Chhetri v. Rosen

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 19, 2021
• Docket: 19-9502
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 19, 2021 _________________________________ Christopher M. Wolpert Clerk of Court SHER B. CHHETRI,

Petitioner,

v. No. 19-9502 (Petition for Review) JEFFREY A. ROSEN, Acting United States Attorney General, *

Respondent. _________________________________

ORDER AND JUDGMENT ** _________________________________

Before PHILLIPS, McHUGH, and EID, Circuit Judges. _________________________________ Sher B. Chhetri, a native and citizen of Nepal, petitions for review of the Board of

Immigration Appeals’ (BIA) denial of his applications for asylum, restriction on removal,

and protection under the Convention Against Torture (CAT). We deny the petition for

review.

* On December 24, 2020, Jeffrey A. Rosen became Acting Attorney General of the United States. Consequently, he has been substituted for William P. Barr as Respondent. See Fed. R. App. P. 43(c)(2). ** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I

Mr. Chhetri entered the United States on August 14, 2015. At an initial interview,

an immigration official determined he had a credible fear of returning to Nepal and issued

him a Notice to Appear (NTA) before an immigration judge (IJ). The NTA charged

Mr. Chhetri with attempting to enter the U.S. without valid entry documents. See

8 U.S.C. § 1182(a)(7)(A)(i)(I). Mr. Chhetri conceded the charge but applied for asylum,

restriction on removal, and CAT protection based on his political opinion.

Before the IJ, Mr. Chhetri testified that he was an active member of the Nepali

Congress Party (NCP) for ten years. He stated that he attended NCP meetings, oversaw

its programs, assisted with its campaign efforts, and spoke about its development

initiatives. He testified, however, that he received several threats from the opposition

Maoist Party. The first threat was from an anonymous caller who instructed

Mr. Chhetri’s father to tell him to join the Maoists. After the call, Mr. Chhetri left home

and stayed with a friend. When he returned the next day, his father told him the Maoists

had come to their home wearing scarves on their faces, looking for him. Mr. Chhetri

became afraid, so he moved to Kathmandu, where he thought he would be more secure.

But in Kathmandu, Mr. Chhetri received a second threat from another anonymous

caller. This caller told him the Maoists had repeatedly instructed both him and his father

to join the Maoist party, but they insisted on supporting the NCP. The caller said when

the Maoists found him, they would kill him.

Mr. Chhetri changed his telephone number but doing so did not stop the threats.

Mr. Chhetri testified that at some point, a third caller told him the Maoists were at his

2 residence and he should open the door. This made him afraid, so he turned off the lights

and put down the phone, but no one came to his door. After this incident, he decided to

relocate again.

Mr. Chhetri moved to a place called Manmaiju, where he received a fourth

telephone threat. This time, the caller told him that even though he was running from one

place to another, the Maoists would find and kill him. Mr. Chhetri’s landlord overheard

the call and forced him to leave. Mr. Chhetri moved yet again, staying with a friend in a

town called Banianyatar. There, his previous landlord contacted him and informed him

that the Maoists had come to his residence and were making problems. The landlord told

Mr. Chhetri that if he discovered his whereabouts, he would report him to the Maoists.

Mr. Chhetri testified that at that point, he realized it would be difficult to survive

in Nepal. He explained that the Maoists were spread throughout the country and they had

threatened his father on four other occasions. He therefore fled Nepal and subsequently

learned the Maoists continued to ask his father and his wife about him. He testified that

he feared he would be killed if he were forced to return to Nepal. He further stated he did

not contact the police after any of these incidents because he did not know the telephone

number for the police, nor did he have any proof that these threats were made. He also

suggested the police would not help him because the Maoists are part of the government.

After considering this and other evidence, the IJ denied relief. The IJ determined

that Mr. Chhetri was credible, but that several anonymous telephone threats and one visit

to his father over the course of eight years was insufficient to show past persecution or a

well-founded fear of future persecution. Moreover, noting Mr. Chhetri’s testimony that

3 he declined to contact the police, the IJ ruled there was insufficient evidence to indicate

the Nepali government was unable or unwilling to protect him, adding that while there

was evidence of some general political violence in Nepal, the political parties had

co-existed peacefully since 2006 and 2007, especially in the Kathmandu area. Finally,

the IJ determined there was insufficient evidence the Nepali government would torture

him or acquiesce to his torture. The IJ thus ordered Mr. Chhetri removed to Nepal.

