Tamang v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PAN BAHADUR TAMANG, 
Petitioner, No. 08-73550
v.
 Agency No.
A098-840-654
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted December 10, 2009*
Seattle, Washington

Filed March 16, 2010

Before: Ronald M. Gould and Richard C. Tallman,
Circuit Judges, and Roger T. Benitez,** District Judge.

Opinion by Judge Benitez

*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.

4281
 TAMANG v. HOLDER 4285

COUNSEL

Patrick Cantor, Buttar & Cantor LLP, Tukwila, Washington,
for petitioner Pan Bahadur Tamang.

Tony West, Acting Assistant Attorney General, Civil Divi-
sion, Terri J. Scadron, Assistant Director, and Kathryn Dean-
gelis, Trial Attorney, Office of Immigration Litigation, for
respondent Eric H. Holder Jr.

OPINION

BENITEZ, District Judge:

Petitioner Pan Bahadur Tamang petitions for review of the
Board of Immigration Appeals’ (“BIA’s”) order dismissing
his appeal of an immigration judge’s (“IJ’s”) denial of his
application for asylum, withholding of removal, and protec-
tion under the United Nations Convention Against Torture
(“CAT”). We dismiss the petition for review as to Tamang’s
asylum claim on the grounds that the claim was untimely. As
to Tamang’s remaining claims, we have jurisdiction under 8
U.S.C. § 1252, and we deny the petition for review.
4286 TAMANG v. HOLDER
BACKGROUND

Tamang is a native and citizen of Nepal. On July 18, 1999,
Tamang entered the United States on a visitor visa. When
Tamang’s visa expired on January 17, 2000, Tamang
remained in, and at all relevant times has remained in, the
United States. More than five years later, on August 12, 2005,
Tamang filed an application (“Application”) for asylum, with-
holding of removal, and protection under CAT.

Tamang’s Application includes a declaration stating,
among other things, that Tamang’s family was threatened by
Maoists and Maoists broke Tamang’s brother’s leg during an
altercation. This altercation apparently took place in 2002,
i.e., three years after Tamang arrived in the United States. The
record shows Tamang’s brother entered the United States on
June 18, 2002 and was later granted asylum in December
2005.

On January 23, 2007, a hearing was held on Tamang’s
Application. At the hearing, Tamang conceded he failed to
file a timely petition for asylum. Tamang testified he did not
file an earlier application because an attorney told him it was
not necessary since Tamang was not personally attacked. On
cross-examination, Tamang testified that he got this advice
from a “friend,” whose name he did not know, and that he
recently decided to file the Application because his brother
obtained asylum in an earlier proceeding.

Tamang also testified that his family had been active in
Nepalese politics: Tamang, his brother, and his father were
members of the Nepali Congress Party, and Tamang’s father
was the president of the Village Development Committee.
Tamang testified that, after the altercation with Maoists in
2002, his parents moved to India. However, in September
2006, Tamang’s parents returned to Nepal and have not had
problems with Maoists since their return. Tamang also testi-
fied that he has not been personally harmed by Maoists and,
 TAMANG v. HOLDER 4287
in fact, he has had no contact with Maoists at all. Tamang also
conceded that the Nepali Congress Party became the head of
government in 2006 and a ceasefire was declared with the
Maoists.

Nevertheless, Tamang testified he cannot safely return to
Nepal because he believes Maoists are looking for him.

At the conclusion of the hearing, the IJ issued an order
denying all relief sought by Tamang. Specifically, the IJ
found that Tamang’s asylum application was untimely and
failed to demonstrate changed or extraordinary circumstances
excepting the application from the one year statute of limita-
tion. The IJ found incredible Tamang’s belief that he did not
have to file his application within the one-year period and that
he had been advised against filing by an attorney. According
to the IJ, Tamang is a relatively well-educated individual who
could be expected to seek out further advice, especially given
his fear of persecution and the knowledge of his family’s suf-
fering as early as 2002, i.e., three years before Tamang filed
his asylum application.

The IJ further determined that Tamang had not established
past persecution in Nepal, noting that Tamang’s brother had
“suffered significant physical violence,” but that Tamang was
in the United States at that time and had not made “any claim
that he himself had any interaction with them.” The IJ further
noted that even Tamang’s family had returned to Nepal and
have not had any interaction with Maoists since 2002.

