Erdenechuluun Tsermaa v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION
MAY 17 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERDENECHULUUN TSERMAA, No. 13-73632
Petitioner, Agency No. A200-993-606
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 13, 2016**
San Francisco, California
Before: KLEINFELD, IKUTA, and WATFORD, Circuit Judges.
Erdenechuluun Tsermaa, a native and citizen of Mongolia, petitions for
review of an order of the Board of Immigration Appeals (BIA) dismissing his
appeal from a decision denying his application for asylum, withholding of removal,
*
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).
Page 2 of 3
and protection under the Convention Against Torture (CAT). We deny the petition.
1. Substantial evidence supports the BIA’s conclusion that Tsermaa failed
to establish eligibility for either asylum or withholding of removal. Tsermaa
claims that he fears retribution for his role in exposing corruption by the former
deputy director of a coal mine in Mongolia in the wake of a fatal mine collapse.
But the BIA could reasonably conclude that Tsermaa’s alleged whistleblowing
activity did not target “corruption inextricably intertwined with governmental
operation,” Grava v. INS, 205 F.3d 1177, 1181 (9th Cir. 2000), and the record does
not compel the conclusion that the former deputy director’s actions were part of
any institutionalized corruption, see Sagaydak v. Gonzales, 405 F.3d 1035, 1042
(9th Cir. 2005). Prosecutors in Mongolia brought criminal charges against the
former deputy director, and a Mongolian court convicted him and handed down a
prison sentence. Neither the fact that the coal mine was partially state-owned nor
Tsermaa’s allegations regarding the high level of corruption in Mongolia compel a
conclusion contrary to the one the BIA reached. See 8 U.S.C. § 1252(b)(4)(B).
2. Substantial evidence also supports the BIA’s conclusion that Tsermaa
failed to demonstrate eligibility for CAT relief. Nothing in the record supports
Tsermaa’s assertion that he “is likely to be tortured, rather than persecuted,” if
returned to Mongolia. Wakkary v. Holder, 558 F.3d 1049, 1068 (9th Cir. 2009).
Page 3 of 3
None of the violent encounters Tsermaa recounts approach the level of torture as
the CAT and its implementing regulations define that term. See 8 C.F.R.
§ 208.18(a)(1). Tsermaa has also provided no reason to conclude that, if returned
to Mongolia, he would be tortured “by or at the instigation of or with the consent
or acquiescence of a public official or other person acting in an official capacity.”
Id. Tsermaa testified that he was “not afraid of the Mongolian police,” and instead
feared only the former deputy director’s “people” in Mongolia, but the former
deputy director’s previous affiliation with the government no longer appears to
exist, as he was fired in the wake of the government’s successful prosecution.
PETITION DENIED.