The BIA affirmed, ruling that Mr. Chhetri’s receipt of a limited number of

anonymous threats, mostly via telephone over a period of years, did not amount to

persecution. The BIA acknowledged the Maoists’ behavior was distressing, but it ruled

that Mr. Chhetri was never physically harmed and all of his problems consisted entirely

of threats. Moreover, the BIA found no clear error in the IJ’s conclusion that Mr. Chhetri

failed to show a well-founded fear of persecution. Last, the BIA ruled that the IJ did not

clearly err in finding that he failed to show it was more likely than not that he would be

tortured upon removal.

II

We review legal questions de novo and agency factual findings for substantial

evidence. Karki v. Holder, 715 F.3d 792, 800 (10th Cir. 2013). ‘“[T]he administrative

findings of fact are conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). “Our review is

confined to the reasoning given by the agency, and we will not independently search the

record for alternative bases to affirm.” Ritonga v. Holder, 633 F.3d 971, 974 (10th Cir.

2011) (brackets and internal quotation marks omitted).

4 To obtain asylum, an alien must show he “‘is unable or unwilling to return to [his

country of nationality] because of persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular social group, or political

opinion.’” Hayrapetyan v. Mukasey, 534 F.3d 1330, 1335 (10th Cir. 2008) (quoting

8 U.S.C. § 1101(a)(42)(A)). There is a rebuttable presumption that an alien who suffered

past persecution has a well-founded fear of future persecution. See id. at 1335-36 (citing

8 C.F.R. § 1208.13(b)(1)). Absent this presumption, “[a]liens basing their asylum claims

upon a well-founded fear of future persecution must show both a genuine, subjective fear

of persecution, and an objective basis by credible, direct, and specific evidence in the

record, of facts that would support a reasonable fear of persecution.” Karki, 715 F.3d at

801 (internal quotation marks omitted). “Such persecution may be inflicted by the

government itself or by a non-governmental group that the government is unwilling or

unable to control.” Hayrapetyan, 534 F.3d at 1337 (internal quotation marks omitted).

“The test for restriction on removal is . . . more demanding than the ‘well-founded

fear’ standard applicable to an asylum claim.” Ritonga, 633 F.3d at 978 (internal

quotation marks omitted). To obtain restriction on removal, an alien must show his “life

or freedom would be threatened in the country proposed for removal because of” a

statutorily protected ground. Id. (brackets and internal quotation marks omitted). The

alien must show either that he suffered past persecution or that “it is more likely than not

that he . . . would be persecuted on one of the specified grounds upon returning to the

proposed country of removal.” Id. (internal quotation marks omitted).

5 An alien seeking CAT protection “must demonstrate it is more likely than not that

he . . . would be tortured if removed to the proposed country of removal.” Id. (internal

quotation marks omitted). He need not show torture on account of a statutorily protected

ground, but he must show the torture would be “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. (internal quotation marks omitted).

Mr. Chhetri contends he was persecuted in Nepal and the death threats he received

indicate he is likely to be tortured if returned there. But our cases do not support his

contention. “[P]ersecution requires the infliction of suffering or harm upon those who

differ (in race, religion, or political opinion) in a way regarded as offensive and must

entail more than just restrictions or threats to life and liberty.” Hayrapetyan, 534 F.3d at

1337 (internal quotation marks omitted). “Mere denigration, harassment, and threats” do

not constitute persecution. Pang v. Holder, 665 F.3d 1226, 1231 (10th Cir. 2012)

(internal quotation marks omitted). Mr. Chhetri’s experiences—four telephone threats

and one vague, in-person threat made to his father—do not constitute persecution.

Compare Ritonga, 633 F.3d at 976 (holding record did not compel finding persecution

where, in addition to general violence and unrest, alien sustained minor injuries during a

home invasion, the police investigated the crime and apprehended its perpetrators, and

the alien was separately attacked in her car but suffered no injuries), and Sidabutar v.

Gonzales, 503 F.3d 1116, 1124 (10th Cir. 2007) (agreeing with BIA’s conclusion that

alien was not persecuted where he was repeatedly beaten on account of his religion, twice

resulting in serious injury; he was repeatedly confronted by people who demanded

6 money; and once, when he had no money to give, he was struck and his motorcycle was

burned), with Karki, 715 F.3d at 797-98, 804-05 (holding record compelled finding

persecution where, in addition to receiving threats, the alien’s aunt was killed in a house

bombing, he was the target of a lethal car bombing that killed five of his colleagues, his

real property was confiscated, and he was hospitalized by a severe beating that rendered

him semi-unconscious), and Hayrapetyan, 534 F.3d at 1333-34, 1337-38 (concluding

there was sufficient evidence of persecution where, in addition to being threatened, the

alien was imprisoned on two occasions, slapped, knocked to the ground, kicked, and

injured when nearly run over by a vehicle; her husband was severely beaten twice, one

time requiring a fifteen-day hospitalization; her daughter was nearly abducted; and she

was fired from her job).

