Pyakurel v. Lynch

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

FOR THE TENTH CIRCUIT November 3, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
NIRMAL PYAKUREL,

Petitioner,

v. No. 14-9544
(Petition for Review)
LORETTA E. LYNCH, United States
Attorney General,*

Respondent.
_________________________________

ORDER AND JUDGMENT**
_________________________________

Before LUCERO, MATHESON, and PHILLIPS, Circuit Judges.
_________________________________

Nirmal Pyakurel seeks review of a Board of Immigration Appeals (BIA) order

affirming an immigration judge’s decision denying his application for asylum,

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

Exercising jurisdiction under 8 U.S.C. § 1252(a)(1), we deny Pyakurel’s petition for

review.

*
In accordance with Fed. R. App. P. 43(c)(2), Loretta E. Lynch is substituted
for Eric H. Holder, Jr., as the respondent in this action.
**
This order and judgment is not binding precedent, except under the doctrines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.
 I. FACTUAL BACKGROUND

Pyakurel, a citizen of Nepal, first entered the United States on July 19, 2008,

as a non-immigrant visitor authorized to remain until January 18, 2009. On July 13,

2009, still residing in the United States, Pyakurel filed an application for asylum,

withholding of removal, and protection under the CAT, testifying that he could not

return to Nepal for fear of persecution from the Maoists.1

In Nepal, Pyakurel was a well-known actor, documentary filmmaker, script

writer, and author. Although Pyakurel “adopted a literary style which was satirical

and therefore not complimentary to the Maoists,” he is not involved in any political

party in Nepal and testified that neither he nor his family directly opposes the

Maoists. R. at 95. In his application for asylum, though, Pyakurel argued that various

encounters he and his family had with the Maoists between 2003 and 2008 rose to the

level of past persecution or established a well-founded fear of persecution upon any

return to Nepal.

In 2003, Pyakurel received a threatening telephone call at home from a man

who identified himself as a Maoist. The caller said, “[Y]ou are going against us, so

we will not leave you alone.” R. at 93. Mrs. Pyakurel testified that she and Pyakurel

“did not take [the call] seriously.” R. at 93.

More than six months later, Pyakurel met with the Maoists face-to-face. He

testified that the Maoists had approached him and asked him to accompany them to

1
We note that Mr. Pyakurel’s wife, Anjani Pyakurel, is a derivative
beneficiary of Mr. Pyakurel’s application for asylum. Her asylum claim rests on Mr.
Pyakurel’s claim. 8 U.S.C. § 1158(b)(3); 8 C.F.R. § 1208.3(a).
2
an undisclosed location.2 After a two-hour conversation about a book Pyakurel was

writing, the Maoists asked him to join their party. After he asked for time to think

about it, they agreed and took him back to where they first approached him. Although

Pyakurel testified that he voluntarily complied, he felt he was not free to refuse the

Maoists’ invitation and characterized the incident as being kidnapped. Pyakurel

testified that after this incident he went “underground,” which resulted in an 80%

decrease in his professional workload. R. at 5 n.4. Pyakurel also testified that he and

his family had fewer contacts with the Maoists after the kidnapping.

In 2008, two Maoists approached Pyakurel as he worked on a movie set and

asked him to prepare a video promoting their cause. Pyakurel declined, citing a lack

of time, and the two Maoists became angry, kicking the lights and camera on set.

After this incident, Pyakurel returned to his home and family in Kathmandu.

Pyakurel testified that the Maoists called his wife at least one other time and,

another time, searched his home and pushed his wife. Pyakurel also testified that

someone threw rocks at his home during a rally after the 2008 national election. After

the Maoists won the election, Pyakurel came to the United States with his wife and

one of his sons, leaving his eldest son in Nepal to look after the family’s property in

Kathmandu. In 2010, members of the Young Communist League (YCL), a Maoist-

affiliated organization, physically assaulted Pyakurel’s eldest son in Nepal. His son

2
The BIA order does not describe Pyakurel’s kidnapping in significant detail.
We note, however, that the BIA cites to Pyakurel’s testimony, which describes how
the Maoists blindfolded him and drove him to a location about thirty minutes away
from where they had first approached him. They blindfolded him on the return trip,
too.
3
did not require medical attention, and Pyakurel did not know why the YCL members

had attacked his son, although his son said that a few of the members “remarked that

he was the ‘son of an actor’” before the assault. R. at 94–95.

