Wangdi Sherpa v. Holder

FILED
NOT FOR PUBLICATION MAY 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WANGDI SHERPA; KIPPA SHERPA, No. 11-70479
Petitioners, Agency Nos. A099-783-519
A099-783-520
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 14, 2013 **
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
Wangdi Sherpa and Kippa Sherpa, natives and citizens of Nepal, petition for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing their
appeals from an immigration judge’s decision denying their applications for
asylum, withholding of removal, and relief under the Convention Against Torture
*
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).
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial
evidence factual findings. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.
2009). We deny in part and grant in part the petition for review, and we remand.
Petitioners contend they established past persecution based on incidents that
occurred while Wangdi was working as a trekking guide, an incident in which
people threatened his parents, and an incident that occurred at petitioners’
restaurant. Substantial evidence supports the BIA’s finding that petitioners failed
to establish a nexus to a protected ground with regard to the trekking incidents and
the threat to Wangdi’s parents, see Parussimova v. Mukasey, 555 F.3d 734, 740
(9th Cir. 2009) (“[t]he Real ID Act requires that a protected ground represent ‘one
central reason’ for an asylum applicant’s persecution”), and its finding that
petitioners failed to establish the restaurant incident rose to the level of
persecution, see Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc)
(persecution is an “extreme concept marked by the infliction of suffering or harm”)
(internal quotations omitted). Apart from arguing they established past
persecution, petitioners do not otherwise challenge the agency’s finding that they
failed to establish a well-founded fear of persecution. Accordingly, petitioners’
asylum claims fail.
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Because petitioners failed to establish eligibility for asylum, they necessarily
failed to meet the more stringent standard for withholding of removal. See Zehatye
v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).
Finally, petitioners contend that the BIA failed to analyze their CAT claim
properly. Because it is unclear whether the BIA independently assessed the record
evidence with regard to petitioners’ CAT claim, we are unable to conduct a
meaningful review. See Kamalthas v. INS, 251 F.3d 1279, 1282-84 (9th Cir. 2001)
(remanding for consideration of record evidence supporting CAT claim because
“claims for relief under the Convention are analytically separate from claims for
asylum . . . and withholding of removal”); Cardoza-Fonseca v. INS, 767 F.2d
1448, 1455 (9th Cir. 1985), aff'd on other grounds, 480 U.S. 421 (1987) (stating
that “in order for us properly to review the Board’s determination, we must
understand the basis for its decision and how it arrived at the findings underlying
that decision,” and remanding for clarification of the Board’s opinion) (internal
citation omitted). Thus, we grant the petition with respect to petitioners’ CAT
claim, and we remand for further proceedings consistent with this disposition. See
INS v. Ventura, 537 U.S. 12, 16-18 (per curiam) (2002).
Each party shall bear its own costs for this petition for review.
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PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
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