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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-11476 Non-Argument Calendar ________________________
Agency No. A216-275-064
GANESH BAHADUR-CHHETRI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(February 6, 2020)
Before JORDAN, NEWSOM and BLACK, Circuit Judges.
PER CURIAM: Case: 19-11476 Date Filed: 02/06/2020 Page: 2 of 16
Ganesh Bahadur-Chhetri, a native and citizen of Nepal who entered the
United States without inspection in February 2018, seeks review of the Board of
Immigration Appeals’ (BIA) final order affirming the Immigration Judge’s (IJ)
denial of his September 2018 application for asylum, withholding of removal, and
Convention Against Torture (CAT) relief. Bahadur-Chhetri asserts the IJ and BIA 1
erred in denying asylum because (1) the record compels a finding that he suffered
past persecution; and (2) the IJ and BIA erred by failing to consider the proper
standards for a well-founded fear of future persecution, and the record compels a
finding that he had a well-founded fear of future persecution. He also contends the
IJ and BIA erred in denying withholding of removal and CAT relief. After
review, 2 we deny the petition.
1 Because the BIA agreed with the IJ’s reasoning, we review the decisions of both the IJ and the BIA. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (stating we “review only the [BIA’s] decision, except to the extent that it expressly adopts the IJ’s opinion. Insofar as the [BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as well.” (citation omitted)). 2 Factual determinations are reviewed under the substantial evidence test, which requires us to “view the record evidence in the light most favorable to the agency’s decision and draw all reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). We “must affirm the BIA’s decision if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Id. at 1027 (quotations omitted). To reverse factual findings, we must find that the record not only supports reversal, but compels it. Id.
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I. DISCUSSION
1. Asylum
An applicant for asylum must meet the Immigration and Nationality Act’s
definition of a refugee. 8 U.S.C. § 1158(b)(1). The definition of “refugee”
includes:
any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country 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.
8 U.S.C. § 1101(a)(42)(A). “To establish asylum eligibility, the petitioner must,
with specific and credible evidence, demonstrate (1) past persecution on account of
a statutorily listed factor, or (2) a ‘well-founded fear’ that the statutorily listed
factor will cause future persecution.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257
(11th Cir. 2006).
1. Past Persecution
Bahadur-Chhetri argues the IJ’s finding, and the BIA’s affirmance of the
finding, that he did not suffer past persecution in Nepal is not supported by
substantial evidence. We have stated “persecution is an extreme concept, requiring
more than a few isolated incidents of verbal harassment or intimidation, and that
mere harassment does not amount to persecution.” Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1231 (11th Cir. 2005) (quotations and brackets omitted) 3 Case: 19-11476 Date Filed: 02/06/2020 Page: 4 of 16
(concluding evidence of bombing of petitioner’s workplace, menacing telephone
calls, and threats made to the petitioner did not compel finding of past
persecution). In determining whether a petitioner has suffered past persecution, the
factfinder must consider the cumulative effects of the incidents. Delgado v. U.S.
Att’y Gen., 487 F.3d 855, 861 (11th Cir. 2007). “Minor physical abuse and brief
detentions do not amount to persecution.” Kazemzadeh v. U.S. Att’y Gen., 577
F.3d 1341, 1353 (11th Cir. 2009) (determining an arrest, interrogation, five-hour
beating, and 4-day detention, without any physical harm, did not compel a finding
of past persecution). However, attempted murder is persecution regardless of
whether the petitioner is physically injured. Sanchez Jimenez v. U.S. Att’y Gen.,
492 F.3d 1223, 1233 (11th Cir. 2007) (concluding intentionally being shot at in a
moving car multiple times qualifies as past persecution). Likewise, “[a] credible
death threat by a person who has the immediate ability to act on it constitutes
persecution regardless of whether the threat is successfully carried out.” Diallo v.
U.S. Att’y Gen., 596 F.3d 1329, 1333-34 (11th Cir. 2010) (concluding the record
compelled a finding of persecution based on the cumulative effect of a minor
beating, an 11-hour detention, and a death threat by the same soldiers who had
already killed the petitioner’s brother). Furthermore, serious physical injury is not
required to prove past persecution “where the petitioner demonstrates repeated
threats combined with other forms of serious mistreatment.” De Santamaria v.
