Rabinder Balami v. Attorney General United State

Filing

NOT PRECEDENTIAL OPINION Coram: GREENAWAY JR., COWEN Circuit Judges, and PADOVA, Senior District Judge. Total Pages: 14. Judge: PADOVA Authoring. *The Honorable John R. Padova, Senior United States District Judge for the Eastern District of Pennsylvania, sitting by designation.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-1528
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RABINDER BALAMI,
Petitioner
v.
ATTORNEY GENERAL UNITED
STATES OF AMERICA,
Respondent
______________
Petition for Review of an Order of
the Board of Immigration Appeals
(Agency No. A208-920-974)
Immigration Judge: Honorable Leo A. Finston
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Submitted Under Third Circuit L.A.R. 34.1(a)
October 27, 2017
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Before: GREENAWAY, JR., COWEN, Circuit Judges, and PADOVA, Senior
District Judge.*
(Opinion Filed: December 4, 2017)

*

The Honorable John R. Padova, Senior United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.

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OPINION**
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PADOVA, Senior District Judge.
Rabinder Balami petitions for review of a decision and order of the Board of
Immigration Appeals (“BIA”) dismissing his appeal from the decision of the Immigration
Judge (“IJ”) that denied his applications for asylum, withholding of removal under the
Immigration and Nationality Act (“INA”), and protection under the Convention Against
Torture (“CAT”). For the reasons that follow, we will deny the petition for review.
I.
Balami is a native and citizen of Nepal, who entered the United States without
proper documentation on January 28, 2016. The Department of Homeland Security
commenced removal proceedings on February 16, 2016. Seeking relief from removal,
Balami filed applications for asylum, withholding of removal, and relief under the CAT,
asserting that members of the Maoist Party in Nepal had persecuted him on account of his
affiliation with the Nepali Congress Party.
Balami testified under oath before an IJ and submitted supporting documentation.
He testified that he was born in Nepal in 1984 and lived there for most of his life. In
2012, he was followed by individuals who asked him to join the Maoist Party and had to

**

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
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run away from them. The next year, he was again asked about joining the Maoist Party,
this time by individuals who approached him while he was working at a restaurant.
When he told these individuals that he was not interested in joining the Maoists, they got
angry, one hit him in the head with a beer bottle, one threw a bottle at his feet, and
another grabbed him by the neck. They then threatened to kill Balami if they saw him
again. Balami testified that he went to a medical clinic for injuries he sustained in that
attack and received stitches in his knee. Several months after this incident, when Balami
was working at a different restaurant in another town, he got a feeling that someone was
following him, but never actually saw anyone. Then, in June of 2015, Balami was out
walking in yet another town in Nepal when two armed members of the Maoist Party
approached him. One grabbed him by the neck from behind, but Balami ran away, and
the Maoists chased him with their guns. Three months later, Balami left for the United
States. While he was traveling to the United States, a member of the Maoist Party called
his parents and threatened them. In support of this assertion, Balami’s father, brother,
and wife submitted affidavits stating that a Maoist called and demanded either a donation
or that Balami join the Maoist Party and threatened to take “severe action” if the demands
were not met.
After considering all of the evidence presented, the IJ denied Balami’s
applications and ordered his removal to Nepal. Although the IJ found that Balami was
not credible, he also analyzed the evidence under the assumption that Balami was
credible. Upon doing so, the IJ concluded that Balami had not sustained his burdens of
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proof applicable to asylum, withholding of removal under the INA, and relief under the
CAT. Balami appealed the IJ’s decision and order, and the BIA dismissed the appeal.
While the BIA declined to reach the IJ’s determination that Balami was not credible, it
agreed with the IJ’s alternative determination that, even if Balami was presumed to be
credible, he had not sustained his applicable burdens of proof. Balami filed a timely
petition for review.
II.
We have jurisdiction to review the BIA’s final order of removal pursuant to 8
U.S.C. § 1252(a). Where, as here, “the BIA both adopts the findings of the IJ and
discusses some of the bases for the IJ’s decision, we have authority to review the
decisions of both the IJ and the BIA.”1 He Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d
Cir. 2004) (citations omitted).
Under the INA, the Attorney General may grant asylum to any alien who
demonstrates that he meets the definition of a “refugee.” 8 U.S.C. § 1158(b)(1)(A). A
refugee is defined as a person unable or unwilling to return to his country “because of
persecution or a well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group or political opinion.” 8 U.S.C. § 1101(a)(42)(A).
Accordingly, an asylum applicant may demonstrate that he qualifies for asylum by