The IJ also found that there had been a change in country
conditions that mitigated against any fear of future persecu-
tion, especially in light of Tamang’s political party being the
new majority party in the Nepalese government. The IJ fur-
ther noted that asylum seekers such as Tamang “can be
expected to relocate to a community elsewhere in their coun-
try,” just as his family had done.
4288 TAMANG v. HOLDER
The IJ also denied Tamang’s application for CAT protec-
tion, finding Tamang had not demonstrated a risk of torture
by the government if he were to return to Nepal and noting
that Tamang’s own political party now forms the government
in Nepal.

On July 31, 2008, the BIA affirmed the IJ’s decision and
dismissed Tamang’s appeal. The BIA adopted the IJ’s deci-
sion in its entirety. This timely appeal ensued.

DISCUSSION

In upholding the IJ’s denial of Tamang’s Application, the
BIA “adopt[ed] and affirm[ed] the Immigration Judge’s deci-
sion,” citing Matter of Burbano, 20 I. & N. Dec. 872, 874
(BIA 1994). We, therefore, look through the BIA’s decision
and treat the IJ’s decision as the final agency decision for pur-
poses of this appeal. Gonzalez v. INS, 82 F.3d 903, 907 (9th
Cir. 1996).

We review the IJ’s factual findings for substantial evi-
dence. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
Under the substantial evidence test, we must uphold the IJ’s
findings, “if supported by reasonable, substantial and proba-
tive evidence on the record considered as a whole.” Id. (inter-
nal quotation marks omitted).

We review de novo questions of law and legal conclusions.
Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir. 2003).

We review separately the requests by Tamang for asylum,
withholding of removal and CAT protection.

I. ASYLUM

[1] An asylum application must be filed within one year of
the petitioner’s arrival in the United States. 8 U.S.C.
§ 1158(a)(2)(B). One exception, however, is where the peti-
 TAMANG v. HOLDER 4289
tioner demonstrates “extraordinary circumstances relating to
the delay.” Id. § 1158(a)(2)(D). The Code of Federal Regula-
tions sets forth several categories of “extraordinary circum-
stances” for purposes of asylum relief. 8 C.F.R.
§ 1208.4(a)(5)(i)-(vi). The category relevant here is “ineffec-
tive assistance of counsel.” Id. § 1208.4(a)(5)(iii). Tamang
appeals the IJ’s finding that he failed to demonstrate ineffec-
tive assistance of counsel.

A. JURISDICTION

As a threshold matter, we must consider whether we have
jurisdiction to review the IJ’s finding. The short answer is yes.

[2] We address this issue because two statutory provisions
provide that no court has jurisdiction to review a determina-
tion of the IJ or BIA relating to the one-year bar or the excep-
tions for changed or extraordinary circumstances thereunder.
See 8 U.S.C. §§ 1158(a)(3) and 1252(a)(2)(B). In 2005, how-
ever, Congress passed the REAL ID Act which restored our
jurisdiction, but only for those decisions invoking constitu-
tional claims or questions of law. Id. § 1252(a)(2)(D); see also
Husyev v. Mukasey, 528 F.3d 1172, 1178-79 (9th Cir. 2008).
We must, therefore, determine whether Tamang’s ineffective
assistance claim involves a question of law.

[3] “Questions of law,” as that phrase is used under the
REAL ID Act, extends to questions involving the application
of statutes or regulations to undisputed facts, also known as
mixed questions of fact and law. Ramadan v. Gonzales, 479
F.3d 646, 650 (9th Cir. 2007); see also Pullman-Standard v.
Swint, 456 U.S. 273, 289-90 & n.19 (1982) (mixed questions
of law and fact are those “in which the historical facts are
admitted or established, the rule of law is undisputed, and the
issue is whether the facts satisfy the statutory standard, or to
put it another way, whether the rule of law as applied to the
established facts is or is not violated”).
4290 TAMANG v. HOLDER
[4] Ninth Circuit authority also provides that the “ineffec-
tive assistance” prong of the extraordinary circumstances
exception is treated as a mixed question of law and fact, as
long as the relevant underlying facts are not disputed. See,
e.g., Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th Cir.
2007) (noting same in the context of an appeal of the BIA’s
denial of a motion to reopen deportation proceedings). How-
ever, until now, there have been no published decisions speci-
fying which underlying facts cannot be disputed for purposes
of this determination.

