Kumar Kami v. Eric Holder, Jr.

Case: 12-60921 Document: 00512372826 Page: 1 Date Filed: 09/13/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 13, 2013
No. 12-60921
Summary Calendar Lyle W. Cayce
Clerk
KUMAR BAHADUR KAMI,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A094 964 952
Before DeMOSS, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
Kumar Bahadur Kami, a native and citizen of Nepal, petitions for review
of the decision of the Board of Immigration Appeals denying his application for
asylum, withholding of removal, and relief under the Convention Against
Torture (CAT). Kami argues that the harm he suffered at the hands of Maoists
constituted persecution; that this persecution was based on his affiliation with
the Congress Party and on the opposition to the Maoist party’s policies that was
imputed to him based on his political affiliation; that he has shown a well-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-60921 Document: 00512372826 Page: 2 Date Filed: 09/13/2013
No. 12-60921
founded fear of persecution in Nepal; and that relocation within Nepal is
unreasonable in light of the Maoist party’s presence in the national government.
Therefore, he contends, he has established his eligibility for asylum. He further
argues that he established his eligibility for withholding of removal and relief
under the CAT.
The evidence indicated that Kami, who was active in the local branch of
the Congress Party, was kidnapped by Maoists while planning to approach them
to work out a compromise. He was held with a senior local party leader, who
was beaten and whose toenails the Maoists attempted to remove. Kami injured
himself by falling on a tree branch. Kami was released the following day after
he agreed to the Maoists’ terms, and he treated his injury with stitches and
painkillers. This harm was not so extreme as to constitute persecution. See
Eduard v. Ashcroft, 379 F.3d 182, 187-88 (5th Cir. 2004); Abdel-Masieh v. U.S.
INS, 73 F.3d 579, 584 (5th Cir. 1996). Regardless of the Maoists’ motivations,
Kami cannot demonstrate past persecution. See Eduard, 379 F.3d at 188.
The testimony indicated that Kami fled from the Bagalung District in 2002
and moved to Kathmandu in order to avoid compliance with the conditions of his
release from Maoist captivity. He was accused of plotting with the Nepali army,
was ordered to surrender to the Maoists, and was ordered to pay a 200,000 rupee
fine. Kami testified that Maoists visited his mother with the letter containing
the Maoist order against him and that his uncles sent him a letter about Maoist
threats. However, Kami lived unmolested in Kathmandu until December of
2007, and his family was living there at the time of his hearing. Moreover,
although the 2009 Human Rights Report from the State Department indicated
that Maoists in some areas of the country expected that orders issued before the
dissolution of shadow governmental structures would be enforced, the record
does not indicate that Maoists in the Bagalung District made any effort to
enforce the order it issued shortly after Kami left town during the time Kami
resided in Kathmandu or after the Maoists moved into the Nepali government.
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No. 12-60921
The evidence does not compel a finding that Kami could not reasonably locate
internally within Nepal. See Eduard, 379 F.3d at 189.
The standard of proof for withholding of removal is “more stringent” than
the standard for asylum claims. Mikhael v. INS, 115 F.3d 299, 306 (5th Cir.
1997). To be eligible for withholding of removal, the alien must “demonstrate a
clear probability of persecution if returned to his home country” on account of
the same grounds. Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).
Because Kami cannot satisfy the standard to obtain asylum, he also cannot
satisfy the standard to obtain withholding. See Efe v. Ashcroft, 293 F.3d 899,
906 (5th Cir. 2002).
Under the CAT, an alien must show it is more likely than not that he will
suffer torture, as opposed to mere persecution, if he is removed to his home
country. Id. at 907. In Kami’s case, the same facts supporting the finding that
he does not have a reasonably founded fear of persecution also support a finding
that he is unlikely to be tortured should he be returned to Nepal.
PETITION FOR REVIEW DENIED.
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