We do not, however, review issues in the IJ’s decision that the BIA did not
reach. Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009). Thus, like the BIA, we
will assume that Balami was a credible witness.
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establishing either past persecution or his well-founded fear of future persecution. See id.
The applicant must also establish that the acts of persecution were “committed by the
government or forces the government is either unable or unwilling to control.” Garcia v.
Att’y Gen., 665 F.3d 496, 504 (3d Cir. 2011) (quoting Sukwanputra v. Gonzales, 434 F.3d
627, 637 (3d Cir. 2006)).
To establish a right to mandatory withholding of removal under the INA, an
applicant must show that there is a “clear probability” that he will be persecuted when
returned to his country. Chen, 376 F.3d at 223 (citations omitted). This is a more
rigorous standard than that applicable to asylum and, thus, “an alien who fails to establish
that he . . . has a well-founded fear of persecution, so as to be eligible for a grant of
asylum, necessarily will fail to establish the right to withholding of removal [under the
INA].” Id. (citing Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003)).
On appeal, we review the factual findings, including findings concerning past
persecution and fear of future persecution, only to determine if they are supported by
substantial evidence. Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir. 2004). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Kibinda v. Att’y Gen., 477 F.3d 113, 119 (3d Cir. 2007) (quoting
Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998)). Thus, under our narrow standard
of review, “[t]he administrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Shardar, 382 F.3d at 323
(quoting 8 U.S.C. § 1252(b)(4)(B)). We review the BIA’s legal conclusions de novo.
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Mendoza-Ordanez v. Att’y Gen., 869 F.3d 164, 169 (3d Cir. 2017) (citation omitted).
III.
Balami argues that the BIA erred in dismissing his appeal, which challenged the
denial of his applications for asylum, withholding of removal under the INA, and relief
under the CAT. Specifically, Balami argues that the BIA erred in affirming the IJ’s
conclusions that he had not established past persecution, a well-founded fear of future
persecution, a nexus to a protected ground under the INA, or that his alleged persecution
was committed by forces that the Nepalese government was unable or unwilling to
control. He further argues that the BIA erred in affirming the IJ’s conclusion that he had
not established an entitlement to relief under the CAT, because he failed to establish that
it was more likely than not that he would be tortured if returned to Nepal.
A.
To establish past persecution, an applicant for asylum must establish that he
suffered treatment akin to “threats to life, confinement, torture, [or] economic restrictions
so severe that they constitute a threat to life or freedom.” Kibinda, 477 F.3d at 119
(quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)). Thus, “persecution refers only
to ‘severe’ conduct.” Id. (quoting Fatin, 12 F.3d at 1240). An asylum applicant must
also establish that “one central reason” for the persecution he encountered was “race,
religion, nationality, membership in a particular social group, or political opinion,” i.e.,
that there is a nexus between the harm suffered and a protected ground under the INA. 8
U.S.C. § 1158(b)(1)(B)(i).
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“Severe conduct” that amounts to persecution “does not encompass all treatment
our society regards as unfair, unjust or even unlawful or unconstitutional.” Kibinda, 477
F.3d at 119 (quoting Fatin, 12 F.3d at 1240). Rather, the conduct must be “extreme,” not
merely offensive, and it must cause a severe injury. Id. at 119-20 (quoting Fatin, 12 F.3d
at 1243). And where the alleged persecution is grounded on threats, it is not sufficient to
establish that the threats were “sinister and credible.” Chavarria v. Gonzalez, 446 F.3d
508, 518 (3d Cir. 2006). Instead, the threats must be “highly imminent or concrete” and
“so menacing as to cause significant actual ‘suffering or harm.’” Id. at 518 (quoting Li v.
Att’y Gen., 400 F.3d 157, 164 (3d Cir. 2005)).
Here, the IJ found that Balami’s evidence of a single physical attack, being chased
by Maoists, and verbal threats did not rise to the level of persecution, and the BIA agreed.
In reaching this conclusion, both the IJ and BIA relied on this Court’s decision in Kibinda
v. Attorney General of the United States, 477 F.3d 113 (3d Cir. 2007), which concluded
that an alien’s mistreatment in prison that resulted in a physical injury that left a scar, but
required only a few stitches, did not amount to persecution in the absence of additional
evidence of severity. Id. at 119-20.
Balami now argues that the IJ and the BIA both erred in relying on Kibinda,
noting that his physical injury, unlike Kibinda’s, involved an intentional infliction of
harm, and that he, unlike Kibinda, experienced additional harassment on other occasions.
The decision in Kibinda, however, in no way rested on the state of mind of Kibinda’s
harassers and, thus, the fact that Kibinda’s injury may have been inflicted unintentionally
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while Balami’s was intentionally inflicted is a factual distinction that is inconsequential
to our severity analysis. Moreover, we find no reversible error in the BIA’s conclusion
that the IJ correctly found that the 2013 physical attack, together with the armed chase
and threats, did not rise to the level of past persecution. Indeed, the threatening chase and
oral threats, none of which resulted in actual physical harm, simply were not so imminent
