Kapur Lama v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 13, 2018
• Docket: 17-15387
• Status: Unpublished

Opinion

Case: 17-15387 Date Filed: 08/13/2018 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-15387 Non-Argument Calendar ________________________

Agency No. A209-842-067

KAPUR LAMA,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(August 13, 2018)

Before NEWSOM, BRANCH, and FAY, Circuit Judges.

PER CURIAM: Case: 17-15387 Date Filed: 08/13/2018 Page: 2 of 10

Kapur Lama, a native and citizen of Nepal, petitions for review of the Board

of Immigration Appeals’s order affirming the Immigration Judge’s denial of his

applications for asylum, withholding of removal under the Immigration and

Nationality Act, and protection under the United Nations Convention Against

Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. Lama

principally argues that the BIA erred in affirming the IJ’s finding that he failed to

show that the government of Nepal is unable or unwilling to protect him from

persecution by the Maoist political faction because of his participation in the

affairs of a rival party, the Nepal Congress Party. Lama also argues that the IJ

abused its discretion and denied him due process by refusing to continue his final

hearing so that he could obtain a new attorney and documents to support his claims

for relief. We will address each contention in turn.

I

We review only the BIA’s decision, except to the extent that it expressly

adopts the IJ’s opinion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.

2001). To the extent the BIA adopts the reasoning of the IJ, we review the IJ’s

decision as well. Id. Here, because the BIA agreed with the IJ’s reasoning, we

review the decisions of both the IJ and BIA. See id.; see also Mu Ying Wu v. U.S.

Att’y Gen., 745 F.3d 1140, 1153 (11th Cir. 2014) (“We have found that the BIA

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expressly adopted an IJ’s decision where the BIA either agreed with the IJ’s

findings or relied on the IJ’s reasoning ….”).

We review factual determinations under the substantial-evidence standard,

which requires us to “view the record evidence in the light most favorable” to the

BIA’s decision and to “draw all reasonable inferences in favor of that decision.”

Adefemi v. Ashcroft, 386 F.3d 1022, 1026–27 (11th Cir. 2004) (en banc). To

reverse a factual determination, we “must find that the record not only supports

reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th

Cir. 2003). We do not re-weigh the evidence that was before the BIA.

Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1351 (11th Cir. 2009). We must

affirm the BIA’s decision “if it is supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” D-Muhumed v. U.S.

Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004) (internal quotation marks omitted).

A

An alien who arrives in or is present in the United States may apply for

asylum. 8 U.S.C. § 1158(a)(1). The Attorney General or Secretary of the

Department of Homeland Security has discretion to grant asylum if the alien meets

the INA’s definition of “refugee.” Id. § 1158(b)(1). The INA defines “refugee”

as:

any person who is outside any country of such person’s nationality . . . who is unable or unwilling to return to, and is unable or unwilling to 3 Case: 17-15387 Date Filed: 08/13/2018 Page: 4 of 10

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.

Id. § 1101(a)(42)(A). The applicant bears the burden of proving statutory

“refugee” status. 8 C.F.R. § 208.13(a); Al Najjar, 257 F.3d at 1284. “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).

An applicant for asylum who alleges persecution by a private actor must

prove that his home country is unable or unwilling to protect him. Ayala v. U.S.

Att’y Gen., 605 F.3d 941, 950 (11th Cir. 2010). This is because “[t]he statutes

governing asylum and withholding of removal protect … against persecution … by

non-governmental groups that the government cannot control.” Ruiz, 440 F.3d at

1257. While the failure to report persecution to local government authorities

generally is fatal to an asylum claim, that failure may be excused where the

petitioner convincingly demonstrates that those authorities would have been unable

or unwilling to protect him and for that reason he could not rely on them. Lopez v.

U.S. Att’y Gen., 504 F.3d 1341, 1345 (11th Cir. 2007).

To qualify for withholding of removal, a petitioner must establish that his

“life or freedom would be threatened” in his country because of his “race, religion,

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nationality, membership in a particular social group, or political opinion.” 8

U.S.C. § 1231(b)(3)(A); see also Mendoza, 327 F.3d at 1287. The petitioner must

show that it is more likely than not that he will be persecuted on account of a

protected ground if returned to his home country. Rodriguez v. U.S. Att’y Gen.,

735 F.3d 1302, 1308 (11th Cir. 2013). Where a petitioner fails to establish

eligibility for asylum, he has necessarily failed to meet the higher standard for

withholding of removal. Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1177 (11th Cir.

2008).

“To establish eligibility for CAT relief, an applicant must show that it is

more likely than not that he will be tortured by, or with the acquiescence of,

government officials if returned to the designated country of removal.” Todorovic

v. U.S. Att’y Gen., 621 F.3d 1318, 1324 (11th Cir. 2010); see also 8 C.F.R. §

1208.16(c)(2). We have affirmed the BIA’s denial of a CAT claim where a

petitioner had also failed to show that he had a well-founded fear of persecution

sufficient to support an asylum claim. Al Najjar, 257 F.3d at 1303.

B

Substantial evidence supports the BIA’s determination that Lama is not

eligible for asylum because he did not “persuasively establish[] that the harm he

suffered and fears in Nepal was inflicted by the government or by a non-

governmental actor that the government is unable or unwilling to control.” Lama

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himself testified that the Nepali government—in which his party (the Nepali

Congress Party) currently holds a majority of the political power—has agreed to a

power-sharing arrangement with the Maoist faction, and that he has never

personally reported to Nepali authorities that the Maoists attacked him. And while

the 2016 Human Rights Report for Nepal concludes that the Maoists have

committed crimes that went unpunished, most of those crimes appear to have been

committed during a 10-year civil conflict that occurred between 1996 and 2006.

