Thapaliya v. Holder, Jr. ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1582
KISHAN THAPALIYA,
Petitioner,
v.
ERIC H. HOLDER, JR., United States Attorney General,
Respondent.
PETITION FOR REVIEW FROM AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Stahl and Lipez,
Circuit Judges.
Steve J. Gutherz on brief for petitioner.
Stuart F. Delery, Assistant Attorney General, M. Jocelyn Lopez
Wright, Senior Litigation Counsel, Office of Immigration
Litigation, and Margot L. Carter, Trial Attorney, on brief for
respondent.
April 24, 2014
HOWARD, Circuit Judge. Petitioner Kishan Thapaliya, a
native of Nepal, suffered a single beating by a group of Maoists in
April 2003 and now challenges the decision of the Board of
Immigration Appeals ("Board") which affirmed the Immigration
Judge's ("IJ") denial of his request for asylum. The record
evidence does not compel a conclusion contrary to the agency's
decision, even though the Maoists also may have threatened
Thapaliya with a gun during the isolated event. Accordingly, we
deny the petition.
I. Background
Thapaliya entered the United States from Nepal in August 2004
on a student visa. Because he failed to carry a full course-load,
the Department of Homeland Security eventually initiated removal
proceedings against him. Thapaliya conceded removability, and, in
May 2010, sought asylum, withholding of removal, protection under
the Convention Against Torture ("CAT"), and, alternatively,
voluntary departure.
In support of his petition, Thapaliya presented evidence to
the IJ regarding an incident that occurred in Nepal on April 15,
2003. According to his testimony, a number of armed Maoist-rebels
came to his family's home that night looking for his father, who
was an active member of an anti-Maoist political group. Since
their target was not home, the armed rebels set their sights on
Thapaliya, who also was active in the anti-Maoist movement as a
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student-member. Thapaliya testified that the men beat him severely
and pointed a gun at him. When Thapaliya's brother tried to
intervene, the Maoists beat him as well. Thapaliya suffered
injuries to his head and chin, as well as bruising all over his
body.
A little more than a year later, Thapaliya followed his
father's advice and left Nepal. The rest of his family stayed
behind. From the April 2003 incident to the time that he left for
this country in August 2004, Thapaliya suffered no threats or
further harm. According to Thapaliya, the Maoists later became
part of the Nepalese government in 2006 and gained control of the
government in 2008. Still, no harm has come to his family members,
who have remained in Nepal.
Although crediting Thapaliya's account, the IJ denied the
application for asylum. The IJ concluded that Thapaliya failed to
establish that he was a victim of past persecution because the
April 2003 event was isolated and the government neither
participated nor acquiesced in it. The IJ further decided that
Thapaliya had failed to demonstrate a well-founded fear of future
persecution because (1) he remained in Nepal for over a year after
the incident before coming to the United States without suffering
any additional harm, and (2) his family (including his father) had
not suffered any harm since the 2003 incident. The IJ concluded
that Thapaliya also failed to establish a claim for either
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withholding of removal or protection under CAT, and granted his
alternative request for voluntary departure.
Thapaliya appealed to the Board, which affirmed the IJ's
decision, largely reiterating the IJ's reasoning. The Board agreed
that Thapaliya's claims did not establish past persecution and that
he did not have a well-founded fear of future persecution. Like
the IJ, the Board emphasized that Thapaliya remained unharmed in
Nepal for more than a year after the April 2003 encounter, and that
his family has resided in Nepal without incident since 2003 despite
the Maoist government takeover in 2008. Accordingly, the Board
affirmed the IJ's decision to deny his requests for asylum,
withholding of removal, and protection under CAT. Thapaliya
petitioned for review, challenging only the denial of asylum.1
1
Thapaliya's brief is silent on CAT and, although it refers to
withholding of removal, it offers no advocacy on that issue.
Therefore, we consider these claims abandoned. See Anacassus v.
Holder, 602 F.3d 14, 19 n.5 (1st Cir. 2010). In any event, an
argument for withholding of removal would necessarily fail as well
given our analysis on his asylum claim. See Stanciu v. Holder, 659
F.3d 203, 208 (1st Cir. 2011).
