Devender Damai v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 16 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEVENDER SINGH DAMAI, No. 17-71730
Petitioner, Agency No. A099-769-294
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 12, 2022**
San Francisco, California
Before: WALLACE, W. FLETCHER, and SANCHEZ, Circuit Judges.
Petitioner Devender Singh Damai, a native and citizen of Nepal who has
resided within the United States since 2005, petitions for review of the Board of
Immigration Appeals’ (“Board”) decision dismissing his appeal from an
Immigration Judge’s order denying his applications for asylum, withholding of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
removal, and protection under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
We review denials of asylum, withholding of removal, and CAT relief for
substantial evidence, meaning that “[t]o reverse the [Board], we must determine
that the evidence not only supports [a contrary] conclusion, but compels it—and
also compels the further conclusion that the petitioner meets the requisite standard
for obtaining relief.” Sanjaa v. Sessions, 863 F.3d 1161, 1164 (9th Cir. 2017)
(internal quotation marks and citation omitted). Substantial evidence supports the
Board’s determination that Damai’s allegations of past harm do not rise to the level
of persecution. See, e.g., Bondarenko v. Holder, 733 F.3d 899, 908–10 (9th Cir.
2013); Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (persecution
more likely to be found where threats are “repeated” and “specific”).
Next, Damai bore the burden of demonstrating he had a well-founded fear of
future persecution and could not avoid that persecution by relocating internally
within the country of removal. 8 C.F.R. §§ 1208.13(b)(2)-(3). The record
establishes that Damai and his family had relocated to Kathmandu for several
months, faced no threats from Maoists, and left only because the rent was high.
Substantial evidence supports the Board’s determination that Damai could avoid
future persecution by relocating internally within Nepal.
Because Damai has not demonstrated entitlement to asylum, his claim for
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withholding of removal necessarily falls away. Davila v. Barr, 968 F.3d 1136,
1142 (9th Cir. 2020) (“An applicant who fails to satisfy the lower standard for
asylum necessarily fails to satisfy the more demanding standard for withholding of
removal, which involves showing by a ‘clear probability’ that the petitioner's life
or freedom would be threatened in the proposed country of removal.”) (citation
omitted).
To qualify for protection under CAT, an applicant must demonstrate that it is
more likely than not the applicant will be tortured by government actors, or
tortured with the acquiescence of government actors, if returned to their country of
origin. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). Substantial evidence supports
the Board’s determination that Damai had not been tortured by any government
actor and he had not shown that any government official would seek to torture him
or “turn a blind eye” to any torture at the hands of a private actor. See Ornelas-
Chavez v. Gonzales, 458 F.3d 1052, 1059 (9th Cir. 2006) (citation omitted).
PETITION DENIED.
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