Gurung v. Lynch

Not For Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 14-1428

BIRENDRA KUMAR GURUNG,

Petitioner,

v.

LORETTA E. LYNCH,*
ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Thompson, and Barron,
Circuit Judges.

Stephanie F. Dyson and Cayer Dyson Law, P.C., on brief for
petitioner.
Jeffrey R. Meyer, Attorney, Office of Immigration Litigation,
Civil Division, U.S. Department of Justice, Joyce R. Branda, Acting
Assistant Attorney General, Civil Division, and Stephen J. Flynn,
Assistant Director, Office of Immigration Litigation, on brief for
respondent.

August 12, 2015

*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch is substituted for former Attorney General Eric H.
Holder, Jr. as respondent.
 TORRUELLA, Circuit Judge. Birendra Kumar Gurung is a

native and citizen of Nepal who legally entered the United States

on June 25, 2007, and received authorization to remain until

October 1, 2007, pursuant to a H2-B non-immigrant visa. Gurung

overstayed his visa and some three-and-a-half years later filed an

application for asylum based on his alleged fear of returning to

Nepal because of threats by Maoist communists. Gurung also applied

for withholding of removal and protection under the United Nations

Convention Against Torture ("CAT"). He now concedes removability

but seeks judicial review of a final order entered by the Board of

Immigration Appeals ("BIA"), which affirmed the denial of his

requests by an Immigration Judge ("IJ"). For the reasons explained

below, we deny the petition for review.

I. Background1

The following facts are taken from Gurung's testimony in

support of his application before the IJ. See Chhay v. Mukasey,

540 F.3d 1, 4 (1st Cir. 2008). Gurung owned a grocery store when

he was living in Nepal and is married with two children who still

live there. In October 2000, Gurung joined the Nepalese Congress

1
The recent history of Nepal is marked by a civil war. In 1996,
following years of failed pro-democracy movements from groups
opposing the ruling royal dynasty and seeking greater social
equality, the Communist Party of Nepal ("Maoist") launched an armed
struggle. The Government of Nepal and the Maoists engaged in an
armed conflict that left thousands dead or missing. See generally
U.N. High Comm'r for Human Rights, Nepal Conflict Report, 14-15
(Oct. 2012), http://www.ohchr.org/Documents/Countries/NP/OHCHR_
Nepal_Conflict_Report2012.pdf.

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Party ("NCP") and became president of the Maghthana village

committee, for which he recruited members and disseminated

information about the party. He testified that in 2004 he was

working at his grocery store when four men came in and accused him

of speaking against the Maoists at a public meeting of the NCP.

The men beat him with a stick, but he never sought medical

treatment. Though he did go to a police station, they failed to

take a report because the police were too busy fighting the

Maoists. Some days later, army soldiers came to his village and he

told one of them that the Maoists were hiding in another village

called Tiwari. The soldiers then went after the Maoists, and

Gurung later heard that two of the Maoists disappeared.

A year after these incidents, Gurung, who happened to be

a board member for a high school at the time, heard news on the

radio that the Maoists were taking over schools and forcing

students and teachers to participate in their rallies. His school,

however, decided that they would defy the Maoists if they ever

attempted such actions against them. One day, the Maoists came to

the school and beat Gurung with a bicycle chain. He was taken to

a health post where medical treatment was offered, but since his

injuries were not severe, he left without receiving treatment.

Nine months later, Gurung received a phone call from

someone identifying himself as a Maoist and telling Gurung to stop

opposing the Maoists or they would kill him.

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 Fourteen months after the phone threat, Gurung was having

dinner at home when a group of Maoists entered his house and asked

him to join their cause. Unpersuaded, he argued that it was his

fundamental right to choose a different political ideology. But

the Maoists did not stop there. Gurung testified that they tied

his hands behind his back and put a knife to his neck. They also

threatened to cut his hand, throat, and tongue if Gurung continued

to speak out against them.

Gurung had had enough. He went to Kathmandu, obtained a

visa, and came to the United States. He did not apply for asylum

upon his arrival because he hoped things would improve in Nepal

after an election that was scheduled for 2008. In December 2010,

Maoists captured his property and attacked his father. Gurung now

fears the possibility of being harmed or persecuted if he is

removed to Nepal.