Citing these encounters with the Maoists and his suspected placement on a

“blacklist,” Pyakurel says that he would not feel secure returning to Nepal. R. at 95.

II. AGENCY DECISIONS

On November 4, 2011, an immigration judge (IJ) orally denied Pyakurel’s

application for asylum. The IJ found the Pyakurels’ testimony “essentially credible

and truthful as to facts within their personal knowledge,” but also found they had

embellished certain facts about which they had no personal knowledge. R. at 96–97.

Despite crediting their testimony, the IJ concluded that “the respondents have not

suffered harm sufficient to rise to the level of persecution.” R. at 97. The IJ also

concluded that Pyakurel had not proved a well-founded fear of future persecution.

The IJ concluded that the Maoists were interested in his potential contribution to their

organization, not in harming him because of any of his political opinions or social-

group memberships.

On April 2, 2014, a single member of the BIA affirmed the IJ’s decision in a

brief, four-page order. The BIA agreed with the IJ’s conclusion that Pyakurel’s

“testimony about being detained in 2004 for a short period and [being] asked to

support the Maoist[] party did not amount to persecution.” R. at 4. Specifically, the

BIA concluded that Pyakurel had not experienced past persecution because the

Maoists had not physically harmed him, and he “was able to secure his own release

4
by asking for ‘additional time to think about it.’” R. at 4. The BIA also considered

the intermittent telephone calls and harassment between 2003 and 2008, but found

that the Pyakurels’ experiences in Nepal, “viewed individually or cumulatively,”

“were not severe enough to meet the standard for persecution.” R. at 4. Finally, the

BIA agreed with the IJ that the Pyakurels had failed to show they had an objectively

reasonable fear of future persecution because they “did not demonstrate a pattern or

practice of persecution against a group of similarly situated people on account of a

protected ground.” R. at 4 n.3.

III. DISCUSSION

A. Standard and Scope of Review

When a single member of the BIA enters a brief affirmance order under

8 C.F.R. § 1003.1(e)(5), as here, we review the BIA’s decision as the final order of

removal and “will not affirm on grounds raised in the IJ decision unless they are

relied upon by the BIA in its affirmance.” Uanreroro v. Gonzales, 443 F.3d 1197,

1204 (10th Cir. 2006). But “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).

We review de novo the BIA’s conclusions of law, but we review its findings of

fact under the substantial-evidence standard. Karki v. Holder, 715 F.3d 792, 800

(10th Cir. 2013). Under this standard, “our duty is to guarantee that factual

determinations are supported by reasonable, substantial and probative evidence

considering the record as a whole.” Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th

5
Cir. 2004). Thus, “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).

B. Asylum and Withholding of Removal

To qualify for a discretionary grant of asylum, Pyakurel must prove he is a

refugee. Karki, 715 F.3d at 800. He can establish refugee status only by:

(1) “showing past persecution, which creates a rebuttable presumption of a well-

founded fear of future persecution”; (2) “showing ‘past persecution so severe as to

demonstrate compelling reasons for being unwilling or unable to return,’ even

without any danger of future persecution”; or (3) “showing a well-founded fear of

future persecution.” Id. at 801 (quoting Krastev v. INS, 292 F.3d 1268, 1270–71 (10th

Cir. 2002)). Upon showing persecution, a petitioner must also establish that “race,

religion, nationality, membership in a particular social group, or political opinion was

or will be at least one central reason for persecuting” him. 8 U.S.C.

§ 1158(b)(1)(B)(i).

We cannot say on this record that Pyakurel’s encounters with the Maoists

compel the conclusion that he has suffered past persecution or has a well-founded

fear of future persecution. On the contrary, we find substantial evidence in the record

to support the BIA’s determinations. Therefore, we affirm the BIA order denying

asylum and withholding of removal.

6
 1. Past Persecution

Substantial evidence supports the BIA’s determination that Pyakurel failed to

establish past persecution. “Persecution is ‘the infliction of suffering or harm upon

those who differ (in race, religion, or political opinion) in a way regarded as

offensive and requires more than just restrictions or threats to life and liberty.’”

Chaib v. Ashcroft, 397 F.3d 1273, 1277 (10th Cir. 2005) (quoting Woldemeskel v.

