FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 6, 2013
Elisabeth A. Shumaker
Clerk of Court
DORJE SHERPA,
Petitioner,
v. No. 13-9552
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before GORSUCH, ANDERSON, and HOLMES, Circuit Judges.
Petitioner Dorje Sherpa petitions for review of the decision of the Board of
Immigration Appeals (BIA) affirming the decision of an immigration judge (IJ)
denying his application for asylum, restriction on removal, and protection under the
United Nations Convention Against Torture (CAT). We hold that petitioner has
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
ordered 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
failed to carry the heavy burden placed on those challenging adverse asylum
determinations, and we therefore deny the petition for review.
I. Background
Petitioner is a native and citizen of Nepal. He was admitted to the United
States in November 2007 with a temporary worker visa and was authorized to stay
for six months. He overstayed his visa and filed his application for asylum or other
relief from removal. Removal proceedings were subsequently initiated against him.
He conceded removability, but testified at the hearing that he had been persecuted in
the past and would be subject to future persecution in Nepal because of his political
opinion, imputed political opinion, and membership in a particular social group, the
Sherpa tribe.
A. Factual Background
Petitioner was born in 1987 in a village, but his parents made a lot of money
selling products from their farm, and they bought a second home in Kathmandu so
that petitioner and his brother could attend better schools. Petitioner wrote on his
asylum application that he lived in Kathmandu from January 1995 until November
2007 and that he attended Hiralal college in Kathmandu from July 2005 until March
2007.
Petitioner’s father became a member of the Nepali Congress Party in 1992 and
helped candidates get elected. The Maoists seized the family’s village home in 1998,
a few months after petitioner’s father refused to give them money. Petitioner joined
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the affiliated youth organization, the Nepali Student Union, in May 2002 and
received training in the Nepali Congress Party’s ideology to oppose the Maoists
because they were terrorists. He testified that in 2002, he informed the army of
Maoist activities in the villages and, as a result, the army took action against the
Maoists, killing some of them. The Maoists later found out his name and started
looking for him. He did not know how the Maoists learned that he had informed on
them, but they went to his family’s home in Kathmandu in 2005. Petitioner was not
home at the time, but his parents were, and the Maoists threatened them and told
them that they would kill him. Petitioner’s father called him and warned him not to
come home, and the Maoists later made additional threats to his parents.
Petitioner stayed in Nepal for two more years after his parents received the
threat on his life. When he was asked why he remained in Nepal, he explained that
he was dependent on his parents and had no opportunity to leave Nepal until a friend
of his father’s helped him get a job in the United States. He said that he stayed in
hiding in Nepal with his family and friends, moving from place to place. He
explained that he did not write down his friends’ addresses on his asylum application
because there were too many of them and there was no room on the form.
When petitioner was asked why the Maoists could not have identified him in
Nepal, considering that he worked for his father’s small business making deliveries
to customers on a motorcycle out in public, he explained that he wore a helmet
partially covering his face and did not work on a regular basis. When asked why the
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Maoists could not have found him at his college, he said that he stopped going to
college in March 2006, when he learned that the Young Communist League (YCL,
the Maoists’ youth organization) had found out he was attending school, but he wrote
on his asylum application that he had attended college until March 2007 because he
was still admitted.
He testified that some Maoists threatened him at Hiralal campus once, but he
managed to run away. He also testified that in September 2006, he was beaten and
injured by ten-to-twelve YCL members in a public youth campus when he went there
for some training. The Maoists came there to break up the meeting and said that he
should be killed because he had informed on them. Petitioner was beaten
unconscious and spent two days in the hospital, but he lost the documentation during
the time when he moved from place to place. He was treated with a bandage, and he
showed the IJ a three-inch scar on the front of his right shin.
Petitioner’s counsel identified the asserted particular social group of which
petitioner was a member as “Sherpa,” and explained that the Sherpas were targeted
by Maoists because they are tracking guides and were known to have money.
Petitioner testified that the Sherpas were one of several tribes with Mongolian
features, so they could not be identified as Sherpas merely by appearance. He said
that the Maoists target the Sherpas for donations because they are in business. But he
admitted that some Sherpas are Maoists, and that the Maoists solicit everyone either
for donations or to recruit their children as workers.
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B. The Administrative Decisions
At the conclusion of the July 15, 2011, hearing, the IJ denied petitioner any
relief from removal based on his political opinion or membership in a particular
social group. Petitioner appealed to the BIA, which agreed with the IJ’s conclusions
with respect to the issues raised and dismissed the appeal. The BIA agreed that the
incidents about which petitioner testified, taken in the aggregate, failed to establish
that he was persecuted in the past, and he was therefore not entitled to a presumption
of a well-founded fear of future persecution. The BIA further agreed that petitioner
failed to show that his asserted fear of future persecution was objectively reasonable
and based on credible evidence that he would be singled out for persecution. The
BIA also agreed that petitioner’s documentary evidence was insufficiently
authenticated. In addition, the BIA agreed that petitioner failed to establish a nexus
between his alleged fear of persecution and his actual or imputed political opinion,
rather than his actions as an informant against the Maoists. The BIA concluded that
because petitioner failed to meet the standard for asylum, he necessarily failed to
meet the higher standard for restriction on removal. Petitioner filed this petition for
review.