[5] At least one Ninth Circuit case has held, albeit under
a different category of extraordinary circumstances, that juris-
diction existed where the following facts were not disputed:
the date of petitioner’s arrival; the expiration of a petitioner’s
legal status; and the petitioner’s application for asylum.
Husyev, 528 F.3d at 1179 (finding that petitioner’s extraordi-
nary circumstances exception based on the “reasonable peri-
od” prong was a mixed question of law and fact because these
same facts were not disputed). Although not specifically
stated, those facts pertain to the elements necessary to prove
the extraordinary circumstances category at issue in that case,
i.e., that the petitioner had maintained lawful immigration sta-
tus until a reasonable time before filing his or her asylum
application per 8 C.F.R. § 1208.4(a)(5)(iv). Although the rea-
sonable period category is not at issue in this case, applying
the Husyev concept here, it is clear Tamang’s ineffective
assistance of counsel claim is a mixed question of law and
fact.

To satisfy an ineffective assistance of counsel claim, a peti-
tioner must: (1) provide an affidavit detailing the agreement
with counsel and any representations counsel did or did not
make regarding the agreement; (2) inform counsel of the
alleged ineffectiveness and provide an opportunity to respond;
and (3) file a complaint with the appropriate disciplinary
authorities, or if no such complaint was filed, explain why. Id.
§ 1208.4(a)(5)(iii)(A)-(C).
 TAMANG v. HOLDER 4291
[6] Tamang does not dispute that he failed to satisfy these
factual elements; rather, as more fully discussed below,
Tamang argues he should not be required to satisfy these ele-
ments. As such, the relevant facts are undisputed and, pursu-
ant to Ninth Circuit authority, Tamang’s claim is a mixed
question of law and fact. Accordingly, we find we have juris-
diction to review the IJ’s finding that Tamang’s asylum appli-
cation was time-barred.

B. INEFFECTIVE ASSISTANCE OF COUNSEL

[7] As noted, Tamang argues he is excepted from the one-
year limitation period based on alleged “ineffective assistance
of counsel.” To qualify for this exception, a petitioner must
(1) provide an affidavit detailing the agreement with counsel
and any representations counsel did or did not make regarding
the agreement; (2) inform counsel of the allegation of ineffec-
tiveness and provide an opportunity to respond; and (3) file a
complaint with the appropriate disciplinary authorities, or if
no such complaint was filed, explain why. 8 C.F.R.
§ 1208.4(a)(5)(iii)(A)-(C). Additionally, a petitioner must file
his or her untimely application within a reasonable period
given the circumstances. Id. §§ 208.4(a)(5) and 1208.4(a)(5).

These elements are a codification of earlier common law
based on Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988)
and followed by this Circuit, as well as several sister circuits.
See, e.g., Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46 (2nd
Cir. 2005); Hamid v. Ashcroft, 336 F.3d 465, 469 (6th Cir.
2003); Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir. 1999).

[8] Here, it is undisputed Tamang failed to satisfy these
conditions. Rather, Tamang argues strict compliance with
these conditions is not necessary. Tamang cites the following
cases to support his argument: Castillo-Perez v. INS, 212 F.3d
518 (9th Cir. 2000); Lo v. Ashcroft, 341 F.3d 934 (9th Cir.
2003); and Rojas-Garcia v. Ashcroft, 339 F.3d 814 (9th Cir.
2003).
4292 TAMANG v. HOLDER
[9] As noted by Tamang, these cases held that strict com-
pliance with Lozada was not required because, under the cir-
cumstances of those cases, the ineffectiveness of counsel was
plain on its face. Castillo-Perez, 212 F.3d at 526 (ineffective-
ness was plain on its face where petitioner’s former counsel
misrepresented to petitioner that his application had been filed
and petitioner later filed a declaration complying with
Lozada); Lo, 341 F.3d at 938 (ineffectiveness was plain on its
face where former counsel mis-calendared the removal hear-
ing, petitioner failed to appear at the hearing, and declarations
were filed that complied with the first two prongs of Lozada);
Rojas-Garcia, 339 F.3d at 824-25 (ineffectiveness was plain
on its face where former counsel forgot to file the brief
because he was transitioning to a new job and taking over a
former colleague’s caseload, and declarations were filed satis-
fying the first prong of Lozada).

