Keshav Bahadur Malla v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 3, 2019
• Docket: 17-15100
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-15100 Non-Argument Calendar ________________________

Agency No. A209-153-249

KESHAV BAHADUR MALLA,

Petitioner, versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(July 3, 2019)

Before ROSENBAUM, JILL PRYOR and JULIE CARNES, Circuit Judges.

PER CURIAM:

Keshav Malla seeks review of the Board of Immigration Appeals’ (“BIA”)

final order affirming the Immigration Judge’s (“IJ”) denial of his applications for Case: 17-15100 Date Filed: 07/03/2019 Page: 2 of 12

asylum, withholding of removal, and relief under the United Nations Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(“CAT”).

Malla contends that the IJ erred in concluding that he failed to prove that the

government of Nepal is unable or unwilling to protect him from persecution—

therefore making him eligible for asylum. Malla also argues that he met the

standard for withholding of removal because it is more likely than not that he will

suffer persecution if he returns to Nepal. Finally, he argues that if returned to

Nepal, he is more likely than not to be tortured by or with the consent of a public

official and qualifies for relief under the CAT.

We deny Malla’s petition because we agree with the BIA that substantial

evidence supports the IJ’s determination that Malla failed to show the government

of Nepal is unable or unwilling to protect him. We also agree that Malla has not

satisfied the standard for withholding of removal. Finally, we agree with the BIA

that Malla is not entitled to CAT relief. We thus deny Malla’s petition for review.

I.

Malla, a Nepalese citizen, was a member of the Nepali Congress Party

(“NCP”). In that capacity, he prepared and distributed pamphlets, organized

meetings, canvassed for NCP candidates, and spoke out against the Maoist party.

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Malla received a letter from the Maoist party demanding that he leave the

NCP, support the Maoists, and pay the Maoists—and threatening him with

physical violence if he did not comply. Malla was afraid, but he continued

working with the NCP.

Soon after, when Malla was on his way home from an NCP meeting, four

Maoists stopped him in the road. They asked Malla whether he would comply

with the demands in their letter. Malla refused. The four men beat him, hitting his

face with their fists and a stick. They continued until he was bleeding, then one

man commanded another to shoot him.

Malla capitulated, said that he would comply with the Maoists’ demands,

and asked for more time. The Maoists gave Malla five days to comply and said

they would kill him if he did not comply. They detained him all night, releasing

him in the morning. Malla feared for his life.

In the morning, villagers took Malla to a hospital, where he filed a police

report. Malla had little hope that the police would help him, though, because they

rarely came to his faraway village, were afraid of the Maoists, and selectively

enforced the law. The police never followed up with Malla about his report.

Malla was released from the hospital after two days. Cognizant of the

Maoist’s five-day warning, he decided not to return to the village. Instead, he went

to his uncle’s place, where he remained in hiding for roughly two weeks. Malla

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went into hiding because he knew that he could not join the Maoists; he didn’t

agree with their party.

While he was in hiding, the Maoists went to Malla’s home—where his father

and children were—and asked for him. When Malla’s father would not answer,

the Maoists beat him, threatened his family, and said that they would shoot Malla

if they found him. Malla’s father told him to leave and go to a secure place.

So Malla left his uncle’s house and went to Kathmandu. Even there, he did

not feel safe. He knew Maoists lived everywhere in Kathmandu. When he met

with NCP members in Kathmandu, they told him that he needed to be careful

because he was a Maoist target. Malla was afraid. Nowhere in Nepal was safer

than Kathmandu, but the Maoists had a network there. He believed that if he

stayed in Nepal, he would be captured and killed.

Malla fled Nepal, eventually entering the United States near Calexico,

California. Soon after, he received a notice to appear from the Department of

Homeland Security (“DHS”). In the notice, DHS alleged that Malla was in the

United States without authorization. That same day, an asylum officer conducted a

credible fear interview with Malla. He determined that Malla had a credible fear of

persecution based on his political opinion. The officer referred the case to an

immigration court where Malla would be allowed to seek asylum, withholding of

removal, and relief under the CAT.