INS, 257 F.3d 1185, 1188 (10th Cir. 2001)). Given this standard, the telephone calls

Pyakurel and his family received over a five-year period, standing alone, certainly do

not constitute persecution. The BIA credited Pyakurel’s account that the Maoists had

harassed him and his family with telephone calls and personal visits. But it concluded

that these actions did not establish persecution, because they decreased over time and

not even the Pyakurels took some of the threats seriously. The significance of the

Maoist encounters declines somewhat when considered in the context that the

encounters all but stopped after 2008—or 2010 if one assumes that the eldest son’s

beating related to the previous Maoist encounters. See Vatulev v. Ashcroft, 354 F.3d

1207, 1210 (10th Cir. 2003) (“[T]he sheer length of time—nearly ten years—that has

passed since receipt of that threat diminishes its present significance.”). The BIA also

considered and properly rejected Pyakurel’s argument that his going underground had

resulted in economic persecution, concluding that a reduction in workload is

insufficient. See Zhi Wei Pang v. Holder, 665 F.3d 1226, 1231–32 (10th Cir. 2012)

(noting that economic persecution is persecution that “jeopardize[s] [one’s] life or

7
freedom” and rises to the level of “large-scale confiscation of property due to [one’s]

political opinion”).

Similarly, substantial evidence supports the BIA’s conclusion that Pyakurel’s

two-hour detention did not constitute persecution. Kidnapping alone may not

constitute persecution, especially where the kidnapping does not involve extended

periods of detention or serious bodily injury. Compare Kapcia v. INS, 944 F.2d 702,

704, 708 (10th Cir. 1991) (finding no past persecution even where asylum applicant

had been detained twice for two-day periods during which he was beaten and

interrogated, his parents’ home had been searched, his work locker had been

repeatedly broken into, he received unfavorable work assignments and no bonuses,

and he was conscripted into the army and constantly harassed there), with

Nazaraghaie v. INS, 102 F.3d 460, 463–64 (10th Cir. 1996) (suggesting asylum

applicant’s beating and ten-month imprisonment constituted non-severe past

persecution). The BIA found that Pyakurel’s lack of physical injury, relatively short

detention, and ability to procure his own release weighed against a finding of past

persecution. Given the more severe harm that did not constitute persecution in

Kapcia, the evidence here compels the same conclusion.

Still, Pyakurel argues on appeal that the BIA failed to cumulatively examine

all of his family’s interactions with the Maoists when deciding whether he had met

his burden of showing past persecution or a well-founded fear of future persecution.

But the BIA order proves otherwise. Specifically, the BIA noted the kidnapping,

considered the evidence that the Pyakurels “were periodically harassed and received

8
anonymous telephone calls between 2003 and 2008,” described why the beating of

the Pyakurels’ eldest son was unpersuasive evidence of persecution, and then said

that the BIA “share[d] in the [IJ]’s determination that viewed individually or

cumulatively, [the Pyakurels’] experiences in Nepal were not severe enough to meet

the standard for persecution.” R. at 4 (emphasis added). Looking at the IJ’s more

detailed opinion addressing each of these encounters with the Maoists—as we may

because the BIA referenced and relied upon the IJ’s opinion throughout its brief

order, Sarr, 474 F.3d at 790—we are convinced that the BIA considered all asserted

evidence of persecution.

In his effort to satisfy the asylum conditions, Pyakurel tries to favorably

compare his experiences with the Maoists to the experiences endured by successful

asylum applicants. But his cited cases, most unpublished, involved more severe

encounters with government groups or did not speak to the past-persecution issue at

all. See Maharjan v. Holder, 418 F. App’x 658, 659–60 (9th Cir. 2011) (unpublished)

(finding past persecution where asylum applicant was present in room when political

associate was assassinated and applicant was threatened with his life); Basnet v.

Gonzales, 168 F. App’x 278, 284 (10th Cir. 2006) (unpublished) (concluding that the

BIA had failed to consider certain evidence and remanding for refugee-status

determination). His arguments on appeal therefore fail to convince us that the record

evidence would compel a reasonable adjudicator to find past persecution.

Because Pyakurel failed to show past persecution, we neither presume on his

behalf a well-founded fear of future persecution nor consider whether the past

9
persecution was so severe that he need not show a well-founded fear of future

persecution. See Karki, 715 F.3d at 801.