The IJ additionally concluded that Thapaliya's asylum
application was untimely, rejecting his claim that material
circumstances excused the delay. The Board expressly declined to
address Thapaliya's challenge to this aspect of the IJ's decision,
choosing instead to square up on the merits alone. Before us,
Thapaliya continues to argue that the IJ erred in finding that his
asylum application was untimely, which the government both
dismisses as moot and further questions our jurisdiction to review
the IJ's time bar conclusion. We, like the Board, center on the
merits.
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II. Discussion
Where, as here, the Board "affirmed the IJ's ruling while
discuss[ing] some of the bases for the IJ's opinion, we review both
the IJ's and [the Board's] opinions." Costa v. Holder, 733 F.3d
13, 16 (1st Cir. 2013) (first alteration in original) (internal
quotation marks omitted). The agency's factual conclusions are
reviewed under the deferential "substantial evidence" standard,
and, thus, we uphold the decision if "it is supported by
reasonable, substantial, and probative evidence on the record
considered as a whole." Sunarto Ang v. Holder, 723 F.3d 6, 10 (1st
Cir. 2013) (internal quotation marks omitted). Reversal is
warranted only "if a reasonable adjudicator would be compelled to
conclude to the contrary." Id. (internal quotation marks omitted).
"As a prerequisite to asylum eligibility, an alien bears the
burden of establishing that he is a refugee," which is defined as
a "person who cannot or will not return to his country of
nationality or avail himself of that country's protection because
of persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion." Aguilar-Solis v. I.N.S., 168 F.3d
565, 569 (1st Cir. 1999) (internal quotation marks omitted). Thus,
an alien must prove past persecution, which gives rise to an
inference of future persecution, or otherwise establish a
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well-founded fear of future persecution based on a protected
ground. Sunarto Ang, 723 F.3d at 10. This frames our discussion.
A. Past Persecution
Thapaliya takes aim at the Board's decision that the single
April 2003 event does not amount to past persecution. Establishing
past persecution, however, can be a "daunting task" for which
petitioners "bear a heavy burden." Butt v. Keisler, 506 F.3d 86,
90 (1st Cir. 2007) (alteration omitted) (internal quotation marks
omitted). "The baseline rule is that past persecution requires
more than mere discomfiture, unpleasantness, harassment, or unfair
treatment." Id. at 90 (internal quotation marks omitted). "The
severity, duration, and frequency of physical abuse are factors
relevant to this determination, as is whether harm is systematic
rather than reflective of a series of isolated incidents." Barsoum
v. Holder, 617 F.3d 73, 79 (1st Cir. 2010) (citation and internal
quotation marks omitted). Accordingly, isolated beatings have been
commonly rejected as grounds for persecution. See Anacassus v.
Holder, 602 F.3d 14, 19-20 (1st Cir. 2010)("'isolated beatings,
even when rather severe, do not establish systematic mistreatment
needed to show persecution'"); see also Hong Chen v. Holder, No.
13-1294, 2014 WL 983309, *4 (1st Cir. Mar. 14, 2014); Sunarto Ang,
723 F.3d at 11; Decky v. Holder, 587 F.3d 104, 111 (1st Cir. 2009);
Bocova v. Gonzales, 412 F.3d 257, 263-64 (1st Cir. 2005),
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superceded in part on other grounds as recognized by Ivanov v.
Holder, 736 F.3d 5, 20 (1st Cir. 2013).
Here, there is undisputed evidence that on one occasion a
group of Maoists beat Thapaliya fairly severely, apparently due to
his political affiliations. More than a year passed before
Thapaliya left Nepal, and during that time neither he nor his
family suffered such harm again. Thus, the singular April 2003
incident of violence seems to readily align with our precedent on
isolated beatings.2 Thapaliya, however, contends that the Maoists
threatened his life during the violent episode and argues that a
death threat in the midst of a single act of violence is enough to
establish past persecution.
In the abstract, Thapaliya's position seems sound, as we have
held that credible, specific threats may rise to the level of
persecution in some circumstances if they are severe enough, and
"threats of murder fit squarely within this rubric." Javed v.