[10] Here, however, the ineffectiveness of Tamang’s for-
mer counsel’s assistance is not plain on its face. First, Tamang
could not remember the name of his former counsel or the
dates or circumstances of any purported contact with his for-
mer counsel. Indeed, it is not even clear Tamang spoke with
an attorney, as opposed to a mere consultant or friend whose
opinion Tamang cannot rely upon for purposes of the ineffec-
tive assistance exception. See generally Albillo-DeLeon v.
Gonzales, 410 F.3d 1090, 1099 (9th Cir. 2005). Additionally,
unlike the cases upon which Tamang relies, Tamang has not
complied, either timely or untimely, with any of the Lozada
requirements.

Rather, it appears Tamang’s Application presents the very
circumstances for which the Lozada requirements, and now 8
C.F.R. § 1208.4(a)(5)(iii)(A)-(C), were intended. The goal of
Lozada was to provide a more objective basis from which to
assess the veracity of the substantial number of ineffective
assistance claims asserted by asylum applicants and to hold
attorneys to appropriate standards of performance. See
Lozada, 19 I. & N. Dec. at 639-40. Where these goals are fur-
 TAMANG v. HOLDER 4293
thered, courts have unanimously upheld the requirements set
forth in Lozada. See, e.g., Rojas-Garcia, 339 F.3d at 824-25;
Lo, 341 F.3d at 937-38. As we have stated, “Lozada is
intended to ensure both that an adequate factual basis exists
in the record for an ineffectiveness complaint and that the
complaint is a legitimate and substantial one.” Castillo-Perez,
212 F.3d at 526.

[11] Here, without Tamang’s compliance with the Lozada
elements, as codified in 8 C.F.R. § 1208.4(a)(5)(iii)(A)-(C), it
is impossible to determine whether Tamang’s ineffective
assistance of counsel claim has merit. By failing to provide
any information regarding his purported former counsel,
Tamang has also failed to provide any other independent basis
from which to analyze his claim. Therefore, as recognized by
the IJ, Tamang’s failure to satisfy the Lozada requirements
was fatal to Tamang’s claim for ineffective assistance of
counsel.

Even if “extraordinary circumstances” were found, Tamang
failed to file his Application within a reasonable period after
being on notice of his purported former counsel’s error. Sub-
stantial evidence on the record supports the IJ’s finding that
Tamang was on notice of the need to file his Application in
at least 2000 or 2001 and was a relatively well-educated indi-
vidual such that one could expect Tamang to seek other
advice. This is especially true if, as Tamang claims, he had a
great fear of returning to his home country. Nonetheless,
Tamang did not file his Application until 2005, at least four
years later. As such, the requirements of 8 U.S.C.
§ 1158(a)(2)(D) and 8 C.F.R. § 1208.4(a)(5) for exception to
the one-year statute of limitation are not met.

[12] In light of these circumstances, we hold that substan-
tial evidence supports the IJ’s dismissal of the asylum claim.

II. WITHHOLDING OF REMOVAL

Withholding of removal requires the petitioner to demon-
strate his or her “life or freedom would be threatened in that
4294 TAMANG v. HOLDER
country because of the [petitioner’s] race, religion, national-
ity, membership in a particular social group, or political opin-
ion.” 8 U.S.C. § 1231(b)(3). Similar to asylum, a petitioner
may establish eligibility for withholding of removal (A) by
establishing a presumption of fear of future persecution based
on past persecution, or (B) through an independent showing
of clear probability of future persecution. 8 C.F.R.
§ 1208.16(b)(1) and (2).

[13] Unlike asylum, however, the petitioner must show a
“clear probability” of the threat to life or freedom if deported
to his or her country of nationality. INS v. Stevic, 467 U.S.
407, 429-30 (1984). The Supreme Court has defined “clear
probability” to mean it is “more likely than not” that the peti-
tioner would be subject to persecution on account of one of
the protected grounds. INS v. Cardoza-Fonseca, 480 U.S.
421, 429 (1987). The clear probability standard is more strin-
gent than the well-founded fear standard for asylum.
Khunaverdiants v. Mukasey, 548 F.3d 760, 767 (9th Cir.
2008).

A. PAST PERSECUTION

Establishing a presumption of fear of future persecution
arising from past persecution is one way to obtain withhold-
ing of removal. This presumption may be rebutted where the
IJ finds changed country conditions mitigate against the threat
of persecution or the petitioner could reasonably be expected
to relocate to a different part of his or her country. 8 C.F.R.
§§ 208.16(b)(1)(i) and 1208.16(b)(1)(i).