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The Immigration Judge’s Decision

Malla appeared before an IJ to plead his case. The IJ denied Malla’s

applications. He found that Malla’s evidence was not credible, but even if it was,

Malla had not met his burden of proving his well-founded fear of persecution.

The IJ first pointed out that Malla’s two hospital records showed

inconsistent admittance dates—one on November 2, 2015; the other on November

2, 2016. The IJ found that the two documents did “not support [Malla’s] claim and

cast serious doubt on [his] credibility.” Doc. 9 at 60.1

The IJ then noted a second inconsistency: that Malla told his father that he

had been assaulted to the point of unconsciousness, but he told the IJ that he had

not been assaulted to the point of unconsciousness. Because of these two

inconsistencies, the IJ voiced “serious doubt about the credibility of the documents

submitted in this case.” Doc. 9 at 61.

But even if those documents were not inconsistent, the IJ would have denied

Malla’s asylum application anyway for three reasons. First, the IJ concluded that

“threats, without more, do not rise to the level of persecution.” Id. Second, Malla

had not shown that the government was unwilling or unable to control the Maoist

Party that threatened him. The IJ looked to the State Department’s 2016 Human

Rights Report, which indicated that civilian authorities maintain effective control

1 Citations in the form “Doc. #” refer to entries on this Court’s docket.

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over security forces 2 and have routinely held accountable officials and security

forces accused of violating the law. On this basis, the IJ determined that the record

contained evidence that the Nepalese police protect individuals like Malla and that

Malla had not shown it would be futile for him to file a police report. Third, Malla

had not shown that he was unable to relocate elsewhere within Nepal. In

particular, the IJ noted that Malla had no problems living in Kathmandu, Malla’s

children remain in boarding school in Nepal, and none of Malla’s family members

has suffered persecution since Malla left.

The IJ concluded that Malla’s asylum application was frivolous based on the

submission of the hospital records, which the IJ found inconsistent. That

determination, if not reversed, rendered Malla permanently ineligible to receive

asylum benefits. 8 U.S.C. § 1158(d)(4)(A), (d)(6). The IJ further concluded that

because Malla had not satisfied the burden for asylum, he could not satisfy the

higher threshold for withholding of removal.

The Board of Immigration Appeals Decision

2 The State Department’s 2016 Human Rights Report for Nepal does not define the phrase “security forces.” Doc. 9 at 154. Based on the rest of the report, however, the State Department appears to use this phrase to refer generally to the police, paramilitary, intelligence, and other forces that exert power on behalf of the state. The report identifies those forces in Nepal as including the Nepal Police, the Armed Police Force, and the Nepal Army. Doc. 9 at 161.

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Malla appealed the IJ’s decision to the BIA. The BIA dismissed the appeal

in part and sustained it in part.

The BIA agreed that Malla had failed to show that the government of Nepal

was unable or unwilling to protect him. The BIA emphasized that although Malla

had filed a police report, the police were unable to follow up on that report because

Malla left the area shortly after filing it. And the BIA referenced the State

Department’s 2016 Human Rights Report, which showed that the government of

Nepal is working to maintain control over security forces. Thus, the BIA

concluded, Malla had not met his burden of proving his asylum case. The BIA

agreed that because Malla did not meet the lower burden for asylum, he could not

meet the more stringent standard for withholding of removal under the CAT.

The BIA disagreed, however, that Malla had filed a frivolous asylum

application. Even though Malla’s hospital records contained discrepancies, the

BIA considered these discrepancies insufficient to conclude that he engaged in

deliberate fabrication. Malla filed a timely petition for review.

II.

We review only the BIA’s decision, not the IJ’s, except where the BIA

expressly adopts the IJ’s decision or assumes its reasoning. Al Najjar v. Ashcroft,

257 F.3d 1262, 1284 (11th Cir. 2001). In such cases, the Court reviews both

decisions.