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U.S. Att’y Gen., 525 F.3d 999, 1009 (11th Cir. 2008) (determining the petitioner
suffered past persecution after she was assaulted, her groundskeeper was murdered
for refusing to disclose her whereabouts, and she was kidnapped and beaten with
the butts of guns).
Substantial evidence supports the IJ’s and BIA’s finding that Bahadur-
Chhetri failed to demonstrate past persecution. Bahadur-Chhetri’s sworn
declaration and testimony established that over the course of about two months he
was beaten twice, received four threatening phone calls, and received one
threatening letter.3 The physical attacks involved punches, kicks, and one beating
with sticks, rather than any deadly weapons, and left Bahadur-Chhetri with a
bloody nose, scratches, swelling, and bruises, but no lasting injuries. While he also
received verbal death threats prior to and after the physical attacks, the abuse here
is not as severe as in De Santamaria, where the petitioner was kidnapped, her
groundskeeper was murdered for refusing to reveal her whereabouts, and was
beaten with the butts of guns. See De Santamaria, 525 F.3d at 1009. Further,
although his friend stated the Maoists had planned to murder Bahadur-Chhetri
during the second attack, Bahadur-Chhetri did not testify or present any evidence
compelling a conclusion the Maoists ever attempted to murder him. Unlike in
3 The IJ concluded that Bahadur-Chhetri had testified credibly and sufficiently corroborated his claim. 5 Case: 19-11476 Date Filed: 02/06/2020 Page: 6 of 16
Diallo, the record also does not establish the Maoists had the immediate ability to
carry out any of their death threats or that the letter and phone calls constituted
credible threats, rather than mere harassment or intimidation. See Diallo, 596 F.3d
at 1333-34. Cumulatively, although the evidence might permit a finding of past
persecution, it does not compel that finding. See Kazemzadeh, 577 F.3d at 1353.
Accordingly, we deny the petition as to this issue.
2. Future Persecution
Bahadur-Chhetri contends the IJ and BIA erred by failing to consider the
proper standards for a well-founded fear of future persecution, and that the record
compels a finding that he had a well-founded fear of future persecution. A well-
founded fear of persecution may be established by showing (1) past persecution
that creates a presumption of a “well-founded fear” of future persecution; (2) a
reasonable possibility of being singled out for persecution that cannot be avoided
by relocating within the subject country, if such relocation would be reasonable; or
(3) a pattern or practice in the subject country of persecuting members of a group
of which the petitioner is a part such that his fear of persecution is reasonable. 8
C.F.R § 208.13(b)(1), (2), (3)(i).
To establish eligibility for asylum, an applicant must show that he is unable
to avail himself of the protection of his home country. Lopez v. U.S. Att’y Gen.,
504 F.3d 1341, 1345 (11th Cir. 2007). If the asylum applicant alleges persecution
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by a private actor, rather than the government, failure to seek protection within his
home country is generally fatal to his claim. Id.; see Ayala v. U.S. Att’y Gen., 605
F.3d 941, 950 (11th Cir. 2010). The failure to seek protection in the home country
is excused, though, if the applicant “convincingly demonstrates that
[home-country] authorities would have been unable or unwilling to protect” him,
such that he could not rely on them. Ayala, 605 F.3d at 950.
Unless the persecution is by the government or is government-sponsored, a
petitioner who cannot demonstrate past persecution has the burden of showing it
would not be reasonable to relocate in his home country. 8 C.F.R
§ 208.13(b)(3)(i), (ii). In determining the reasonableness of relocation, “agency
regulations provide that the [IJ] and BIA should consider the factors set forth in 8
C.F.R. § 1208.16(b)(3).” Jeune, 810 F.3d at 805. These factors include, but are
not limited to, “whether the applicant would face other serious harm in the place of
suggested relocation; any ongoing civil strife within the country; administrative,
economic, or judicial infrastructure; geographical limitations; and social and
cultural constraints, such as age, gender, health, and social and familial ties.” 8
C.F.R § 1208.16(b)(3). “These factors may or may not be relevant, depending on
all the circumstances of the case, and are not necessarily determinative of whether
it would be reasonable for the applicant to relocate.” Id. We have upheld a
requirement the persecution be “country-wide” and have held that “it is not
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unreasonable to require a refugee who has an internal resettlement alternative in
his own country to pursue that option before seeking permanent resettlement in the
United States, or at least to establish that such an option is unavailable.”
Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1327 (11th Cir. 2001).
Bahadur-Chhetri advances multiple arguments on this issue, and we address
them in turn.
a. Persecution by Government Officials
As an initial matter, for the first time in this petition for review, Bahadur-
Chhetri contends that both the IJ and BIA incorrectly applied the well-founded fear
test for persecution by private actors, even though his persecutors were members of
a faction that now constitutes the government of Nepal. We lack jurisdiction to
consider this argument because Bahadur-Chhetri never argued to the BIA that it or
the IJ should have considered that the Maoists who attacked him were acting in an
official governmental capacity. See Amaya-Artunduaga v. U.S. Att’y Gen., 463
F.3d 1247, 1250 (11th Cir. 2006) (stating if a petitioner has failed to exhaust his
administrative remedies by failing to raise a claim before the BIA, we lack
jurisdiction to consider the claim). Instead, he argued the record established that
the government was unable or unwilling to protect him, citing the standard for
private-actor persecution, and submitted that the police’s failure to act on his
complaint was “indicative of [the] government’s unwillingness to control the
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Maoists.” See Lopez, 504 F.3d at 1345; Ayala, 605 F.3d at 950. Because Bahadur-
Chhetri never brought to the attention of the BIA his argument that his persecutors
should be considered government officials, it is unexhausted. See Amaya-
Artunduaga, 463 F.3d at 1250.
b. Reasonableness of Relocation Factors
Relying on Arboleda v. U.S. Attorney General, 434 F.3d 1220 (11th Cir.
2006), Bahadur-Chhetri asserts the IJ and BIA failed to mention the necessary
factors for determining reasonableness of relocation under 8 C.F.R. § 208.13(b)(3),
which constitutes reversible error. In Arboleda, the BIA had presumed past
persecution, putting the burden on the government to show that the petitioner could
reasonably relocate within his home country, and then concluded that internal
relocation was reasonable because the persecuting gang did not operate
nationwide. Id. at 1222, 1224. We determined the BIA erred in failing to consider
whether internal relocation would be reasonable for the petitioner even if the
persecutors did not operate countrywide. Id. at 1226. We held the BIA’s failure to
mention any of the other reasonableness factors listed in the regulations constituted
reversible error. Id.
In Jeune v. U.S. Attorney General, the petitioner had failed to prove past
persecution and therefore bore the burden of proving that it would not be
reasonable for him to relocate. 810 F.3d 792, 805 (11th Cir. 2006). We
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determined that, though the BIA’s order did not recite the specific reasonableness
factors listed in 8 C.F.R § 1208.16(b)(3),4 it clearly evidenced its awareness of the
factors and of the reasonableness requirement by citing to our decision in
Arboleda, which focused on the need to determine the reasonableness of relocation
and to consider the regulatory factors in doing so. Id. at 805-06. Moreover, we
noted the petitioner, in his brief to the BIA, offered no argument as to which
reasonableness factors were relevant in his case, did not identify any evidence
showing that relocation was unreasonable, and did not explain how the relocation
factors would support an argument that relocation was unreasonable. Id. As a
result, we held the BIA’s citation to Arboleda was enough to show it had properly
considered the reasonableness of the petitioner’s relocation. Id. at 806.
The IJ’s and BIA’s failure to explicitly mention the reasonableness of
relocation factors listed in 8 C.F.R. § 208.13(b)(3) does not constitute reversible
error. Unlike the petitioner in Arboleda, Bahadur-Chhetri failed to establish past
persecution and thus bore the burden of showing that it would not be reasonable to
relocate within Nepal. See Arboleda, 434 F.3d at 1224; 8 C.F.R. § 208.13(b)(3)(i).
