Min Gurung v. Eric Holder, Jr.

Case: 13-60883 Document: 00512820968 Page: 1 Date Filed: 10/30/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60883
United States Court of Appeals
Fifth Circuit
FILED
MIN KUMAR GURUNG, October 30, 2014
Lyle W. Cayce
Petitioner Clerk
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A201 254 577
Before STEWART, Chief Judge, and JONES and HIGGINSON, Circuit
Judges.
PER CURIAM:*
Petitioner Min Kumar Gurung (“Gurung”) petitions this court for review
of the Board of Immigration Appeals' (“BIA”) decision affirming the
Immigration Judge's (“IJ”) denial of his petition for asylum under 8 U.S.C.
§ 1158(b)(1)(A) & (B)(i), withholding of removal under 8 U.S.C. § 1231(b)(3)(A),
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 13-60883
and relief under the Convention Against Torture (“CAT”). For the following
reasons, we DENY the petition.
In December 2010, Min Kumar Gurung, a native and citizen of Nepal,
was admitted to the United States as a nonimmigrant with authorization to
remain until March 28, 2011. He overstayed his authorization and was served
a Notice to Appear (“NTA”) charging that he was subject to removal.
Gurung admitted the factual allegations in the NTA and conceded
removability, but he filed an application for asylum, withholding of removal,
and protection under the Convention Against Torture (“CAT”). Gurung’s
claims were based on his testimony—which the IJ found credible—that he had
been the victim of violence and extortion by Maoists in Nepal.
Gurung testified that after he had returned to Nepal from working in
Malaysia, the Maoists began demanding money and political support. He also
testified that in January of 2006, he was beaten “a little bit” after rejecting
demands for payment and his political support. Beginning in February 2007,
Gurung began working in Qatar, but his family continued to receive demands
for money from the Maoists. On September 10, 2010, Gurung visited his family
in Nepal and received a letter from the Maoists demanding payment and
political support. On October 4, 2010, Gurung was kidnapped and beaten by
Maoists for refusing their demands. He left Nepal for Spain five days after his
kidnappers left him on the side of a road. Gurung asserts that the Maoists had
been motivated by his involvement with the Nepali Congress (“NC”), a pro-
democracy political party.
STANDARD OF REVIEW
This court only reviews the order of the BIA and will consider the
underlying decision of the IJ only if it had some impact upon the BIA’s decision.
Sharma v. Holder, 729 F.3d 407, 411 (5th Cir. 2013). The BIA’s factual
determination that an alien is ineligible for asylum is reviewed under the
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substantial evidence standard. Id. Under that standard, this court will not
reverse the BIA’s decision unless the evidence not only supports a contrary
conclusion, but compels it. Majd v. Gonzales, 446 F.3d 590, 594 (5th Cir. 2006).
“The petitioner has the burden of showing that the evidence is so compelling
that no reasonable factfinder could reach a contrary conclusion.” Orellana-
Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012) (internal quotation marks
and citation omitted).
DISCUSSION
Gurung has essentially waived all arguments on appeal by inadequately
briefing his asylum claim and failing entirely to address the district court’s
rulings on relief under CAT and withholding of removal. 1
The Federal Rules of Appellate Procedure require an appellant’s brief to
contain “argument, which must contain … appellant’s contentions and the
reasons for them, with citations to the authorities and parts of the record on
which the appellant relies.” Fed. R. App. P. 28(a)(8)(A). In this circuit, “[a]
party that asserts an argument on appeal, but fails to adequately brief it, is
deemed to have waived it.” United States v. Scroggins, 599 F.3d 433, 446 (5th
Cir. 2010) (citation omitted).
In order to be eligible for asylum, Gurung must qualify as a refugee.
Sharma, 729 F.3d at 411 (citing 8 U.S.C. § 1158(b)(1)(A), (B)(i)). An alien
qualifies as a refugee if he (1) is outside of his country and is unable or
unwilling to return to, or avail himself of the protection of, that country
because of persecution or a well-founded fear of persecution and
(2) demonstrates that his “race, religion, nationality, membership in a
particular social group, or political opinion was or will be at least one central
1By completely failing to address the CAT and withholding of removal issues, Gurung
abandoned the issues on appeal. Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).