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The Court reviews legal conclusions de novo, Mehmeti v. U.S. Att’y Gen.,

572 F.3d 1196, 1199 (11th Cir. 2009); it reviews factual findings under the

deferential substantial evidence test, Kazemzadeh v. U.S. Att’y Gen., 577 F.3d

1341, 1350-51 (11th Cir. 2009). We do not re-weigh evidence that was before the

BIA, nor do we reverse factual findings where the record might support a different

conclusion. Id. at 1351; Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004)

(en banc). Rather, we reverse only where we “find that the record not only

supports reversal, but [also] compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d

1283, 1287 (11th Cir. 2003). 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).

An applicant for asylum must meet the Immigration and Nationality Act’s

(“INA”) definition of a refugee. INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A

refugee is a person “who is unable or unwilling to return to, and is unable or

unwilling to avail himself or herself of the protection of [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

. . . .” INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The applicant has the

burden of proving his refugee status under the statute. INA § 208(b)(1)(B),

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8 U.S.C. § 1158(b)(1)(B); 8 C.F.R. § 208.13(a). He does so by showing “(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) (internal quotation marks omitted).

When alleging persecution by a private actor, an applicant for asylum 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). An applicant’s failure to report the

persecution to local government authorities is generally fatal to an asylum claim.

Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1345 (11th Cir. 2007). But that failure is

excused when the applicant can establish that reporting the persecution would have

been futile. Id.

To establish eligibility for withholding of removal under the INA, the

applicant must show that, if removed, his life or freedom will be threatened

because of his race, religion, nationality, membership in a particular social group,

or political opinion. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir.

2005). He must show that it is more likely than not that he will be persecuted or

tortured upon returning to his country—a “more stringent” standard than the

asylum standard. Id.

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Finally, to establish eligibility for withholding of removal under the CAT,

the applicant must show that it is “more likely than not that he or she would be

tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2).

III.

We conclude that the BIA’s determination that Malla was ineligible for

asylum is supported by substantial evidence on the record as a whole. We must

therefore deny Malla’s petition. INA § 208(b)(1)(B)(i), 8 U.S.C.

§ 1158(b)(1)(B)(i).

The record does not compel the conclusion that the police were unable or

unwilling to protect Malla. This is for three reasons. First, the State Department

report indicates that the police conduct investigations and protect the rule of law.

The BIA is entitled to rely “heavily” on the State Department reports. Reyes-

Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1243 (11th Cir. 2004). And although

Malla submitted statements from his friends and family rebutting the claims in the

State Department’s 2016 Human Rights Report, the BIA is entitled to give such

statements—statements of interested persons who are not subject to cross

examination—little weight. See Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209,

215 (BIA 2010). Second, the BIA rightly determined that the police’s failure to

make an arrest did not show they could not protect Malla. The failure of police to

make an arrest does not prove that they did not investigate. Sama v. U.S. Att’y

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Gen., 887 F.3d 1225, 1234 (11th Cir. 2018). Third, Malla went into hiding

immediately after filing his police report. This fact provides another plausible

explanation for why Malla heard nothing further from the police: he “left the area

shortly after the attack.” Doc. 9 at 4. We may not re-weigh the evidence, and the

BIA did not clearly err in its weighing of the evidence. Kazemzadeh, 577 F.3d at

1351. Because the record does not compel the conclusion that the Nepalese

government was unable or unwilling to protect Malla, we affirm the BIA’s denial

of his asylum application.

For similar reasons, substantial evidence supports the BIA’s denial of

Malla’s CAT claim. “To demonstrate eligibility for CAT protection, an applicant

must show that it is more likely than not that []he will be tortured in [his] home

country at the hands of [his] government or that [his] government will acquiesce in

the torture.” Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th Cir. 2004) (per

curiam). Because Malla failed to demonstrate that the Nepalese government was

unable or unwilling to protect him from private actors, the BIA reasonably

concluded that Malla failed to demonstrate that it was more likely than not that the

Nepalese government would consent to or acquiesce in his torture. Malla thus

failed to establish eligibility for CAT relief. 8 C.F.R. §§ 208.18(a)(1),

208.16(c)(2).

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We accordingly affirm the BIA’s denial of Malla’s claims for asylum,

withholding of removal, and CAT relief.

PETITION DENIED.