Because Mr. Chhetri did not suffer past persecution, he was not entitled to a

presumption that he has a well-founded fear of persecution. Nonetheless, he could still

show an objectively well-founded fear of persecution with evidence that he will be

singled out for persecution in the future. See Ritonga, 633 F.3d at 976. But if he could

avoid persecution by relocating to another part of the county, and it would be reasonable

to do so, his fear of persecution is not well-founded. See id. at 976-77.

Mr. Chhetri seems to contend he will be singled out for persecution because there

is evidence the Maoists will find him no matter where he goes in Nepal. He points out

that they contacted him in various locations and warned him they would find him and kill

him, regardless of where he relocated. He says the IJ failed to consider this evidence or

make any findings concerning whether he had well-founded fear of persecution, relying

7 instead exclusively on his failure to show past persecution. Consequently, he contends

the BIA erred in affirming the IJ’s determination that he did not show a well-founded fear

of persecution.

The record does not support Mr. Chhetri’s arguments. After finding that he failed

to show past persecution, and therefore was not entitled to a rebuttable presumption of a

well-founded fear of future persecution, the IJ determined that Mr. Chhetri also failed to

show, independently, a well-founded fear of persecution. See Admin. R. at 60-61. The IJ

reasoned that Mr. Chhetri might experience threats similar to those previously made

against him, but this was insufficient to satisfy his burden of proof. The IJ also explained

that there was insufficient evidence that the government was unable or unwilling to

protect him, particularly given that Mr. Chhetri declined to contact the police. The IJ

added that although there was evidence of some continuing political violence, the various

political parties in Nepal have peacefully coexisted since 2006 and 2007, especially in the

Kathmandu area. These findings adequately support the IJ’s determination that

Mr. Chhetri did not show a well-founded fear of persecution. See Ritonga, 633 F.3d at

977 (holding that IJ adequately supported his determination that alien lacked a

well-founded fear of persecution by referencing facts in evidence and announcing

decision in terms sufficient to permit review); see also Ismaiel v. Mukasey, 516 F.3d

1198, 1207 (10th Cir. 2008) (recognizing the agency need not “write an exegesis on

every contention” (internal quotation marks omitted)).

To the extent Mr. Chhetri asserts there is no evidence “that the government of

Nepal is able to protect [him],” Pet’r Br. at 17, it was his burden to establish his eligibility

8 for asylum by showing, among other things, that the government of Nepal could not

protect him, see Pang, 665 F.3d at 1230 (“The applicant bears the burden of proof of

establishing eligibility for asylum.”); 8 C.F.R. § 1208.13(a). 1 As the BIA explained,

Mr. Chhetri offered “no persuasive argument that the information contained in the

background evidence establishes clear error in the [IJ’s] predictive findings of fact.”

Admin. R. at 4. The BIA therefore affirmed the IJ’s conclusion that Mr. Chhetri did not

meet his burden to establish his eligibility for asylum. Mr. Chhetri fails to show that any

reasonable adjudicator would be compelled to reach a contrary conclusion.

Mr. Chhetri’s “failure to satisfy the burden of proof for asylum necessarily

constitutes a failure to meet the more stringent burden of proof for restriction on

removal.” Dallakoti v. Holder, 619 F.3d 1264, 1268 (10th Cir. 2010) (ellipsis and

internal quotation marks omitted). He also failed to establish that he is likely to be

tortured if removed to Nepal. Indeed, the BIA ruled that Mr. Chhetri’s “[CAT] claim is

based on a speculative chain of assumptions and a fear of what might happen, rather than

on evidence that meets his burden of demonstrating that it is more likely than not he will

be subjected to torture.” Admin. R. at 5. In his petition for review, Mr. Chhetri cites no

1 To support this argument, Mr. Chhetri relies in part on new evidence submitted to the BIA that indicated the Maoists were successful in the 2017 Nepali elections. He argued to the BIA that this new evidence demonstrated the government could not protect him. But this evidence was not before the IJ. And the BIA determined that Mr. Chhetri “ha[d] not made a persuasive argument that, if the record were remanded to consider in the first instance the new background evidence (regarding events that occurred after the date of his hearing), the result of the proceedings would change.” Admin. R. at 4-5. The BIA therefore denied Mr. Chhetri’s motion for remand, and Mr. Chhetri does not challenge that ruling. 9 record evidence to support his contention that he is likely to be tortured if removed to

Nepal; instead, he relies again on speculation. See Pet’r Br. at 21 (arguing that the

Maoists threatened his life and “death would certainly constitute torture”). Accordingly,

we see no error in the denial of Mr. Chhetri’s CAT claim.

III

The petition for review is denied.

Entered for the Court

Allison H. Eid Circuit Judge