Tamang argues the IJ erred in failing to deem threats and
violence against his family as past persecution of Tamang
himself; finding changed conditions in Nepal mitigate against
any fear of persecution if Tamang returned to Nepal; and find-
ing Tamang could reasonably be expected to relocate else-
where in Nepal.
 TAMANG v. HOLDER 4295
1. Threats Against Family

[14] Under Ninth Circuit law, a petitioner claiming past
persecution must demonstrate “[p]articularized individual per-
secution, not merely conditions of discrimination,” in order to
qualify for withholding of removal. Prasad v. INS, 47 F.3d
336, 340 (9th Cir. 1995); see also Sanchez-Trujillo v. INS,
801 F.2d 1571, 1574 (9th Cir. 1986). While we have recog-
nized that harm to a petitioner’s close family members or
associates may be relevant to assessing whether the petitioner
suffered past persecution, we have not found that harm to oth-
ers may substitute for harm to an applicant, such as Tamang
in this case, who was not in the country at the time he claims
to have suffered past persecution there. See, e.g., Mashiri v.
Ashcroft, 383 F.3d 1112, 1121 (9th Cir. 2004) (finding that
petitioner satisfied her showing of particularized persecution
based on several acts of violence and discrimination against
her family members, which petitioner personally dealt with on
a day-to-day basis.); Rodriguez-Rivera v. INS, 848 F.2d 998,
1005-06 (9th Cir. 1998) (petitioner’s allegation that he faced
persecution based on his refusal to join the army and subse-
quent flight to avoid joining the army was not sufficient to
establish persecution for purposes of withholding of removal).

The cases cited by Tamang are factually inapposite. In Kai-
ser v. Ashcroft, 390 F.3d 653, 656 (9th Cir. 2004), the peti-
tioner was an officer in the Pakistani army and had been
placed on a hit list by a violent political party based on peti-
tioner’s role in apprehending and convicting several of the
party’s leaders. The petitioner personally suffered two
attempts on his life but then moved elsewhere in Pakistan and
lived there without any further trouble. When the petitioner
tried to return to his prior hometown, threats of future harm
to him and his family resumed, at which point petitioner and
his family moved to the United States. Id. at 656-67.

The BIA denied petitioner’s request for withholding of
removal because the threats to the petitioner had not been car-
4296 TAMANG v. HOLDER
ried out and the petitioner could safely relocate elsewhere in
Pakistan; therefore, the higher standard applicable to with-
holding of removal had not been satisfied. Id. at 657. The
Ninth Circuit upheld this determination, but remanded the
case to the BIA for further determination on the less stringent
standard applicable to asylum because, among other things,
the petitioner had suffered personal injury before the threats
and, therefore, the threats could establish a “well-founded
fear” of persecution for asylum purposes. Id. at 658-59.

Here, unlike in Kaiser, Tamang did not suffer any personal
persecution. Additionally, as noted, Tamang’s claim for asy-
lum is time-barred. Therefore, unlike in Kaiser, there is no
question of whether Tamang could have satisfied the less
stringent standard of “well-founded” fear of persecution for
asylum purposes. If anything, because the court in Kaiser
found withholding of removal was not warranted, Kaiser sup-
ports the conclusion that the IJ did not err in denying
Tamang’s withholding of removal in this case.

The other cases cited by Tamang are likewise unavailing.
In Bolanos-Hernandez v. INS, 767 F.2d 1277 (9th Cir. 1984),
the petitioner had suffered threats of violence against him per-
sonally, while he was residing in his native country. Id. at
1280. Those circumstances are not present here, as Tamang
testified he did not suffer any personal persecution. In
Rodriguez-Rivera, 848 F.2d at 1005-06, similar to this case,
the petitioner asserted a general fear of persecution based on
petitioner’s refusal to join the army in his native country and
subsequent flight to avoid joining the army. The petitioner
also alleged threats of violence by guerrillas against him per-
sonally. We held that such evidence does not establish past
persecution for purposes of withholding of removal. Id. at
1005-06.

Tamang emphasizes that his brother was granted asylum
and argues that, absent similar relief for Tamang, the possibil-
ity of inconsistent asylum treatment exists. We first note that,
 TAMANG v. HOLDER 4297
unlike Tamang, Tamang’s brother filed a timely asylum appli-
cation and, therefore the less stringent standard of “well-
founded fear” applied. Second, we note that Tamang’s
brother, unlike Tamang, suffered direct persecution by Mao-
ists: Tamang’s brother was at the family’s home in Nepal
when Maoists visited the family in 2002, and Tamang’s broth-
er’s leg was broken by Maoists in the ensuing altercation.