II. Procedural History

Having the benefit of both a BIA opinion and the IJ's

decision in this case, we examine both. See Ahmed v. Holder, 765

F.3d 96, 99 (1st Cir. 2014) ("Because the BIA wrote separately

while also approving the IJ's decision, our review is directed at

both of those decisions."). The IJ denied Gurung's requests after

holding a hearing in which she concluded that Gurung's application

for asylum was time-barred because it was filed more than a year

after Gurung arrived in the United States. Authority to apply for

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asylum "shall not apply to an alien unless the alien demonstrates

by clear and convincing evidence that the application has been

filed within 1 year after the date of the alien's arrival in the

United States." 8 U.S.C. § 1158(a)(2)(B). Nevertheless, the IJ

considered Gurung's application under the exceptions provided for

late filings. See Chhay, 540 F.3d at 5 ("[A]n alien who files for

asylum outside the one-year window may qualify by showing either

extraordinary circumstances or changed country conditions.");

Ferdinandus v. Gonzales, 504 F.3d 61, 62 (1st Cir. 2007)

(explaining that an alien must show "changed or extraordinary

circumstances excusing [his or] her delay").

Gurung argued that the recent attack against his father

constituted changed circumstances. However, the IJ thought those

events to be consistent with the conditions faced by the Petitioner

in Nepal before his arrival in the United States, and thus did not

represent changed country conditions. The BIA agreed with the IJ's

determinations, but in reaching its conclusions, it declined to

review the IJ's finding that Gurung's application for asylum was

untimely, and thus its review did not require an analysis for

changed country conditions pursuant to the exceptions to timely-

filed petitions contained in 8 U.S.C. § 1158(a)(2). Instead, the

BIA held on the merits that Gurung simply did not present

sufficient evidence to meet his burden of proof for asylum, which

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required him to establish that he had a well-founded fear of

persecution if returned to Nepal.

The BIA also declined to address the IJ's credibility

determinations, but agreed with her conclusions stating that even

though Gurung submitted letters showing that he had participated in

the NCP and favored democracy, there was no record of any of the

incidents with the Maoists he had described in his testimony.2

Because Gurung could not establish that he had been persecuted in

the past, the BIA stated that he was not entitled to a presumption

of future persecution and thus is ineligible for prospective

relief.

With this backdrop, because Gurung had failed to meet the

lower burden for asylum, the IJ and the BIA agreed that he also

failed to establish the higher burden for withholding of removal or

protection under the CAT, which required him to establish a clear

probability of persecution or that it is more likely than not that

he will be tortured upon returning to Nepal, respectively.

2
The IJ concluded that -- even assuming that Gurung's testimony
was credible -- he failed to meet his burden of proof by not
providing sufficient corroborating evidence that was reasonably
available or could be obtained. The IJ stated that she would
"expect corroborating evidence" or "some mention by the [NCP] of
Gurung's problems in Nepal because of his very participation, and
involvement in that party." And the IJ expected that documentation
of the seizure of Gurung's father's property would exist.
Additionally, the IJ found that Gurung seemed unresponsive at times
and that the Department of State Country Report for Nepal states
that the Maoists were returning seized property as required by a
Comprehensive Peace Agreement.

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 This petition for review ensued.

III. Discussion

We first review Gurung's application for asylum.3 In

doing so, we must accept the BIA's and the IJ's findings of fact

"unless any reasonable adjudicator would be compelled to conclude

to the contrary." Sela v. Mukasey, 520 F.3d 44, 46 (1st Cir. 2008)

(quoting 8 U.S.C. § 1252(b)(4)(B)). That is, we review the BIA's

decision under a deferential substantial evidence standard.

Melhem, 500 F.3d at 81. Additionally, legal arguments are reviewed

de novo, but with deference to the agency's interpretation of its

statutes and regulations. Pulisir v. Mukasey, 524 F.3d 302, 307

(1st Cir. 2008).

To be eligible for asylum, an alien must establish that

he is a refugee and that he is unwilling to return to his country

"because of persecution or a well-founded fear of persecution on

3
There is no dispute that Gurung's application for asylum was not
filed within one year of arriving in the United States. However,
while we generally lack jurisdiction under 8 U.S.C. § 1158(a)(3) to
consider applications for asylum that are found by the agency to be
time-barred, here the BIA expressly declined to address the
untimely determination made by the IJ and instead considered the
merits of Gurung's claims. Cf. Oroh v. Holder, 561 F.3d 62, 67
(1st Cir. 2009) ("Both the IJ and the BIA concluded that no
exceptions applied to excuse Oroh's untimely asylum application.
We are without jurisdiction to review that conclusion.");
Ferdinandus, 504 F.3d at 62 ("[W]e lack jurisdiction over
Ferdinandus's asylum application because the BIA's timeliness
determination is not reviewable."); Melhem v. Gonzales, 500 F.3d
78, 81 (1st Cir. 2007) ("[W]e lack jurisdiction over Melhem's
asylum application because the IJ found his application time-barred
and the BIA affirmed that determination.").

