UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1002
RAM BAHADUR GURUNG,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: June 28, 2016 Decided: July 15, 2016
Before NIEMEYER, FLOYD, and THACKER, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Dilli Raj Bhatta, BHATTA LAW & ASSOCIATES, New York, New York,
for Petitioner. Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Anthony C. Payne, Assistant Director, Raya
Jarawan, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ram Bahadur Gurung, a native and citizen of Nepal,
petitions for review of an order of the Board of Immigration
Appeals (Board) dismissing his appeal from the immigration
judge’s (IJ) order denying his applications for asylum,
withholding of removal, and protection under the Convention
Against Torture (CAT). For the reasons set forth below, we deny
the petition for review.
Gurung bears the burden of establishing his eligibility for
relief from removal. See Hui Pan v. Holder, 737 F.3d 921, 927
(4th Cir. 2013). To be eligible for asylum, Gurung must show
that he cannot return to Nepal because he has a well-founded
fear of persecution on account of a protected ground. See id.
Gurung can meet his burden by showing he suffered past
persecution or has a well-founded fear of future persecution.
See id. If Gurung demonstrates past persecution, he is entitled
to a rebuttable presumption that he has a well-founded fear of
persecution. See Djadjou v. Holder, 662 F.3d 265, 272 (4th Cir.
2011). The Attorney General may rebut this presumption by
demonstrating by a preponderance of the evidence that “[t]here
has been a fundamental change in circumstances such that the
applicant no longer has a well-founded fear of persecution in
the applicant’s country of nationality.” 8 C.F.R.
§ 208.13(b)(1)(i)(A) (2016); Essohou v. Gonzales, 471 F.3d 518,
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520 (4th Cir. 2006). If the Attorney General rebuts the
presumption, Gurung must establish a well-founded fear of
persecution despite the changed country conditions. See
Mapouya v. Gonzales, 487 F.3d 396, 412 (6th Cir. 2007).
Gurung, like all aliens, faces a higher burden of proof to
establish his entitlement to withholding of removal because he
must show “a clear probability of persecution on account of a
protected ground.” Djadjou, 662 F.3d at 272 (internal quotation
marks omitted). Thus, if Gurung fails to meet his burden of
proof for asylum, he is also ineligible for withholding of
removal. Id.
The scope of our review is narrow. Hui Pan, 737 F.3d at
926. We will affirm so long as the decision “is not manifestly
contrary to law,” id. (internal quotation marks omitted), and is
supported by substantial evidence in the record considered as a
whole, INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). We will
reverse the Board only if “the evidence . . . presented was so
compelling that no reasonable factfinder could fail to find the
requisite fear of persecution.” Id. at 483-84; see also 8
U.S.C. § 1252(b)(4)(B) (2012).
We conclude that substantial evidence supports the finding
that the Attorney General proved by a preponderance of the
evidence that there was a fundamental change in circumstances
such that Gurung no longer has a well-founded fear of
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persecution. The evidence shows that the 2013 elections were a
success for the National Congress Party (NCP) and a defeat for
the Maoists. See, e.g., Kumar v. INS, 204 F.3d 932, 934 (9th
Cir. 2000) (free and fair elections that included alien’s
political party can overcome the well-founded fear presumption).
The Maoists’ penchant for terror and human rights abuses was
diminished as evidenced by the large election turnout despite
the Maoists’ efforts to prevent the election, and the split
within the Maoist party, resulting in some members supporting
democracy. See, e.g., Hoxhallari v. Gonzales, 468 F.3d 179,
185-86 (2d Cir. 2005) (fall of Communist Party in Albania and
resurgence of Democratic Party was a substantial change in
country conditions). Gurung failed to establish that, despite
the changes to Nepal, he still had a well-founded fear of
persecution.
We also conclude that substantial evidence supports the
finding that Gurung was not entitled to protection under the
CAT. To qualify for CAT relief, a petitioner bears the burden
of proof of showing “it is more likely than not that he or she
would be tortured if removed to the proposed country of
removal.” 8 C.F.R. § 1208.16(c)(2) (2016). To state a prima
facie case for CAT relief, a petitioner must show that he or she
will be subject to “severe pain or suffering, whether physical
or mental . . . by or at the instigation of or with the consent
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or acquiescence of a public official or other person acting in
an official capacity.” 8 C.F.R. § 1208.18(a)(1) (2016). Here,
substantial evidence supports the finding that the Nepalese
government, which is headed by the NCP, is not going to
instigate, consent, acquiesce, or turn a blind eye to the
possibility that Gurung may be tortured.
Accordingly, we deny the petition for review. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
PETITION DENIED
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