2. Well-Founded Fear of Future Persecution

Absent a showing of past persecution, Pyakurel can establish refugee status

only by demonstrating a well-founded fear of future persecution. See id. “For a fear

of future persecution to be well-founded, it must be both ‘subjectively genuine and

objectively reasonable.’” Ritonga v. Holder, 633 F.3d 971, 976 (10th Cir. 2011)

(quoting Tulengkey v. Gonzales, 425 F.3d 1277, 1281 (10th Cir. 2005)). In the

asylum context, fear is objectively well-founded if: (1) the applicant may be singled

out for persecution upon returning to his country of origin, or (2) his country has a

pattern or practice of persecuting a group of people similarly situated to the applicant

on account of a protected ground. Id. For the reasons stated below, substantial

evidence supports the BIA’s determination that Pyakurel failed to demonstrate a

well-founded fear of future persecution. Pyakurel’s evidence and arguments on

appeal would not compel a reasonable factfinder to conclude otherwise.

The BIA primarily based its determination that Pyakurel had failed to show a

well-founded fear of persecution on two grounds. First, both the BIA and IJ found

Pyakurel’s assertion that he was “blacklisted” speculative and therefore did not credit

the assertion in considering whether he had a well-founded fear of future persecution.

R. at 4, 96. Second, and more importantly, although the BIA credited Pyakurel’s

testimony that the Maoists had recruited numerous artists to their cause, it found that

he had failed to demonstrate a pattern or practice of persecuting artists. Pyakurel

10
argues on appeal that the BIA discounted evidence in the record “concerning

potentially coercive recruitment of other famous Nepalese artists by the Maoists,” but

refers us to two news stories that are devoid of evidence of persecution. Pet’r’s

Opening Br. 29–30. In the face of such scant evidence of persecution, we cannot say

that a reasonable factfinder would have been compelled to conclude that Pyakurel

had established a well-founded fear of future persecution. Given our deferential

standard of review of immigration decisions, we affirm the BIA order affirming the

IJ’s denial of Pyakurel’s asylum application.3

Because we find that Pyakurel has failed to satisfy the burden of proof for

asylum, he necessarily has failed to meet the more stringent burden of proof for

withholding of removal. See Rodas-Orellana v. Holder, 780 F.3d 982, 987 (10th Cir.

2015) (“For withholding, an applicant must prove a clear probability of persecution

on account of a protected ground.” (quotation marks omitted)); Yuk v. Ashcroft, 355

F.3d 1222, 1236 (10th Cir. 2004) (“Because petitioners failed to meet the lower

standard of showing entitlement to asylum, the IJ correctly denied their application

for withholding of removal.”).

C. Convention Against Torture

Pyakurel also seeks review of the BIA’s denial of his CAT claim. Contrary to

the government’s contention that Pyakurel failed to exhaust his administrative

remedies on this claim by not arguing the issue before the BIA, the BIA order

3
Because we affirm the BIA’s persecution determination, we need not reach
the issue of whether the Maoists targeted Pyakurel on account of a protected ground,
such as his political opinion or membership in a social group.
11
specifically affirmed the IJ’s CAT decision, so we may exercise jurisdiction.

Sidabutar v. Gonzales, 503 F.3d 1116, 1121 (10th Cir. 2007) (explaining that, to

exhaust an issue, an alien must present the issue to the BIA or the BIA must actually

decide the issue). Despite having exhausted his administrative remedies, however,

Pyakurel waived the issue of protection under the CAT because he failed to argue the

issue on appeal. See Krastev, 292 F.3d at 1280 (“Issues not raised on appeal are

deemed to be waived.”). Pyakurel mentions the CAT at the beginning of his briefs

and in reference to other cases. But he never argues that he qualifies for protection

under the CAT legal standard by showing that “it is more likely than not that he . . .

would be tortured.” 8 C.F.R. § 1208.16(c)(2). Pyakurel has failed to even state or tie

any evidence to the CAT standard, thus waiving the issue. See Artur v. Holder, 572

F. App’x 592, 596–97 (10th Cir. 2014) (unpublished) (finding petitioner waived CAT

claim on appeal where petitioner set out CAT legal standard but failed to tie record

evidence to standard).

IV. CONCLUSION

For the foregoing reasons, we deny the petition for review of the BIA order

affirming the IJ’s denial of Pyakurel’s application for asylum, withholding of

removal, and protection under the CAT.

Entered for the Court

Gregory A. Phillips
Circuit Judge

12