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account of race, religion, nationality, membership in a particular

social group, or political opinion." 8 U.S.C. §§ 1101(a)(42)(A),

1158(b)(1)(B). While asylum is discretionary, withholding of

removal provides mandatory relief. See Romilus v. Ashcroft, 385

F.3d 1, 8 (1st Cir. 2004).

To be eligible for withholding of removal, an applicant

must prove that it is more likely than not that he will be subject

to persecution on account of a protected ground should he be

repatriated. Chhay, 540 F.3d at 6 (quoting Pulisir, 524 F.3d at

308); see also 8 U.S.C. § 1231(b)(3)(A) ("[T]he Attorney General

may not remove an alien to a country if the . . . alien's life or

freedom would be threatened . . . ."). Thus, for withholding of

removal, Gurung must establish that his "life or freedom [will] be

threatened in [Nepal] on account of race, religion, nationality,

membership in a particular social group, or political opinion."

8 C.F.R. § 1208.16(b); see also Sela, 520 F.3d at 46.

An applicant may carry this burden either by

demonstrating past persecution or a likelihood of future

persecution. See, e.g., Melhem, 500 F.3d at 81; see also 8 C.F.R.

§ 1208.16(b)(1)(i) ("If the applicant is determined to have

suffered past persecution in [Nepal] . . . it shall be presumed

that the applicant's life or freedom would be threatened in the

future . . . ."). This is also referred to as a "clear

probability" standard, which is more difficult to meet than the

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"well-founded fear" standard for asylum. See I.N.S. v. Stevic, 467

U.S. 407, 425-26 (1984); Tay-Chan v. Holder, 699 F.3d 107, 111 (1st

Cir. 2012) ("Withholding of removal imposes a more stringent burden

of proof on an alien than does a counterpart claim for asylum,

because the alien must demonstrate a clear probability of

persecution, rather than merely a well-founded fear of

persecution." (internal citations and quotation marks omitted)).

In petitions for asylum examined under the lower standard

of proof, "[w]here the trier of fact determines that the applicant

should provide evidence that corroborates otherwise credible

testimony, such evidence must be provided unless the applicant does

not have the evidence and cannot reasonably obtain the evidence."

8 U.S.C. § 1158(b)(1)(B)(ii).4 Indeed, corroboration may be

required by an IJ, even where an applicant's testimony is deemed

credible. See Soeung v. Holder, 677 F.3d 484, 488 (1st Cir.

2012). When reviewing the decision of an IJ, we may not "reverse

a determination . . . with respect to the availability of

corroborating evidence . . . unless the court finds . . . that a

reasonable trier of fact is compelled to conclude that such

4
As for petitions for withholding of removal, an applicant's
testimony may be sufficient to sustain this burden of proof without
corroboration. 8 C.F.R. § 1208.16(b). But, in evaluating the
applicant's case, if the IJ determines that the alien's "testimony
is not itself compelling[,] the absence of easily obtainable
corroborating documentation can be the final straw." Chhay, 540
F.3d at 6.

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corroborating evidence is unavailable." 8 U.S.C. § 1252(b)(4);

see also Chhay, 540 F.3d at 6.

Because claims for withholding of removal require a

higher level of proof than claims for asylum, "[i]t follows that an

alien who cannot prevail on a claim for asylum must also lose on a

counterpart claim for withholding of removal." Seng v. Holder, 584

F.3d 13, 20 (1st Cir. 2009).

Here, the IJ stated that she listened to Gurung's

testimony, which "on some occasions . . . was not responsive to the

questions being asked of him." Additionally, the only documentary

evidence provided by Gurung was three letters from the NCP, none of

which corroborated the incidents narrated in his testimony. One of

the letters stated that he was a chairperson from 2004 to 2006 and

that he helped to promote democracy. Another letter stated that he

helped the NCP extend democracy, while the third letter stated that

he was an activist of the NCP. As to the allegations of property

seizures, Gurung only presented a letter from his wife and a letter

from his father.

