Sharma v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 6, 2021
• Docket: 20-9554
• Status: Unpublished

Opinion

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

FOR THE TENTH CIRCUIT April 6, 2021 _________________________________ Christopher M. Wolpert Clerk of Court SANTOSH SHARMA,

Petitioner,

v. No. 20-9554 (Petition for Review) MERRICK B. GARLAND, United States Attorney General, *

Respondent. _________________________________

ORDER AND JUDGMENT ** _________________________________

Before PHILLIPS, McHUGH, and CARSON, Circuit Judges. _________________________________

Santosh Sharma, a native and citizen of Nepal, applied for asylum,

withholding of removal, and relief under the Convention Against Torture (CAT)

based on his political opinion. The Board of Immigration Appeals (Board or BIA)

affirmed the immigration judge’s denial of relief, and Sharma now petitions for

* On March 11, 2021, Merrick B. Garland became Attorney General of the United States. Consequently, his name has been substituted for William P. Barr as Respondent, per Fed. R. App. P. 43(c)(2). ** After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. review of the Board’s decision. Exercising jurisdiction under 8 U.S.C. § 1252(a), we

deny the petition for review.

BACKGROUND

Sharma joined the Nepali Congress Party in March 2017. On November 19,

2017, just before an election, he was approached by members of the Young

Communist League (YCL), the youth arm of the Communist Party of Nepal (the

Maoists). They asked him to leave the Nepali Congress Party and campaign for the

Maoists. He did not do so, and a few days later, on November 23, the YCL members

returned and punched, kicked, and beat him with sticks. He suffered cuts on his arm

and hands, but he did not lose consciousness or seek medical attention other than

treatment by a health assistant at home. He did not report this incident to authorities.

Instead, he moved to his aunt’s house, several hours away from his parents’ village.

Nearly a year later, on November 12, 2018, Sharma was beaten by a different

group of YCL members. They told him “you can’t hide from us. Anywhere you go,

we will find you. You can’t be safe anywhere.” Admin. R. Vol. 1 at 119 (internal

quotation marks omitted). One person hit him in the back with a helmet, causing him

to fall down, and then the group punched and kicked him. He suffered redness and

swelling, but “did not have wounds” and “managed to run away.” Id. at 120. He

again did not seek medical attention or report the incident to authorities. He hid at a

neighbor’s home for two days and then fled to Delhi, India.

After traveling through numerous countries, Sharma entered the United States

and applied for asylum, withholding of removal, and protection under the CAT. The

2 immigration judge found Sharma not fully credible. He denied asylum and

withholding of removal on the grounds that the beatings were not severe enough to

amount to past persecution, and that Sharma had not established a well-founded fear

of future persecution because he could relocate within Nepal, to the metropolitan area

of Kathmandu. The immigration judge denied the CAT claim because Sharma did

not demonstrate it was more likely than not that he would be subjected to torture

should he be returned to Nepal.

On appeal, the Board assumed that Sharma testified credibly but nevertheless

upheld the immigration judge’s decision. Regarding asylum, the Board stated that

“[e]ven when considered cumulatively, [the] two beatings do not rise to the level of

persecution.” Id. at 4. It further noted that while “physical harm is not the only

means by which persecution may be established, [Sharma] has not alleged on appeal

that anything else occurred that may be considered in determining the past

persecution analysis.” Id. Rejecting Sharma’s assertion that the YCL is a

government-sponsored group, the Board also held that the immigration judge did not

clearly err in finding that Sharma could avoid future harm by relocating within Nepal

and that such relocation would be reasonable. Because he did not establish past

persecution or a well-founded fear of future persecution, the Board rejected not only

his asylum claims, but also his withholding of removal and CAT claims. The Board

therefore dismissed his appeal.

Sharma now petitions for review of the Board’s decision.

3 DISCUSSION

We review the Board’s legal conclusions de novo and its factual findings for

substantial evidence. See Rivera-Barrientos v. Holder, 666 F.3d 641, 645 (10th Cir.

2012). Under the substantial-evidence standard, “[t]he agency’s ‘findings of fact are

conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary.’” Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020) (quoting 8 U.S.C.

§ 1252(b)(4)(B)).

I. Asylum Claim

To succeed with his asylum claim, Sharma must establish that he is a refugee.

See 8 U.S.C. § 1158(b)(1)(A). A refugee is a person who is “unable or unwilling to

return to the country of origin 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.” Rivera-Barrientos, 666 F.3d at 645-46 (emphasis

and internal quotation marks omitted). “Persecution is the infliction of suffering or

harm upon those who differ . . . in a way regarded as offensive and must entail more

than just restrictions or threats to life and liberty.” Ritonga v. Holder, 633 F.3d 971,

975 (10th Cir. 2011) (internal quotation marks omitted). “[P]ersecution may be

inflicted by the government itself, or by a non-governmental group that the

government is unwilling or unable to control.” Id. (internal quotation marks

omitted).

“In this circuit, the ultimate determination whether an alien has demonstrated

persecution is a question of fact, even if the underlying factual circumstances are not

4 in dispute and the only issue is whether those circumstances qualify as persecution.”

Zhi Wei Pang v. Holder, 665 F.3d 1226, 1231 (10th Cir. 2012) (internal quotation

marks omitted). “The BIA’s determination that an applicant was not eligible for

asylum must be upheld if supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” Rodas-Orellana v. Holder, 780 F.3d

982, 990 (10th Cir. 2015) (brackets and internal quotation marks omitted). Applying

these principles, this court has upheld findings of no past persecution even though the

petitioner suffered some physical injury in attacks or assaults on account of a

protected ground. See, e.g., Sidabutar v. Gonzales, 503 F.3d 1116, 1124 (10th Cir.

