FILED
United States Court of Appeals
Tenth Circuit
January 24, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
MADHAV SHARMA; LEYLA
SHARMA; SHRAYA SHARMA,
Petitioners,
No. 13-9559
v.
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before HARTZ, McKAY, and BACHARACH, Circuit Judges.
A married couple and their daughter came to the United States from Nepal.
Before coming here, the couple had been mistreated in Nepal, which they attribute
to the husband’s membership in a political party opposed by the Maoists. The
Petitioners characterized the mistreatment as persecution and sought asylum, an
order restricting removal, and relief under the Convention Against Torture. When
* All parties have waived oral argument. Thus, we have decided the appeal
based on the briefs.
Our order and judgment does not constitute binding precedent except under
the doctrines of law of the case, res judicata, and collateral estoppel. But the
order and judgment can be cited for its persuasive value under Fed. R. App. P.
32.1 and 10th Cir. R. 32.1.
the immigration judge and the Board of Immigration Appeals rejected the claims,
the three family members filed a petition for us to review the administrative
decision. We deny the petition.
Restriction on Removal and Relief
Under the Convention Against Torture
When the Petitioners appealed to the Board of Immigration Appeals, they
did not refer to their claims involving restriction on removal and relief under the
Convention Against Torture. R. at 34. As a result, the Attorney General argues
that these claims cannot be considered. Respondent’s Br. at 14 (Sept. 18, 2013).
We disagree because the Board of Immigration Appeals addressed and decided
these claims on the merits with a meaningful substantive discussion. Id. at 10; see
Sidabutar v. Gonzales, 503 F.3d 1116, 1118-22 (10th Cir. 2007).
Though we have jurisdiction to address these claims, the Petitioners have
failed to present a meaningful argument. In their statement of issues, the
Petitioners refer to the agency’s refusal to restrict removal or grant relief under the
Convention Against Torture. But these issues are not discussed again the
Petitioner’s brief. Because the Petitioners have failed to present argument on
these issues, we consider them waived. See, e.g., Christian Heritage Academy v.
Oklahoma Secondary School Activities Ass’n, 483 F.3d 1025, 1031 (10th Cir.
2007) (“Where an appellant lists an issue, but does not support the issue with
argument, the issue is waived on appeal.”).
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Asylum
In contrast, the Petitioners have argued that the Board erred in rejecting the
request for asylum. We reject this argument.
Our threshold task is to define the claim. Though all of the petitioners seek
asylum, the wife and daughter derive their claim from the husband’s. See 8 U.S.C.
§ 1158(b)(3). Thus, for any of the petitioners to prevail, the husband had to prove
refugee status. See 8 U.S.C. § 1158(b)(1)(A).
This status required the husband to prove that he was unable or unwilling to
return to Nepal because of past persecution or a well-founded fear of persecution.
See 8 U.S.C. § 1101(42). For either past or future persecution, however, the
mistreatment must have been based largely on the husband’s race, religion,
nationality, membership in a particular social group, or political opinion. See 8
U.S.C. § 1158(b)(1)(B)(i).
The Board of Immigration Appeals found that the husband had not satisfied
his burden of persuasion, and we must uphold the Board’s factual determinations
as long as they are supported by substantial evidence. Ritonga v. Holder, 633 F.3d
971, 974 (10th Cir. 2011). The evidence is considered “substantial” as long as
“any reasonable adjudicator” could have arrived at the same findings. 8 U.S.C.
§ 1252(b)(4)(B).
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A reasonable adjudicator would have had to assess the extent and cause of
the persecution in light of testimony by the husband and wife.
The husband testified that he had been a long-standing member of a group
opposed to the Maoists, that he had tried to motivate others about the party’s
goals, that he had been told that Maoists that his family would suffer if he
continued to refuse to support the Maoists, that he had been shoved by about 25
Maoists during a trip to spread his political views, and that he had sent his son to
study in India because of safety concerns.
The wife gave similar testimony. She referred to loud, threatening calls at
home, intimidating questions at her shop, and injury to her son from 15-20 people
with swords.
The immigration judge credited the couple’s testimony, finding that the
husband and wife were credible. But, the judge also found that the testimony had
not satisfied the family’s steep evidentiary burden. In making this finding, the
immigration judge discounted the husband’s shoving incident because it did not
show persecution, regarded the Maoists’ primary motivation to be financial rather
than concern over the husband’s political affiliation with a competing political
party, and the injury to the son as separate from persecution against the three
petitioners (the husband, wife, and daughter). The Board agreed with the
immigration judge and dismissed the appeal.
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We must uphold the Board’s determination as long as another adjudicator
could have reasonably arrived at the same result. Applying this deferential
standard, we must uphold the Board’s determination.
In challenging these findings, the Petitioners point to threats by the Maoists.
But, “[t]hreats alone generally do not constitute actual persecution.” Vatulev v.
Ashcroft, 354 F.3d 1207, 1210 (10th Cir. 2003).
The immigration judge acknowledged that some of the testimony went
beyond threats. For example, the husband testified that he had been shoved when
trying to voice support for his political views. But, as the immigration judge
acknowledged, this incident took place twelve hours away from the family home.
Some of the testimony arguably covered physical intimidation based on the
family’s resistance to the Maoists’ recruitment efforts. But again, the evidence
did not compel a different result. Though the evidence could have suggested
intimidation based on the family’s political views, the immigration judge could
also have inferred that the Maoists’ motivation involved financial considerations
rather than hostility to the husband’s political opinions. See Rivera-Barrientos v.
Holder, 666 F.3d 641, 646 (10th Cir. 2012) (“The Supreme Court has clarified that
a group’s attempt to coerceively recruit an individual is not necessarily
persecution on account of political opinion.”).
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A reasonable adjudicator could have sided with the family on its request for
asylum. But, a reasonable adjudicator could also have rejected the request. In
these circumstances, our deferential standard of review requires us to deny the
petition.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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