However, although he cited the factors, Bahadur-Chhetri failed to offer any
argument as to how any of those reasonableness factors were relevant in his case,
4 The 8 C.F.R. § 1208.16(b)(3) reasonableness of relocation factors within the withholding of removal regulations are identical to the factors contained in 8 C.F.R. § 208.13(b)(3) within the asylum regulations. 10 Case: 19-11476 Date Filed: 02/06/2020 Page: 11 of 16
present any evidence that relocation would be unreasonable, or explain how any of
the factors would support an argument that relocation was unreasonable. See
Jeune, 810 F.3d at 805-06. Although neither the BIA nor the IJ cited to a case that
specifically mentioned the reasonableness factors, the IJ stated Bahadur-Chhetri
bore the burden of proving relocation was unreasonable and cited to Mazariegos,
which mainly concerns the countrywide requirement for relocation but also
discusses the reasonableness of relocation. Given Bahadur-Chhetri’s failure to
meet his burden of proof, this analysis was enough to show the IJ and BIA
properly considered the reasonableness of relocation. See Jeune, 810 F.3d at 806.
c. Objective and Subjective Fear
Bahadur-Chhetri argues that neither the IJ nor the BIA considered whether
his fears were subjectively genuine and objectively reasonable, the proper
standards for making the well-founded fear of persecution determination. See
Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006) (stating to establish
eligibility for asylum based on a well-founded fear of future persecution, the
petitioner must prove that he has a “subjectively genuine and objectively
reasonable” fear of persecution because of a protected ground). The IJ and BIA
did not err in failing to discuss whether Bahadur-Chhetri had an objective and
subjective fear because they found that Bahadur-Chhetri failed to show the police
were unable to protect him and that relocation was unreasonable, as discussed
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below. Therefore, the IJ and BIA did not need to make an explicit finding about
his subjective and objective fear, as they found his claim of a well-founded fear of
persecution failed for other reasons. See Mazariegos, 241 F.3d at 1327 (holding a
petitioner must establish that internal location would be unreasonable to establish a
well-founded fear); Lopez, 504 F.3d at 1345 (holding a petitioner must show he is
unable to avail himself of the protection of his home country to establish a well-
founded fear).
d. Police Protection
Bahadur-Chhetri asserts the police’s inaction regarding his first police report
demonstrates their unwillingness to protect him and justifies his nonreporting of
the second attack. The record might compel a finding that the Nepali police were
unable or unwilling to protect Bahadur-Chhetri. The police assured Bahadur-
Chhetri that they would find and punish his attackers after the first attack, and
Bahadur-Chhetri gave the police the name of the Maoist who threatened him over
the phone and attacked him, but the police did not even go into the village to
attempt to find the attacker. Bahadur-Chhetri never filed a police report for the
second attack, given the history of police inaction and corruption in Nepal, as well
as the fact they did not follow up on his first report. However, that the evidence
might compel a different conclusion on this issue does not matter, because
Bahadur-Chhetri did not demonstrate it was unreasonable to internally relocate.
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e. Internal Relocation
Bahadur-Chhetri contends the BIA’s assumption that Maoist persecution is
not countrywide is contrary to the record and that, as an avowed enemy of the
Maoists, he would not be safe anywhere in Nepal, which is now governed by the
Maoist Party. He highlights numerous reports in the record showing that Maoists
remain a threat to their political opponents and that the Nepali government cannot
protect its citizens from the Maoists.
The record does not compel a finding that Bahadur-Chhetri showed that he
could not reasonably relocate within Nepal. Bahadur-Chhetri stayed in both
Kushma and Kathmandu without experiencing any physical attacks, he was able to
peacefully cast his vote for the Nepali Congress Party (NCP) in his home village,
and his entire immediate family remained safe in his home village, despite also
supporting the NCP. He was only attacked in and around his home village, the
letters were sent to his home address, and the threatening phone calls were made to
his cellphone—not to any landlines of places he stayed outside his home village.
