Erdenechuluun Tsermaa v. Loretta E. Lynch , 650 F. App'x 353 ( 2016 )


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  •                                                                            FILED
    NOT FOR PUBLICATION
    MAY 17 2016
    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ERDENECHULUUN TSERMAA,                           No. 13-73632
    Petitioner,                        Agency No. A200-993-606
    v.
    MEMORANDUM*
    LORETTA E. LYNCH, Attorney General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted May 13, 2016**
    San Francisco, California
    Before: KLEINFELD, IKUTA, and WATFORD, Circuit Judges.
    Erdenechuluun Tsermaa, a native and citizen of Mongolia, petitions for
    review of an order of the Board of Immigration Appeals (BIA) dismissing his
    appeal from a decision denying his application for asylum, withholding of removal,
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    Page 2 of 3
    and protection under the Convention Against Torture (CAT). We deny the petition.
    1. Substantial evidence supports the BIA’s conclusion that Tsermaa failed
    to establish eligibility for either asylum or withholding of removal. Tsermaa
    claims that he fears retribution for his role in exposing corruption by the former
    deputy director of a coal mine in Mongolia in the wake of a fatal mine collapse.
    But the BIA could reasonably conclude that Tsermaa’s alleged whistleblowing
    activity did not target “corruption inextricably intertwined with governmental
    operation,” Grava v. INS, 
    205 F.3d 1177
    , 1181 (9th Cir. 2000), and the record does
    not compel the conclusion that the former deputy director’s actions were part of
    any institutionalized corruption, see Sagaydak v. Gonzales, 
    405 F.3d 1035
    , 1042
    (9th Cir. 2005). Prosecutors in Mongolia brought criminal charges against the
    former deputy director, and a Mongolian court convicted him and handed down a
    prison sentence. Neither the fact that the coal mine was partially state-owned nor
    Tsermaa’s allegations regarding the high level of corruption in Mongolia compel a
    conclusion contrary to the one the BIA reached. See 
    8 U.S.C. § 1252
    (b)(4)(B).
    2. Substantial evidence also supports the BIA’s conclusion that Tsermaa
    failed to demonstrate eligibility for CAT relief. Nothing in the record supports
    Tsermaa’s assertion that he “is likely to be tortured, rather than persecuted,” if
    returned to Mongolia. Wakkary v. Holder, 
    558 F.3d 1049
    , 1068 (9th Cir. 2009).
    Page 3 of 3
    None of the violent encounters Tsermaa recounts approach the level of torture as
    the CAT and its implementing regulations define that term. See 
    8 C.F.R. § 208.18
    (a)(1). Tsermaa has also provided no reason to conclude that, if returned
    to Mongolia, he would be tortured “by or at the instigation of or with the consent
    or acquiescence of a public official or other person acting in an official capacity.”
    
    Id.
     Tsermaa testified that he was “not afraid of the Mongolian police,” and instead
    feared only the former deputy director’s “people” in Mongolia, but the former
    deputy director’s previous affiliation with the government no longer appears to
    exist, as he was fired in the wake of the government’s successful prosecution.
    PETITION DENIED.
    

Document Info

Docket Number: 13-73632

Citation Numbers: 650 F. App'x 353

Filed Date: 5/17/2016

Precedential Status: Non-Precedential

Modified Date: 1/13/2023