Holder, 715 F.3d 391, 395-96 (1st Cir. 2013) (alteration omitted)
(internal quotation marks omitted); see Amouri v. Holder, 572 F.3d
29, 33 (1st Cir. 2009); Hincapie v. Gonzales, 494 F.3d 213, 217
2
See, e.g., Sunarto Ang, 723 F.3d at 11 (two incidents over
the course of twenty-five years, one stabbing and one beating, are
too isolated to constitute persecution); Decky, 587 F.3d at 111 (a
single severe beating during riots, without other systematic
mistreatment of comparable severity, support finding that the
beating was an isolated event, not persecution); Bocova, 412 F.3d
at 263 (two beatings by the police separated by more than two
years, one "relatively minor" and another "more severe," does not
compel a finding of persecution).
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(1st Cir. 2007); Un v. Gonzales, 415 F.3d 205, 210 (1st Cir. 2005).
Considering whether the death threats are imminent is part of the
calculus, however. See Javed, 715 F.3d at 396; Ravix v. Mukasey,
552 F.3d 42, 46 (1st Cir. 2009) (per curiam). And, here, the IJ,
although crediting Thapaliya's account, noted that his description
of the event "was somewhat vague." In fact, the IJ did not render
findings suggesting that the attack by the Maoists involved a death
threat, and the role of the firearm during the beating is not
otherwise pellucid on the record. Instead, it appears that the
agency cast the April 2003 event as an isolated beating
insufficient to establish past persecution, which as we have said
is in keeping with our precedent.
Even assuming--as the petitioner suggests--that the agency saw
the use of the gun by the Maoists as an implied death threat, this
single threat during the single beating still is not enough to
compel a conclusion of past persecution on this record. Compare
Javed, 715 F.3d at 396 (specific, credible threats compelled a
finding of past persecution where "the Batore group" expressly
threatened to kill the petitioner on many occasions, the threats
were not isolated events and some were accompanied with violence,
his office was demolished "by the Batore-controlled local
government," the same group had shot people with whom the
petitioner was associated, and the threats continued even after he
fled Pakistan), with Vilela v. Holder, 620 F.3d 25, 29 (1st Cir.
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2010) (sufficient evidence supported agency's conclusion that the
repeated, clear death threats over the phone, while the "'most
troubling' aspect" of the case, amounted to harassment rather than
persecution); cf. Amouri, 572 F.3d at 33 (petitioner's experience
involved clear "threats of murder" which "easily qualify as
sufficiently severe harm"); Hincapie, 494 F.3d at 216-17 (series of
threats of murder may amount to past persecution); Un, 415 F.3d at
209-10 (an "explicit death threat" combined with "perhaps one or
more implicit ones" may fall within the meaning of persecution).
Because substantial evidence supports the agency's conclusion
that Thapaliya did not establish past persecution, he is "not
entitled to the rebuttable presumption that his fear of future
persecution is well-founded." Anacassus, 602 F.3d at 21 (citing 8
C.F.R. § 208.13(b)(1)(I)).
B. Well-Founded Fear of Future Persecution
Without the rebuttable presumption, Thapaliya is left to
otherwise "demonstrate not only that [he] harbors a genuine fear of
future persecution but also that [his] fear is objectively
reasonable." Id. (alterations in original) (internal quotation
marks omitted). On this record, the evidence does not compel a
conclusion that any genuine subjective fear of future persecution
that Thapaliya harbors is an objectively reasonable one.
Thapaliya did not leave Nepal until August 2004, over a year
after the April 2003 event. He suffered no additional injuries or
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threats during that time. His family members, including his father
as the initial target of the Maoists, have remained in Nepal and
have not suffered any harm or threats since April 2003, though the
Maoists apparently took control of the Nepalese government in 2008.
"We have often echoed that the fact that close relatives continue
to live peacefully in the alien's homeland undercuts the alien's
claim that persecution awaits his return." Lobo v. Holder, 684
F.3d 11, 19 (1st Cir. 2012) (alterations omitted) (internal
quotation marks omitted); see Decky, 587 F.3d at 112-13; Ravix, 552
F.3d at 46; Santosa v. Mukasey, 528 F.3d 88, 93 (1st Cir. 2008);
Sipayung v. Gonzales, 491 F.3d 18, 20-21 (1st Cir. 2007). As such,
substantial evidence supports the Board's decision regarding the
lack of a well-founded fear of future persecution, and so we affirm
the denial of asylum.
III. Conclusion
Thapaliya's petition for review is denied.
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