Kshetri v. Garland ( 2022 )

Case: 21-60448 Document: 00516455020 Page: 1 Date Filed: 08/31/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 31, 2022
No. 21-60448
Summary Calendar Lyle W. Cayce
Clerk
Tham Bahadur Kshetri,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A201 755 232
Before Smith, Dennis, and Southwick, Circuit Judges.
Per Curiam:*
Tham Bahadur Kshetri, a native and citizen of Nepal, petitions for
review of a decision by the Board of Immigration Appeals (BIA) dismissing
an appeal from the immigration judge’s (IJ) denial of asylum, withholding of
removal, and relief under the Convention Against Torture (CAT).
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-60448 Document: 00516455020 Page: 2 Date Filed: 08/31/2022
No. 21-60448
Kshetri argues at length that the IJ incorrectly decided that he was not
credible. Because the BIA did not base its decision on credibility, this
argument is irrelevant. See Singh v. Sessions, 880 F.3d 220, 224 (5th Cir.
2018) (explaining that this court does review the IJ’s decision only to the
extent it influenced the BIA’s decision).
In a conclusional manner, Kshetri asserts that the evidence, in the
aggregate, shows that he suffered past persecution; that he has an objectively
reasonable fear of future persecution; and that he will more likely than not
face persecution with regard to his withholding of removal claim. To the
extent he asserts that the IJ and the BIA did not consider the incidents in the
aggregate, the record does not support his assertion. Under the substantial
evidence standard, relief is not warranted unless the evidence not only
supports a conclusion contrary to the BIA’s decision but compels it. See
Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005). Kshetri’s conclusional
assertions do not compel a conclusion contrary to that of the BIA on the issue
of past persecution or a well-founded fear of future persecution. See id.; see
also Gjetani v. Barr, 968 F.3d 393, 398 (5th Cir. 2020); Eduard v. Ashcroft, 379
F.3d 182, 189 (5th Cir. 2004). Because Kshetri does not show eligibility for
asylum, he cannot make the more difficult showing of eligibility for
withholding of removal. See Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir.
2002).
Finally, Kshetri asserts that he has shown that some form of torture is
likely if he is removed to Nepal because Biplav Maoists have threatened him
with death. Not only does this conclusional assertion fail to compel a
conclusion that torture is likely, but it fails to challenge the IJ’s ruling that
any torture would not be “by, or with the acquiescence of, government
officials acting under the color of law.” Hakim v. Holder, 628 F.3d 151, 155
(5th Cir. 2010). The petition for review is DENIED.
2