Moreover, the record shows that Bahadur-Chhetri is a low-level campaigner and
supporter of the NCP, not a high-ranking official such that it would be reasonable
to assume the Maoists would follow him throughout the country. Because the
record does not compel a finding that internal relocation is unreasonable, Bahadur-
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Chhetri has failed to meet the standard for eligibility for asylum. Accordingly, we
deny his petition as to this issue.5
B. CAT Relief
Bahadur-Chhetri argues the BIA clearly erred by finding he failed to prove
he would more likely than not be tortured if he returned to Nepal. He contends the
IJ did not consider all of the evidence relevant to the possibility of future torture,
including the Country Reports or background materials and the brutal beatings
inflicted on him by the Maoists. Further, Bahadur-Chhetri asserts the Maoists,
who are now a part of the government, have inflicted acts on him specifically
intending to cause him physical and mental torture.
The United States has agreed, pursuant to Article 3 of the CAT, not to
“expel, extradite, or otherwise effect the involuntary return of any person to a
country in which there are substantial grounds for believing the person would be in
danger of being subjected to torture.” The Foreign Affairs Reform and
Restructuring Act of 1998, Pub. L. No. 105-277, § 2242(a), 112 Stat. 2681 (1998).
The burden of proof is on the petitioner to establish that it is more likely than not
5 To establish eligibility for withholding of removal, the petitioner must show that, if he returns to his home country, it is more likely than not that he will be persecuted or tortured on account of race, religion, nationality, membership in a particular social group, or political opinion. Sepulveda, 401 F.3d at 1232. This standard is significantly higher than the asylum standard, and a petitioner that cannot meet the asylum standard usually cannot meet the standard for withholding of removal. Al Najjar, 257 F.3d at 1292-93. As Bahadur-Chhetri failed to meet the standard for eligibility for asylum, he has also failed to meet the more stringent standard for eligibility for withholding of removal. See id. 14 Case: 19-11476 Date Filed: 02/06/2020 Page: 15 of 16
that he would be tortured if removed to the proposed country of removal. 8 C.F.R.
§ 208.16(c)(2). “[T]o constitute torture, an act must be specifically intended to
inflict severe physical or mental pain or suffering.” Id. at § 208.18(a)(5). “An act
that results in unanticipated or unintended severity of pain and suffering” does not
qualify as torture. Id. Moreover, to obtain CAT relief, the petitioner must
demonstrate that the torture would be inflicted by the government or that the
government would acquiesce to the torture by being aware of it and failing to
intervene. Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir.
2004).
Substantial evidence also supports the finding Bahadur-Chhetri was
ineligible for CAT relief. The record does not compel a finding that Bahadur-
Chhetri would more likely than not be tortured if he returned to Nepal, and the
record also does not compel a finding that the government perpetrated the alleged
torture or acquiesced to it. Additionally, although no clear legal guidelines exist
for punishing torturers in Nepal, the Nepal government allows for compensation to
victims of torture through the Torture Compensation Act. Therefore, Bahadur-
Chhetri is not eligible for relief under CAT and we deny his petition as to this
issue.
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II. CONCLUSION
Substantial evidence supports the finding that the attacks and threats on
Bahadur-Chhetri by members of the Maoist Party were not extreme enough to
constitute past persecution. Further, Bahadur-Chhetri did not exhaust his claim
that the Maoists were not private actors, and the IJ and BIA did not err by not
explicitly discussing the regulatory factors for the reasonableness of internal
relocation. Moreover, the IJ and the BIA were not required to make explicit
findings about his subjective and objective fear because they determined on other
grounds that he failed to meet his burden of showing a well-founded fear of future
persecution. Substantial evidence supports the IJ’s and BIA’s determination that
Bahadur-Chhetri failed to meet this burden because, although the record may
compel a finding that the government was unable or unwilling to protect him, it
does not compel a finding that he was unable to safely and reasonably relocate
within Nepal. Substantial evidence also supports the IJ’s and BIA’s denial of
withholding of removal and CAT relief. Accordingly, we deny the petition.
PETITION DENIED.