2007); Tulengkey v. Gonzales, 425 F.3d 1277, 1280-81 (10th Cir. 2005); Kapcia v.

INS, 944 F.2d 702, 704, 708 (10th Cir. 1991).

Sharma’s opening brief does not address whether his physical injuries from the

attacks establish past persecution. Rather, he asserts that “[a]s the Board

acknowledged, there is no requirement of significant physical harm to satisfy the

definition of persecution. Here, the Maoists not only beat the Petitioner, they

threatened him in a way that menaced him, and made him afraid of even worse

attacks.” Opening Br. at 17. But Sharma never argued before the Board that the

YCL’s threats constituted past persecution, either alone or together with his physical

injuries. To the contrary, the Board observed that Sharma did not “allege[] on appeal

that anything else [beyond physical harm] occurred that may be considered in

determining the past persecution analysis.” Admin R. Vol. 1 at 4.

5 A petitioner must exhaust arguments before the Board before this court can

consider them. See 8 U.S.C. § 1252(d)(1). “It is not enough to go through the

procedural motions of a BIA appeal, or to make general statements in the notice of

appeal to the BIA, or to level broad assertions in a filing before the Board. To satisfy

§ 1252(d)(1), an alien must present the same specific legal theory to the BIA before

he or she may advance it in court.” Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237

(10th Cir. 2010) (citation and internal quotation marks omitted). Although Sharma

mentioned the threats in his filings, he never explicitly argued before the Board that

the threats supported a finding of past persecution. He therefore failed to exhaust

this argument. See Birhanu v. Wilkinson, __ F.3d __, 2021 WL 868499, at *4

(10th Cir. Mar. 9, 2021) (holding that noncitizen’s two citations to a statute, “without

specifically explaining why [the statute] entitles him to relief, did not fairly present

his legal theory to the BIA”). We dismiss this portion of the petition. See id.

Sharma asserts that “[t]he people who attacked [him] were Maoists, and

members of a political party that now governs Nepal.” Opening Br. at 17. But the

Board explicitly rejected his proposition that the YCL members who attacked him

could be considered part of the government: “the fact that the YCL supported the

political party that is now in power does not convert the youth group, particularly its

violent tendencies, into a government-sponsored group.” Admin. R. Vol. 1 at 4.

Sharma’s conclusory assertions fail to establish that the Board’s determination is

legally erroneous or unsupported by substantial evidence.

6 Sharma further asserts that “the Board never considered whether the

Maoist-dominated government was unwilling or unable to control the Maoist group

that harmed [him].” Opening Br. at 17. This assertion is incorrect, however, because

the Board did state “that country conditions evidence indicates that government

officials are taking steps to prevent politically-motivated violence.” Admin. R.

Vol. 1 at 4; see also id. at 5 (noting that “[t]he Immigration Judge concluded that

[Sharma] had not demonstrated that the Nepali government was unable or unwilling

to protect [him] from the YCL members, which is a higher standard than that

required for [CAT] protection”). And to the extent Sharma intended this statement as

a challenge to the Board’s determination that the government of Nepal is not

unwilling or unable to control the YCL, his conclusory assertion fails to establish that

the decision was legally erroneous or unsupported by substantial evidence.

After rejecting Sharma’s argument that the YCL is a government-sponsored

group, the Board moved on to consider the issue of relocation. See Tulengkey,

425 F.3d at 1281 (recognizing that an applicant does not have a well-founded fear of

future persecution if he can reasonably relocate within his country, and that the

burden of showing that relocation is unreasonable falls on the applicant when the

alleged persecutor is not the government or a government-sponsored group). It

affirmed the immigration judge’s determination that Sharma could avoid harm

through relocation within Nepal and that relocation is reasonable. Sharma’s opening

brief does not challenge this holding. Accordingly, his “claim of a well-founded fear

of future persecution necessarily fails.” Id. at 1282.

7 II. Withholding of Removal

“The showing required for withholding of removal is more stringent tha[n] the

showing required for asylum.” Zhi Wei Pang, 665 F.3d at 1233. “To be eligible for

withholding of removal, an applicant must demonstrate that there is a clear

probability of persecution because of his race, religion, nationality, membership in a

particular social group, or political opinion.” Id. (internal quotation marks omitted).

If an applicant “fails to satisfy the lower burden of proof required for asylum, he also

fails to satisfy the higher standard of eligibility for withholding of removal.” Id. at

1234. Sharma’s failure to show persecution with regard to his asylum claim

necessarily means that his withholding of removal claim fails as well.

III. CAT Relief

“To be eligible for relief under the CAT, an individual must establish that it is

more likely than not that he or she would be tortured if removed to the proposed

country of removal.” Id. at 1233-34 (internal quotation marks omitted). For

purposes of the CAT, “torture” is “any act by which severe pain or suffering, whether

physical or mental, is intentionally inflicted” for certain purposes “by or at the

instigation of or with the consent or acquiescence of a public official acting in an

official capacity or other person acting in an official capacity.” 8 C.F.R.

§ 208.18(a)(1).

With regard to his CAT claim, Sharma states that “[f]or similar reasons” as his

asylum and withholding claims, he “has established a likelihood that he will be

tortured in violation of Article 3 of the CAT if he is returned to Nepal.” Opening Br.

8 at 19-20. Having rejected Sharma’s asylum and withholding claims, we reject his

CAT claim as well. See Sidabutar, 503 F.3d at 1125-26. On this record, no

reasonable adjudicator would be compelled to conclude that it is more likely than not

that Sharma would be tortured if he is returned to Nepal.

CONCLUSION

The petition for review is dismissed in part and denied in part.

Entered for the Court

Joel M. Carson III Circuit Judge