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reason for the persecution.” Orellana-Monson, 685 F.3d at 518 (citing 8 U.S.C.
§ 1158(b)(1)(B)) (emphasis omitted) (internal quotation marks omitted). In
2005, Congress added the “one central reason” language through the REAL ID
Act to increase the nexus requirement. Shaikh v. Holder, 588 F.3d 861, 864
(5th Cir. 2009).
It is arguable whether Gurung’s brief even addressed the nexus
requirement, an essential element of his asylum eligibility. The BIA denied
asylum based, in part, on Gurung’s failure to show he was persecuted on
account of his political opinion. Gurung’s brief makes only two arguments:
(1) Gurung’s experiences amount to persecution; and (2) a political group
qualifies as a particular social group. The latter is another protected ground,
parallel to “political opinion,” and the former is only one element of asylum
eligibility. In addition to showing that he fits within a protected ground and
suffered harm rising to the level of persecution, Gurung must also establish
that he has met the nexus requirement: that his protected ground was at least
“one central reason” for his persecution. Gurung concludes Part I—the portion
of the brief arguing that he suffered harms that met the definition of
persecution— with a short discussion that could be read as a nexus argument.
There is no indication to the reader that a new element is being discussed or
any other explanation of the relationship between that information and the
content that had preceded it. If that short discussion is not a nexus argument,
then Gurung has waived the nexus issue by failing to brief it. Yohey, 985 F.2d
at 224–25.
Even if Gurung’s brief is construed as addressing nexus, the issue has
still been inadequately briefed. Briefs must include an “argument, which must
contain … appellant’s contentions and the reasons for them, with citations to
the authorities and parts of the record on which the appellant relies.” Fed. R.
App. P. 28(a)(8)(A). Briefs are inadequate if they fail to cite any relevant case
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law from this court and fail to apply the proper test for the disputed issue. See
e.g., U.S. v. Skilling, 554 F.3d 529, 568 n.63 (5th Cir. 2009). Gurung’s brief
neither cites nor applies the correct test for this issue. Since the passage of the
REAL ID Act, 8 U.S.C. § 1158(b)(1)(B) has defined the nexus requirement in
terms of the protected ground being at least “one central reason for persecuting
the applicant.” Shaikh, 588 F.3d at 864. As the only two cases cited by
Gurung’s brief were decided before the passage of the REAL ID Act, the brief
fails to address the “central reason” standard. Moreover, the question whether
a protected ground was at least one central reason for the persecution is highly
factual. Gurung’s brief fails to include a single record citation indicating there
is a sufficient nexus between his political opinions and his persecution. Given
these omissions, Gurung has inadequately briefed the “one central reason”
issue. 2
Even were we to overlook the deficiencies of his brief, Gurung’s petition
would still be denied on the merits. Under the substantial evidence standard,
this court will only reverse a BIA ruling if the evidence not only supports a
contrary conclusion, but compels it. The record in this case does not compel
the conclusion that Gurung’s persecution was on account of his political
opinion. First, any harm suffered by Gurung for refusing to join the Maoists
cannot support an asylum application. See I.N.S. v. Elias-Zacarias, 502 U.S.
478, 482, 112 S. Ct. 812, 816 (1992) (holding that forced recruitment by
guerillas was not persecution based on victim’s political beliefs). The only
harms otherwise contained in the record are the Maoists’ extortion attempts
and the related violence, but the record does not compel a finding that
Gurung’s political opinions were one central reason for the Maoists’ extortion.
2 Underscoring the inadequacy of the briefing, Gurung chose not to submit a reply
brief even after Respondent argued for waiver in its response brief.
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The record contained evidence that extortion was commonplace across the
country and that the Maoists targeted civilians who had recently returned
from work abroad. Further, the record showed that even though Gurung had
been politically active for a number of years, he only began facing extortion
attempts after he returned from working in Malaysia. Therefore, the record
does not compel reversal of the BIA.
Accordingly, the petition for review of the Board of Immigration Appeals
decision is DENIED.
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