harm. On one occasion, Maoist members violently attacked him in his home. To
avoid such threats and violence, Gurung fled to Pokhara, Nepal to stay with family,
returning to his home village after six months. He left again for Pokhara after two or
three months because Maoists returned to his home and threatened his parents. Gurung
ultimately fled Nepal after a few more months in Pokhara, when he saw Maoists and once
again felt unsafe. He arrived in the United States in 2013.
To support his applications, Gurung submitted, among other things, an affidavit
recounting the Maoist attack, threatening letters allegedly sent from the Maoist party, and
medical records related to the attack. The IJ also heard testimony from an expert, Dr.
Paran Niraula, who has a background in policy, education management, and leadership.
Dr. Niraula testified that the political situation in Nepal is unstable and that Maoists in the
country have targeted low-level grassroots party workers.
II. DECISIONS FROM THE IJ AND BIA
The IJ issued a decision and order denying Gurung’s applications, providing
several reasons for the denial. First, the IJ concluded that Gurung’s testimony was not
credible. The IJ based this adverse credibility determination on several discrepancies
between Gurung’s testimony and other evidence, including his affidavit and medical
records. The IJ also gave the supporting documents and expert testimony little to no
evidentiary weight. Alternatively, even assuming Gurung’s testimony was credible, the
IJ concluded that Gurung still would not be entitled to relief because Gurung could
reasonably be expected relocate to a different part of Nepal. The IJ noted that Gurung
had already relocated to Pokhara temporarily and lived with relatives without
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experiencing any threats or harm. Thus, the IJ ruled that Gurung was ineligible for
asylum relief because he had not established a “well-founded fear of persecution.” 8
U.S.C. § 1101(a)(42)(A).
The IJ also denied Gurung’s applications for withholding of removal and CAT
relief. The IJ concluded that because Gurung failed to establish eligibility under asylum,
he necessarily failed to establish eligibility for withholding of removal, which has a
higher burden of proof.1 The IJ also concluded that Gurung failed to establish eligibility
for CAT relief because he had not established that he would more likely than not
experience torture if he returned to Nepal, nor had he shown that the Nepali government
would be willfully blind to, and therefore acquiescent in, any future torture inflicted on
Gurung by the Maoist party.
The BIA issued a decision and order which affirmed the IJ’s ruling and dismissed
Gurung’s appeal. Specifically, the BIA (1) ruled that the IJ’s adverse credibility finding
was not clearly erroneous, (2) affirmed the IJ’s determination that Gurung could avoid
future persecution by relocating within Nepal,2 and (3) concluded that the IJ did not err in
1
In order to qualify for withholding of removal, a petitioner must establish that it is
“more likely than not” that he would suffer persecution. Valdiviezo-Galdamez v. Att’y
Gen. of U.S., 663 F.3d 582, 591 (3d Cir. 2011).
2
The BIA noted that Gurung waived the relocation issue because, while he challenged
the IJ’s relocation determination in his Notice of Appeal, his brief did not address this
issue or explain why the IJ’s determination was erroneous. We have held, however, that
“regulation § 1003.3(c) is devoid of any instruction regarding what the brief must
contain.” Hoxha v. Holder, 559 F.3d 157, 163 (3d Cir. 2009). Indeed, “[t]here is nothing
that demands that the brief reiterate the issues initially identified in the notice of appeal in
order to preserve a right to judicial review if the appellant is unsuccessful before the
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determining that Gurung failed to establish that he would more likely than not be tortured
if he returned to Nepal. Gurung then petitioned for review.
III. JURISDICTION AND STANDARD OF REVIEW
The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3). We have jurisdiction
under 8 U.S.C. § 1252(a). We review the BIA’s factual findings, including adverse
credibility determinations, for substantial evidence. Butt v. Gonzales, 429 F.3d 430, 433
(3d Cir. 2005). Accordingly, we will uphold factual conclusions “unless any reasonable
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
We review the IJ’s findings under the same standard to the extent “the BIA directs us to
the [IJ’s] opinion and decision.” Yusupov v. Att’y Gen., 650 F.3d 968, 977 (3d Cir. 2011)
(citation omitted). The IJ may assess an applicant’s credibility based on “the totality of
circumstances, and all relevant factors,” including “any inaccuracies or falsehoods in [the
applicant’s written and oral] statements, without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant’s claim.” 8 U.S.C. §
1229a(c)(4)(C).
Gurung challenges the denial of his applications for asylum, withholding of
removal, and protection under CAT. We will address each claim in turn.
BIA.” Id. We will therefore consider this issue in our discussion below.