These circumstances are distinct from the circumstances
presented in Njuguna v. Ashcroft, 374 F.3d 765 (9th Cir.
2004) and Wang v. Ashcroft, 341 F.3d 1015 (9th Cir. 2003).
Unlike in Njunga and Wang, having already moved to the
United States at the time of the alleged persecution, Tamang
was far removed from the persecution that his brother suf-
fered and was not directly impacted in any way. Additionally,
this is not a situation where two different IJs could reasonably
differ; rather, the IJ in this case is the same IJ who granted
asylum to Tamang’s brother. Therefore, the IJ had personal
knowledge of his brother’s application and, in fact, took extra
time to note on the record the many differences between
Tamang’s and his brother’s applications and the bases for
awarding different treatment.

[15] In light of the above, we find substantial evidence
supports the IJ’s finding that Tamang did not suffer past per-
secution.

2. Changed Country Conditions

[16] The IJ is permitted to consider changed country con-
ditions pursuant to 8 C.F.R. § 1208.16(b)(1)(A) (stating that
a presumption of threat to life or freedom can be rebutted if
the IJ finds, upon a preponderance of evidence, that “[t]here
has been a fundamental change in circumstances . . .”). Even
if Tamang had suffered past persecution, we find substantial
evidence supports the IJ’s finding that changed conditions in
Nepal mitigate against any fear of persecution if Tamang
returned to Nepal.
4298 TAMANG v. HOLDER
The IJ’s decision on changed country conditions was based,
in large part, on Tamang’s testimony that no member of his
family has had any contact with Maoists since the altercation
in 2002; Tamang’s family returned to Nepal in 2006 and con-
tinues to live there without incident; and the political party
with which Tamang and his family were associated now
forms the government of Nepal. These facts came from
Tamang’s own testimony and were not disputed. Respondent
also produced newspaper articles showing the general change
in political conditions in Nepal. The IJ listed the reasons for
his finding and explained how these reasons related directly
to Tamang’s ability to return to Nepal without fear. As such,
we find substantial evidence supports the IJ’s decision.

Tamang also contests the IJ’s adverse credibility finding.
With respect to changed country conditions, the only adverse
credibility finding made by the IJ was the IJ’s statement, “I
do not find credible the respondent’s repeated statement
‘nothing has changed.’ ” Even if this finding formed a basis
of the IJ’s decision, substantial evidence supports the IJ’s
adverse credibility finding.

[17] We recently had the opportunity to apply the REAL
ID Act’s new standard for adverse credibility findings in
Shrestha v. Holder, 590 F.3d 1034, 1039-48 (9th Cir. 2010).
There, we noted the new standard enacted by Congress pro-
vides that any inaccuracies, omissions of detail, or inconsis-
tencies found by the IJ, regardless of whether they go to the
“heart” of a petitioner’s claim, may support an adverse credi-
bility finding. See id. at 1040-43 (citing 8 U.S.C.
§ 1158(b)(1)(B)(iii)). However, we followed several other cir-
cuits in cautioning that an IJ cannot selectively examine evi-
dence in determining credibility, but rather must present a
reasoned analysis of the evidence as a whole and cite specific
instances in the record that form the basis of the adverse cred-
ibility finding. Id. at 1041-42.

[18] Applied here, we find the IJ’s adverse credibility find-
ing is supported by the record. The IJ cited the discrepancy
 TAMANG v. HOLDER 4299
between Tamang’s testimony that nothing had changed and
the evidence produced by Respondent and supplied by
Tamang’s own testimony showing that political conditions
had changed and Tamang’s political party is currently the
head of the government. The IJ stated specific and cogent rea-
sons why Tamang’s statement “nothing has changed” was
unavailing. As such, we find substantial evidence supports the
IJ’s adverse credibility ruling.

In light of the foregoing, we need not address the IJ’s deter-
mination that Tamang could reasonably be expected to relo-
cate elsewhere, as that issue has been rendered moot.

B. CLEAR PROBABILITY OF FUTURE
PERSECUTION

[19] A petitioner may also qualify for withholding of
removal based on a clear probability of future persecution. To
satisfy this standard, a petitioner must demonstrate that his or
her fear is “both subjectively genuine and objectively reason-
able.” Similar to the above, a perceived fear of future persecu-
tion may be rebutted if the petitioner could relocate elsewhere
in his or her native country, and it would be reasonable to
expect the petitioner to do so. 8 C.F.R. § 1208.16(b)(2).