Moreover, the report does not indicate that Maoist attacks on members of the

Nepali Congress Party were common in the year covered by the report or that

Maoists had recently committed any such attacks without prosecution by the

government. Finally, the report states that the Nepali police and security forces are

controlled by the government, which is led by the Nepali Congress Party.

Lama’s counterarguments are not persuasive, and in any event, cannot

overcome the deference owed to the BIA’s determination. First, although Lama

argues that the Nepali authorities took no action after his father reported that Lama

had been “stabbed” by Maoists, the documentary evidence, including the 2016

Human Rights Report, does not show that the Nepali government is unwilling or

unable to control the Maoists. Nor did Lama’s testimony indicate why the police

did not follow up on the reported attack. Second, although Lama contends that the

2016 Human Rights Report shows that the Nepali government has not prosecuted

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Maoists for certain crimes, as explained above, those crimes occurred primarily

between 1996 and 2006. Finally, while Lama asserts that the 2016 report shows

that Nepal experiences police corruption, the report also indicates that the police

are controlled by the government, which is led by Lama’s political party, the

Nepali Congress Party.

In short, this Court does not re-weigh the evidence that was before the BIA,

Kazemzadeh, 577 F.3d at 1351, and in any event, there is no evidence in the record

that would compel this Court to reverse the BIA’s determination that Lama has not

shown that the Nepali government is unwilling or unable to prevent persecution by

the Maoists. Id. at 1351–52.

Next, because substantial evidence supports the BIA and IJ’s findings that

Lama had not shown that he was eligible for asylum, substantial evidence also

supports the BIA and IJ’s determinations that he could not carry his more stringent

burden of showing that he was entitled to withholding of removal. Ruiz, 440 F.3d

at 1257. And finally, because Lama sought CAT relief on the same basis as his

asylum claim, substantial evidence also supports the BIA and IJ’s findings that he

had failed to meet his burden of showing that it is more likely than not that he

would be tortured if he were returned to Nepal. Al Najjar, 257 F.3d at 1303.

II

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We typically review an IJ’s denial of a motion for a continuance for an

abuse of discretion. See Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1362 (11th Cir.

2006). But we lack jurisdiction to consider a claim raised in a petition for review

“unless the petitioner has exhausted his administrative remedies with respect

thereto.” Amaya-Artundaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir.

2006) (citing 8 U.S.C. § 1252(d)(1)). In other words, if an alien fails to challenge

an IJ’s findings or rulings in his appeal to the BIA, we lack jurisdiction to consider

a challenge on those grounds in his petition for review. Id.

Separately, although there is no Sixth Amendment right to counsel in

removal proceedings, aliens do enjoy the right to effective assistance of counsel

pursuant to the Fifth Amendment’s Due Process Clause. See Mejia Rodriguez v.

Reno, 178 F.3d 1139, 1146 (11th Cir. 1999). Pursuant to agency regulations, an IJ

must advise an alien of his right to counsel and the availability of free legal

services, ascertain whether the alien desires counsel, and ensure that the alien has

received a list of free legal service programs. 8 C.F.R. § 1240.10(a). To prevail on

a due process challenge to a removal proceeding, an alien must demonstrate that

the alleged misconduct resulted in “substantial prejudice.” Avila v. U.S. Att’y

Gen., 560 F.3d 1281, 1285 (11th Cir. 2009). To establish substantial prejudice, the

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petitioner must show that the alleged due process violation would have affected the

outcome of the case. Id. 1

As a preliminary matter, to the extent that Lama argues on appeal that the IJ

abused its discretion—as opposed to violated his due process rights—when it

denied him a continuance during his final merits hearing, we lack jurisdiction to

consider that argument, and therefore must dismiss Lama’s petition in that respect,

because he did not assert that particular argument before the BIA. Amaya-

Artundaga, 463 F.3d at 1250.

We do have jurisdiction to consider the issue that Lama actually exhausted

before the BIA: whether the IJ violated his due process right to have an attorney

present at his removal proceedings by refusing to grant him a continuance during

his final merits hearing. See id. We conclude that the IJ did not violate Lama’s

due process rights when it refused to continue his case—for the sixth time—so that

he could obtain another attorney after he fired his first one a few days before his

final merits hearing. The IJ more than complied with the constitutional and

regulatory requirements by repeatedly advising Lama that he had a right to obtain

counsel and that free or reduced-cost legal services were available to him, and by

granting Lama several continuances that allowed him to have approximately seven

1 We review de novo constitutional due process claims. Avila, 560 F.3d at 1285. 9 Case: 17-15387 Date Filed: 08/13/2018 Page: 10 of 10

months to obtain an attorney and the documents he felt were relevant to his claims

for relief. 8 C.F.R. § 1240.10(a).

Furthermore, Lama has failed to carry his burden of demonstrating that his

inability to obtain more documents and a new attorney substantially prejudiced

him. First, as explained above, the BIA determined that Lama was not eligible for

relief because he did not show that the government of Nepal was unable or

unwilling to protect him from persecution. The documents that Lama claims he

sought to obtain from his family in Nepal—his political membership card, hospital

records, police reports, and documents related to his association with a voluntary

social organization—have no bearing on that issue. Second, Lama has failed to

show how an attorney could have persuaded the IJ to conclude that he was eligible

for asylum, especially in light of the 2016 Human Rights Report’s lack of any

indication that the Nepali government had recently allowed Maoists to attack other

civilians with impunity.

PETITION DENIED IN PART, AND DISMISSED IN PART.