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IV. ANALYSIS
A. Asylum
To be eligible for asylum relief, a petitioner must establish that he has a “well-
founded fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Persecution is
defined as “threats to life, confinement, torture, and economic restrictions so severe that
they constitute a threat to life or freedom.” Camara v. Att’y Gen., 580 F.3d 196, 202 (3d
Cir. 2009) (citation omitted). An applicant who has proved past persecution is entitled to
a rebuttable presumption that he has a well-founded fear of persecution; however relief
will not be granted if the government is able to rebut that presumption by showing that
“[t]he applicant could avoid future persecution by relocating to another part of the
applicant’s country of nationality.” 8 C.F.R. § 1208.13(b)(1)(i)(B).
Gurung argues that the IJ’s adverse credibility determination is not supported by
substantial evidence and the record shows that he will be subjected to country-wide
persecution if he were to return to Nepal. The IJ noted several discrepancies between
Gurung’s testimony and other supporting evidence. These discrepancies concerned: the
number of Maoists who attacked him, whether his attackers carried a knife, whether his
parents witnessed the attack, the timing of the attack, and the reason why the police
denied him aid. Citing to these inconsistencies, the IJ ultimately found that Gurung’s
testimony was not credible based on the totality of the evidence. The IJ also determined
that the threatening letters Gurung allegedly received from the Maoists were fabricated to
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support his application.3 The IJ also gave Dr. Niraula’s testimony limited weight because
he “does not have special training in Nepalese politics.” IJ Op. 5.
Based on these inconsistencies and lack of supporting evidence, the IJ concluded
that Gurung failed to demonstrate the well-founded fear of persecution required for an
asylum claim. Given our highly deferential standard of review, we cannot conclude that
either the IJ’s credibility determination, or the IJ’s ultimate determination that Gurung
failed to meet his burden of proof, lacks support in the record.
Alternatively, the IJ ruled that, even assuming Gurung had experienced past
persecution, DHS successfully rebutted the presumption that Gurung had a well-founded
fear of persecution. The IJ ruled that Gurung could relocate within Nepal, which he did
prior to his arrival in the United States. The IJ pointed out that Gurung did not
experience any threats or harm while living with his family in Pokhara. The IJ also noted
that the Maoists who attacked him did not appear to be working in concert with a larger
party structure, and accordingly, it would be reasonable for him to relocate safely within
Nepal. This evidence—along with evidence that the attack on Gurung was “highly
localized and rare”—supports the IJ’s conclusion that Gurung could reasonably relocate
within Nepal. Id.Accordingly, we find that Gurung’s challenge to the BIA’s denial of his asylum
claim lacks merit.
3
The IJ noted that the letters: (1) suspiciously stated the exact date and time of the Maoist
attack; (2) included specific information that the Maoists would unlikely be aware of; and
(3) were allegedly written by the main Maoist group in Nepal, which would be unlikely
to carry out attacks against individuals.
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B. Withholding of Removal
To qualify for withholding of removal, a petitioner must establish a “clear
probability of persecution,” meaning that it is “more likely than not” that he would suffer
persecution. Valdiviezo-Galdamez, 663 F.3d at 591. Because Gurung cannot meet the
well-founded fear of persecution standard for asylum, it necessarily follows that he
cannot meet the more stringent standard for withholding of removal. See Chen v.
Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004) (“An alien who fails to establish that he or she
has a well-founded fear of persecution, so as to be eligible for asylum, necessarily will
fail to establish the right to withholding of removal.”).
C. CAT Protection
To obtain CAT relief, Gurung must show that it is “more likely than not” that he
would be tortured if removed to Nepal. Kibinda v. Att’y Gen., 477 F.3d 113, 123 (3d
Cir. 2007). Under CAT, torture “is an extreme form of cruel and inhuman treatment” that
is inflicted by or “with the consent or acquiescence of a public official.” 8 C.F.R. §
208.18(a)(1), (2).
The IJ determined that Gurung did not suffer past torture within the meaning of
the regulations. The IJ also ruled that Gurung could escape future torture by relocating
within Nepal and noted that he had “successfully evaded his would-be torturers for over a
year” while living in Nepal. IJ. Op. at 15. Furthermore, the IJ noted that Gurung
presented no evidence that the Nepali government acquiesces in Maoist torture of its
civilians. Thus, we conclude that the IJ’s determination is supported by substantial
evidence and will uphold the BIA’s denial of Gurung’s request for relief under CAT.
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V. CONCLUSION
For the foregoing reasons, we will deny Gurung’s petition for review.
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