Devender Damai v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 16, 2022
• Docket: 17-71730
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 16 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DEVENDER SINGH DAMAI, No. 17-71730

Petitioner, Agency No. A099-769-294

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted May 12, 2022** San Francisco, California

Before: WALLACE, W. FLETCHER, and SANCHEZ, Circuit Judges.

Petitioner Devender Singh Damai, a native and citizen of Nepal who has

resided within the United States since 2005, petitions for review of the Board of

Immigration Appeals’ (“Board”) decision dismissing his appeal from an

Immigration Judge’s order denying his applications for asylum, withholding of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). removal, and protection under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

We review denials of asylum, withholding of removal, and CAT relief for

substantial evidence, meaning that “[t]o reverse the [Board], we must determine

that the evidence not only supports [a contrary] conclusion, but compels it—and

also compels the further conclusion that the petitioner meets the requisite standard

for obtaining relief.” Sanjaa v. Sessions, 863 F.3d 1161, 1164 (9th Cir. 2017)

(internal quotation marks and citation omitted). Substantial evidence supports the

Board’s determination that Damai’s allegations of past harm do not rise to the level

of persecution. See, e.g., Bondarenko v. Holder, 733 F.3d 899, 908–10 (9th Cir.

2013); Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (persecution

more likely to be found where threats are “repeated” and “specific”).

Next, Damai bore the burden of demonstrating he had a well-founded fear of

future persecution and could not avoid that persecution by relocating internally

within the country of removal. 8 C.F.R. §§ 1208.13(b)(2)-(3). The record

establishes that Damai and his family had relocated to Kathmandu for several

months, faced no threats from Maoists, and left only because the rent was high.

Substantial evidence supports the Board’s determination that Damai could avoid

future persecution by relocating internally within Nepal.

Because Damai has not demonstrated entitlement to asylum, his claim for

2 withholding of removal necessarily falls away. Davila v. Barr, 968 F.3d 1136,

1142 (9th Cir. 2020) (“An applicant who fails to satisfy the lower standard for

asylum necessarily fails to satisfy the more demanding standard for withholding of

removal, which involves showing by a ‘clear probability’ that the petitioner's life

or freedom would be threatened in the proposed country of removal.”) (citation

omitted).

To qualify for protection under CAT, an applicant must demonstrate that it is

more likely than not the applicant will be tortured by government actors, or

tortured with the acquiescence of government actors, if returned to their country of

origin. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). Substantial evidence supports

the Board’s determination that Damai had not been tortured by any government

actor and he had not shown that any government official would seek to torture him

or “turn a blind eye” to any torture at the hands of a private actor. See Ornelas-

Chavez v. Gonzales, 458 F.3d 1052, 1059 (9th Cir. 2006) (citation omitted).

PETITION DENIED.