Hem Oli v. Eric Holder, Jr. , 588 F. App'x 640 ( 2014 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 16 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HEM GAJADHAR OLI, No. 13-70671
Petitioner, Agency No. A088-590-473
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2014**
Before: LEAVY, FISHER, and N.R. SMITH, Circuit Judges.
Hem Gajadhar Oli, a native and citizen of Nepal, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual
findings. Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th Cir. 2008). We deny in part
and grant in part the petition for review, and we remand.
The record does not compel the conclusion that Oli’s untimely asylum
application is excused by changed circumstances. See 8 C.F.R. § 1208.4(a)(4); see
also Ramadan v. Gonzales, 479 F.3d 646, 657-58 (9th Cir. 2007) (per curiam). We
reject Oli’s contention that the agency’s analysis of changed circumstances was
insufficient. Thus, we deny the petition as to Oli’s asylum claim.
Substantial evidence supports the BIA’s denial of Oli’s CAT claim because
he failed to show it is more likely than not that he would be tortured if returned to
Nepal. See Zheng v. Holder, 644 F.3d 829, 835-36 (9th Cir. 2011). Thus, we deny
the petition as to Oli’s CAT claim.
With respect to withholding of removal, substantial evidence does not support
the BIA’s finding that the harm Oli suffered in Nepal did not rise to the level of
persecution, see Ndom v. Ashcroft, 384 F.3d 743, 751 (9th Cir. 2004) (concluding
the cumulative effect of harms the petitioner suffered rose to the level of
persecution), nor does it support the BIA’s rejection of Oli’s claim of future
persecution on the basis that his family remains in Nepal without harm, because they
are not similarly situated, see Zhao, 540 F.3d at 1031 (“the well-being of others ... is
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only relevant when those others are similarly situated to the petitioners”). Thus, we
grant the petition as to Oli’s withholding of removal claim and remand for further
proceedings consistent with this disposition. See INS v. Ventura, 537 U.S. 12,
16-18 (2002) (per curiam).
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
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