“An immigrant may demonstrate that her fear is subjec-
tively genuine merely by credibly testifying that [s]he genu-
inely fears persecution.” Rodas-Mendoza v. INS, 246 F.3d
1237, 1239 (9th Cir. 2001) (internal quotation marks omitted).
Here, Tamang testified that based on the persecution suffered
by his family, Tamang has a fear of future persecution if
returned to Nepal. Tamang has, thus, satisfied the subjective
prong of this analysis.

However, the IJ found Tamang’s fear of future persecution
was not objectively reasonable. Tamang testified his parents
returned to Nepal in 2006 and his family has had no problems
with Maoists since their return. “It is well established in this
4300 TAMANG v. HOLDER
court that an alien’s history of willingly returning to his or her
home country militates against a finding of past persecution
or a well-founded fear of future persecution.” Loho v.
Mukasey, 531 F.3d 1016, 1017-18 (9th Cir. 2008) (quoting
Kumar v. Gonzales, 439 F.3d 520, 524 (9th Cir. 2006) and
Boer-Sedano v. Gonzales, 418 F.3d 1082, 1091 (9th Cir.
2005)). “We have also held that a petitioner’s fear of future
persecution ‘is weakened, even undercut, when similarly-
situated family members’ living in the petitioner’s home
country are not harmed.” Sinha v. Holder, 564 F.3d 1015,
1022 (9th Cir. 2009) (citing Hakeem v. INS, 273 F.3d 812,
816 (9th Cir. 2001)). Here, because Tamang’s fear of future
persecution rests solely upon threats received by his family,
it is especially significant that his family voluntarily returned
to Nepal and continues to live there unharmed, after being
threatened by Maoists in 2002.

Tamang’s fear of future persecution is further tempered by
evidence showing changed country conditions in Nepal, as
noted above. Specifically, the IJ noted that the Nepalese king
reinstated the 1999 parliament which was democratically
elected and led by Tamang’s political party. The IJ further
noted that the Maoists declared a ceasefire in April 2006 and
had joined other parties in parliament. Tamang, notably, con-
ceded these facts.

[20] To rebut the evidence, Tamang cited to vague threats
made against his family. Although a reasonable factfinder
may find these threats relevant, the threats do not compel a
finding of clear probability of future persecution. Therefore,
we find that, when viewing the record as a whole, substantial
evidence exists to support the IJ’s finding that Tamang’s per-
ceived fear of future persecution is not objectively reasonable.

III. CAT PROTECTION

We finally turn to the IJ’s denial of CAT protection. To
support his request for CAT protection, Tamang relies on the
 TAMANG v. HOLDER 4301
same evidence and arguments submitted in support of asylum
and withholding of removal.

[21] To qualify for CAT protection, a petitioner must show
it is more likely than not he or she would be tortured if
removed to the country of origin. 8 C.F.R. § 208.16(c)(2);
Morales v. Gonzales, 478 F.3d 972, 983 (9th Cir. 2007). The
same “more likely than not” standard applies to CAT protec-
tion as it does to withholding of removal; however, for CAT
protection, the harm feared must meet the definition of tor-
ture. Additionally, unlike withholding of removal under the
Immigration and Nationality Act, withholding of removal
under CAT is based entirely on an objective basis of fear;
there is no subjective component to a petitioner’s fear of tor-
ture. Therefore, evidence of relevant country conditions is
extremely important, as is the ability of Tamang to safely
relocate to another part of his country of origin. 8 C.F.R.
§ 208.16(c)(3).

[22] For the same reasons stated above under withholding
of removal, the record does not compel the conclusion that
Tamang merits CAT protection. Tamang fails to present evi-
dence or even allege that he would most likely be tortured by
or with the acquiescence of a government official or other
person acting in an official capacity. 8 C.F.R. § 1208.18(a)(1).
As such, we hold a reasonable factfinder would not be com-
pelled to find Tamang eligible for CAT protection. We con-
clude that substantial evidence supports the IJ’s finding that
Tamang does not merit CAT protection.

CONCLUSION

We DISMISS IN PART, DENY IN PART Tamang’s
petition for review of the IJ’s denial of asylum, withholding
of removal, and CAT protection.