On appeal, Gurung argues that he was not given formal

notice that corroboration was required and should have been

produced at the hearing and cites to Soeung in support of the

proposition that the IJ was required to afford said notice.

Furthermore, he asserts that, because the NCP is a political party,

there is no reason to expect it to issue reports on crimes suffered

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by its members. Such evidence, he claims, should be requested from

law enforcement organizations. Finally, regarding the lack of

corroborating evidence on the seized property, Gurung explains that

his family did not report this to the police because the police do

not get involved in disputes with the Maoists. In fact, he argues

that he had attempted to report incidents to the police in the

past, to no avail.

Contrary to Gurung's claim, Soeung does not specifically

require that notice of reasonably available corroborating evidence

be given to the petitioner. Instead, it states that before an

applicant's failure to produce corroborating evidence can be used

against him -- in the context of a petition for asylum -- "there

must be explicit findings that (1) it was reasonable to expect the

applicant to produce corroboration[,] and (2) the applicant's

failure to do so was not adequately explained." Soeung, 677 F.3d

at 488 (citing Chukwu v. Att'y Gen., 484 F.3d 185, 191-92 (3d Cir.

2007) (reviewing a denial of a timely petition for asylum)).

Because we conclude that the IJ did make the two findings

required by Soeung, we are unpersuaded by Gurung's argument. The

IJ considered and explained what was stated in each of the letters

provided by Gurung, and described the kind of alternate documentary

evidence and reports that Gurung could have reasonably produced to

corroborate his testimony. The IJ added that "[t]he Court would

expect corroborating evidence in the form of some mention by the

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[NCP] of the respondent's problem in his country because of his

very participation and involvement in that party." The IJ also

found it "unpersuasive" that some of the incidents described by

Gurung were never reported at all. She concluded that "[Gurung]

failed to provide evidence that would corroborate his testimony and

that he did not demonstrate that evidence could not reasonably be

obtained." We are required to review these findings under a

deferential standard. Melhem, 500 F.3d at 81.

As in Sela and Chhay, there is nothing in the record that

compels us to conclude that it was not reasonable for Gurung to

produce corroborating evidence to meet his burden, or that he could

not have reasonably obtained any such corroborating evidence

regarding the events he testified about -- especially considering

that he was in communication with his political party, his father,

and his wife. We are also unpersuaded by Gurung's justifications

on appeal. The fact that the NCP is not a law enforcement agency

does not explain why Gurung could not reasonably obtain from them,

a third party, or an institution any evidence attesting to the

veracity of the incidents described in his testimony. Thus, we

agree that -- for purposes of asylum and withholding of removal --

Gurung failed to meet his burden of proof that he has a well-

founded fear of being persecuted because he has been persecuted in

the past, or that there is a clear probability that he will be

persecuted.

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 This brings us to Gurung's request for relief under the

CAT. To prevail, Gurung must prove that it is more likely than not

that he will be tortured upon returning to Nepal. See 8 C.F.R.

§ 1208.18(a)(1); 8 C.F.R. § 1208.16(c)(2); Melhem, 500 F.3d at 82.

A petitioner may establish this risk of future harm by presenting

evidence that this would occur at the instigation of or by willful

blindness by the law enforcement authorities of the country. See

Chhay, 540 F.3d at 7.

As stated above, in reviewing the petitions for asylum

and withholding of removal, we agree that Gurung failed to meet the

burden of showing that he had been persecuted, that it is more

likely than not that he will be persecuted upon his return, or that

there is a clear probability that this will happen. Thus, we reach

the same conclusion with regard to the CAT claim. Gurung did not

prove that it is more likely than not that he will be tortured upon

his return. Melhem, 500 F.3d at 82.

Furthermore, we agree with the Government's position that

it is inconsistent for Gurung to argue that he failed to report the

incidents described in his testimony because the police are

ineffective in their fight against the Maoists. If the police are

fighting against the Maoists in the first place, it cannot also be

more-likely-than-not that they would instigate or acquiesce to

torture activities by the Maoists. We note that this argument also

contradicts some of Gurung's other claims that he and his family

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failed to report to the police some of the incidents described in

his testimony because the police do not get involved in disputes

with the Maoists.

IV. Conclusion

For the foregoing reasons, we agree with the BIA that

Gurung failed to show that he is entitled to the relief requested.

The petition for review is denied.

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