II. Discussion
“In our review of the agency’s decision, we decide purely legal questions
de novo.” Ritonga v. Holder, 633 F.3d 971, 974 (10th Cir. 2011). “Agency findings
of fact are reviewed under the substantial evidence standard.” Id. Thus, “the
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administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Under
this standard, “[o]ur duty is to guarantee that factual determinations are supported by
reasonable, substantial and probative evidence considering the record as a whole.”
Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006) (internal quotation
marks omitted). While we review the BIA’s decision, not the IJ’s, we “may consult
the IJ’s opinion to the extent that the BIA relied upon or incorporated it.” Sarr v.
Gonzales, 474 F.3d 783, 790 (10th Cir. 2007). “Finally, our review is confined to the
reasoning given by the [agency], and we will not independently search the record for
alternative bases to affirm.” Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir.
2004).
Because petitioner applied for asylum following the enactment of the REAL
ID Act in 2005, his burden of proof is set forth in 8 U.S.C. § 1158(b)(1)(B)(i). To
qualify for asylum, he was required to prove that he is a refugee, which requires
proof that his “‘race, religion, nationality, membership in a particular social group, or
political opinion was or will be at least one central reason for persecuting [him].’”
Dallakoti v. Holder, 619 F.3d 1264, 1268 (10th Cir. 2010) (quoting
§ 1158(b)(1)(B)(i)).
Petitioner may establish refugee status in three ways: (1) by showing a
well-founded fear of future persecution; (2) by showing past persecution, which
creates a rebuttable presumption of a well-founded fear of future persecution; or
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(3) by showing “past persecution so severe as to demonstrate compelling reasons for
being unwilling or unable to return,” even without any danger of future persecution.
Krastev v. INS, 292 F.3d 1268, 1270-71 (10th Cir. 2002) (internal quotation marks
omitted). But “the BIA [has] interpreted ‘one central reason’ to mean ‘the protected
ground cannot play a minor role in the alien’s past mistreatment or fears of future
mistreatment. That is, it cannot be incidental, tangential, superficial, or subordinate
to another reason for harm.’” Dallakoti, 619 F.3d at 1268 (quoting In re J-B-N- &
S-M-, 24 I. & N. Dec. 208, 214 (BIA 2007)). As a result, even if petitioner has
shown that his actions were politically motivated, “he would need to make the
additional showing that the [Maoists] would ‘persecute him because of that political
opinion, rather than’” because of some other, unprotected reason. Rivera-Barrientos
v. Holder, 666 F.3d 641, 647 (10th Cir. 2012) (quoting INS v. Elias-Zacarias,
502 U.S. 478, 483 (1992)).
To qualify for restriction of removal under the Immigration and Nationality
Act (INA), 8 U.S.C. § 1231(b)(3), an applicant must “establish a clear probability of
persecution on account of one of the statutorily protected grounds.” Uanreroro,
443 F.3d at 1202 (internal quotation marks omitted). “Applicants who cannot
establish a well-founded fear under asylum standards will necessarily fail to meet the
higher burden of proof required for [restriction on] removal under the INA. . . .” Id.
Petitioner argues that the BIA and IJ erred in concluding that he failed to show
past persecution, a well-founded fear of future persecution, and a nexus between the
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alleged persecution and his political opinion, imputed political opinion, or
membership in the Sherpa tribe. He also argues that the BIA and IJ erred in
concluding that he had not established his entitlement to relief from removal under
the INA or the CAT. We find no error.
We note at the outset that petitioner did not raise any arguments to the BIA
concerning his membership in the Sherpa tribe or related to his CAT claim, nor did
the BIA sua sponte address those claims. As a result, we lack jurisdiction to consider
his unexhausted arguments regarding those issues. See Sidabutar v. Gonzales,
503 F.3d 1116, 1118-20 (10th Cir. 2007). Moreover, we need not address his
arguments that he showed that he suffered past persecution or had a reasonable fear
of future persecution. Even if he made the required showing on those points, his
claims for asylum and restriction on removal also failed because he did not show that
the Maoists targeted him in the past or would target him in the future because of his
political beliefs or imputed political beliefs. Unless the record “establish[es] that any
reasonable adjudicator would be compelled to conclude that one of the central
reasons the Maoists targeted [petitioner] was because of” a protected ground, he is
not entitled to relief on appeal. Dallakoti, 619 F.3d at 1268 (emphasis added).
Petitioner’s vague evidence fails to satisfy the high standard that applies to his
appeal. When he testified about being beaten by a group of Maoists, he reported that
they said he should be killed because he had informed on them; he did not suggest
that they were motivated by his political beliefs. See Admin. R. at 219-20. There is
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no other reference to the Maoists’ alleged motivation in the record, and we are not
compelled to conclude that he established the required nexus between the alleged
persecution and a protected ground. See Adhiyappa v. INS, 58 F.3d 261, 266-68
(6th Cir. 1995) (distinguishing “whether the persecution an alien fears is on account
of his political opinion or, on the other hand, on account of his actions or inactions,”
as discussed in Elias-Zacarias, 502 U.S. at 481, and concluding based on the record
before the court that “it was [the petitioner’s] status as an informant, not his political
opinion, that spurred [the terrorists’] hatred”); cf. Karki v. Holder, 715 F.3d 792, 803
(10th Cir. 2013) (noting that “[u]nder Elias-Zacarias, an individual’s refusal to join
an organization is insufficient in itself to demonstrate that the organization’s
persecution was based on the individual’s actual or imputed political opinion, rather
than retaliation for the individual’s resistance”).
The petition for review is denied.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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