Chhetri v. Holder , 359 F. App'x 364 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2324
KHEEM BAHADUR KARKI CHHETRI,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: November 24, 2009 Decided: December 29, 2009
Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Visuvanathan Rudrakumaran, LAW OFFICES OF VISUVANATHAN
RUDRAKUMARAN, New York, New York, for Petitioner. Tony West,
Assistant Attorney General, William C. Peachey, Assistant
Director, Ada E. Bosque, 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Unpublished opinions are not binding precedent in this circuit.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:
Kheem Bahadur Karki Chhetri, 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 denial of his requests for asylum,
withholding of removal, and protection under the Convention
Against Torture.
In his petition for review, Chhetri challenges the
finding that he failed to show that either his political opinion
or his membership in a particular social group was “at least one
central reason” for the persecution he allegedly faced in Nepal.
The Immigration and Nationality Act authorizes the Attorney
General to confer asylum on any refugee. 8 U.S.C. § 1158(a)
(2006). It defines a refugee as a person unwilling or unable to
return to his native country “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.” 8 U.S.C. § 1101(a)(42)(A) (2006) (emphasis
added).
Following the passage of the REAL ID Act, asylum
applicants such as Chhetri who filed their applications after
May 11, 2005, must establish that the protected ground asserted
“was or will be at least one central reason for persecuting the
applicant.” REAL ID Act, § 101(a)(3), codified at 8 U.S.C.
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§ 1158(b)(1)(B)(i) (2006). Based on our review of the record,
we find although Chhetri has clearly suffered persecution at the
hands of the Maoists, substantial evidence supports the Board’s
finding that Chhetri failed to establish that the Maoists
targeted him on account of a protected ground, and that they
instead wished to recruit him to their cause. See INS v. Elias-
Zacarias, 502 U.S. 478, 481-83 (1992). We also note that at the
time, country conditions were changing for the better in Nepal,
as the Maoists and the central government were negotiating a
peace agreement. We therefore uphold the denial of asylum
relief.
Additionally, we uphold the denial of Chhetri’s
request for withholding of removal. “Because the burden of
proof for withholding of removal is higher than for asylum--even
though the facts that must be proved are the same--an applicant
who is ineligible for asylum is necessarily ineligible for
withholding of removal under [8 U.S.C.] § 1231(b)(3).”
Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004).
Finally, we find that substantial evidence supports
the finding that Chhetri failed to meet the standard for relief
under the Convention Against Torture. To obtain such relief, an
applicant must establish that “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) (2009). For persecution
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to qualify as torture, it must be “inflicted by or at the
instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.” 8
C.F.R. § 1208.18(a)(1) (2009). Because, at the time, the
Maoists were not part of the government of Nepal, and the
government did not acquiesce in the Maoists’ persecution of
Chhetri, we find that Chhetri failed to make the requisite
showing before the immigration court.
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 the
court and argument would not aid the decisional process.
PETITION DENIED
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