Bhandari v. Garland ( 2021 )

Case: 20-60423 Document: 00515860651 Page: 1 Date Filed: 05/13/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 13, 2021
No. 20-60423
Summary Calendar Lyle W. Cayce
Clerk
Subin Bhandari,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A201 753 164
Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Subin Bhandari, a native and citizen of Nepal, petitions for review of
a decision by the Board of Immigration Appeals (BIA). He argues that the
BIA erred in upholding the immigration judge’s (IJ’s) adverse credibility
finding regarding portions of his testimony and in dismissing his appeal of the
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-60423 Document: 00515860651 Page: 2 Date Filed: 05/13/2021
No. 20-60423
IJ’s denial of his applications for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). Bhandari also
moves for a stay of removal.
We generally review only the BIA’s decision; the IJ’s decision is
reviewed only if, as here, it influenced the BIA. See Singh v. Sessions, 880
F.3d 220, 224 (5th Cir. 2018). Credibility findings, as well as determinations
that an alien is not eligible for asylum, withholding of removal, or CAT relief,
are factual findings. Morales v. Sessions, 860 F.3d 812, 817 (5th Cir. 2017);
Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005). We review such factual
findings for substantial evidence, requiring the alien to show that “the
evidence was so compelling that no reasonable factfinder could conclude
against it.” Wang v. Holder, 569 F.3d 531, 536-37 (5th Cir. 2009) (quote at
537).
Here, the BIA upheld the IJ’s adverse credibility finding with regard
to Bhandari’s testimony that the Maoists who had attacked him in December
2017 repeatedly looked for him at his parents’ home thereafter and advised
his parents in November 2018 that they were going to kill him. The IJ found
implausible Bhandari’s assertion that the attackers must have identified his
parents and their homeplace through a network of spies. The BIA added that
Bhandari had not identified any evidence of such a Maoist spy network in the
country conditions documents and that Bhandari’s supporting affidavits
simply parroted his testimony.
The IJ and the BIA were entitled to consider the inherent plausibility
of Bhandari’s and his witnesses’ statements and whether his testimony was
consistent with other record evidence, such as country conditions
documentation. See Avelar-Oliva v. Barr, 954 F.3d 757, 763-64 (5th Cir.
2020). Given that the IJ’s adverse credibility finding was not clearly
unreasonable under the totality of the circumstances, the BIA’s decision to
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No. 20-60423
uphold the finding was supported by substantial evidence. See Morales, 860
F.3d at 817.
The BIA acted properly in ruling that Bhandari’s two prior incidents
of verbal harassment and his single beating, which resulted in bruises and
swelling that were treated at home, did not constitute past persecution. See
Gjetani v Barr, 968 F.3d 393, 395-96, 399 (5th Cir. 2020) (indicating that
three death threats and a single assault with a belt and a sharp metal object,
resulting in knee and toe injuries requiring stitches, did not rise to the level
of persecution); Eduard v. Ashcroft, 379 F.3d 182, 187-88 (5th Cir. 2004)
(indicating that a verbal taunt and cuts on the head after being struck by a
rock did not constitute persecution). The BIA also upheld the IJ’s
determination that Bhandari was not likely to suffer more extreme harm
amounting to persecution upon returning to Nepal. As the BIA added,
Bhandari failed to carry his burden of showing that relocation within Nepal
was not a reasonable means to avoid future persecution by his attackers, who
were private actors not sponsored by the government. See 8 C.F.R.
§ 1208.13(b)(3)(iii)-(iv). Contrary to Bhandari’s contention, the IJ expressly
considered the necessary regulatory factors by citing country conditions
evidence in deciding that internal relocation was reasonable. See
§ 1208.13(b)(3). Thus, a reasonable factfinder would not be compelled to
conclude that Bhandari demonstrated a well-founded fear of future
persecution in Nepal. See Wang, 569 F.3d at 536-37.
An alien seeking withholding of removal must show a clear probability
of persecution in his native country based on a protected ground. Faddoul v.
INS, 37 F.3d 185, 188 (5th Cir. 1994). Since Bhandari has failed to
demonstrate the well-founded fear of persecution required for asylum, he has
necessarily also failed to make the higher showing required for withholding
of removal. See id.; see also Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004).
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An applicant for CAT relief must show a likelihood that “he would be
tortured if returned to his home country.” Zhang, 432 F.3d at 344-45; see also
8 C.F.R. § 1208.18(a)(1) (defining torture to include the intentional
infliction, by a person acting in an official capacity, of severe pain or suffering
for the purposes of punishment, intimidation, or coercion). Here again, since
Bhandari has failed to show a well-founded fear of future harm rising to the
level of persecution, he has likewise failed to satisfy “the higher bar” of likely
torture. See Roy, 389 F.3d at 139-40 (quote at 140) (internal quotation marks
and citation omitted).
In light of the foregoing, the BIA’s factual findings that Bhandari was
not entitled to asylum, withholding of removal, and CAT relief were
supported by substantial evidence. See Wang, 569 F.3d at 536-37. Bhandari’s
petition for review is DENIED, and his motion for a stay of removal is
DENIED as moot.
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