or menacing as to support a finding of persecution. Accordingly, the record does not
compel a conclusion that Balami’s encounters with the Maoists were so severe as to
constitute extreme conduct that amounted to persecution as is required to prevail on an
asylum claim grounded on past persecution, and we reject Balami’s argument to the
contrary.
Balami also challenges the determination that he did not establish past persecution
because he did not establish a nexus to a protected ground under the INA. Where, as
here, an applicant claims that he was persecuted on account of a political opinion, he
must show that he was harmed due either to an actual political opinion or an imputed
political opinion. Espinosa-Cortez v. Att’y Gen., 607 F.3d 101, 108 (3d Cir. 2010) (citing
Lukwago v. Ashcroft, 329 F.3d 157, 181 (3d Cir. 2003)). An applicant’s claim grounded
on an actual political opinion must “(1) specify the political opinion on which he . . .
relies, (2) show that he . . . holds that opinion, and (3) show that he . . . would be
persecuted or has a well-founded fear of persecution based on that opinion.” Fatin, 12
F.3d at 1242. Where an applicant proceeds based on an imputed political opinion, the
court may grant asylum “where the motives and perspective of the persecutor
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demonstrate that the persecution was on account of a belief attributed to the alien, even
where the alien did not overtly subscribe to that belief.” Chavarria, 446 F.3d at 516
(citing Desir v. Ilchert, 840 F.2d 723, 728 (9th Cir. 1988)).
Here, the IJ concluded that Balami had not established the requisite nexus, noting
that Balami claimed that the alleged persecution was on account of his “political
opinion,” but disavowed that he held any specific political opinion, and failed to establish
that the Maoists imputed a particular political opinion to him. The BIA found no clear
error in these determinations.
Balami does not argue that the record before the IJ conclusively established that he
was persecuted on account of a political opinion. Rather, he argues that, because he was
pursuing asylum pro se, the IJ had an affirmative duty to develop a more complete record
by asking more probing questions. He contends that such questioning “could have
revealed” more about the Maoists’ motivations in pursuing him and, more particularly,
could have revealed that the Maoists imputed a political opinion to him. (Balami Br. at
23.)
However, in spite of Balami’s pro se status, he retained the burden of proving his
eligibility for asylum. 8 C.F.R. § 208.13(a). While “an IJ has a duty to develop an
applicant’s testimony,” Toure v. Att’y Gen., 443 F.3d 310, 325 (3d Cir. 2006), and the
INA requires the immigration judge to “interrogate, examine and cross-examine the
alien,” 8 U.S.C. § 1229a(b)(1), we conclude, upon reviewing the record, that the IJ
appropriately developed Balami’s testimony here. Indeed, the IJ questioned Balami at
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length, attempting to clarify and draw out his testimony. Moreover, the IJ explicitly
asked Balami why he believed the Maoists were interested in recruiting him, and Balami
responded that he did not know. While Balami also testified that his grandfather was
involved in the Congress Party and had been displaced as a result of problems with the
Maoists, this testimony did not demand further development from the IJ because Balami
never asserted that the Maoists who approached him knew his grandfather or imputed his
grandfather’s political opinions to him. Under these circumstances, we conclude that the
IJ adequately discharged any duty to inquire as to the Maoists’ motivations, and we reject
Balami’s argument to the contrary.
We thus affirm the determination that Balami has not established the requisite
nexus between his alleged persecution and his actual or imputed political opinion.
Accordingly, for this reason and because substantial evidence supports the conclusion
that Balami failed to establish severe conduct that amounted to persecution, we will deny
Balami’s petition insofar as it challenges the determination that he was not statutorily
eligible for asylum based on past persecution.
B.
As noted above, an applicant can also establish an entitlement to asylum if he can
establish a well-founded fear of future persecution. See 8 U.S.C. §§ 1101(a)(42)(A),
1158(b)(1)(a). To establish such a fear, the applicant must show that he has a subjective
fear of future persecution and that the fear is objectively reasonable. Lukwago, 329 F.3d
at 175 (citing Abdilie v. Ashcroft, 242 F.3d 477, 495-96 (3d Cir. 2001)). To meet the
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objective reasonableness prong, the applicant must show either that there is a reasonable
possibility that he will be singled out individually for persecution, or that there is a
“pattern or practice of persecution” against those sharing his political opinion in his home
country. 8 C.F.R. § 208.13(b)(2)(iii).
Here, the IJ found that Balami’s fear of future persecution was not objectively
reasonable because the evidence showed that the Maoists had not harmed his immediate
family members who remained in Nepal and there was no evidence in the record that the
Maoists are presently persecuting individuals in Nepal. See, e.g., Lie v. Ashcroft, 396
F.3d 530, 537 (3d Cir. 2005) (“[W]hen family members remain in petitioner’s native
country without meeting harm, and there is no individualized showing that petitioner
would be singled out for persecution, the reasonableness of a petitioner’s well-founded
fear of future persecution is diminished.” (citations omitted)). He therefore determined
that Balami had not established a well-founded fear of future persecution. The BIA
affirmed the IJ’s determination for the reasons provided by the IJ.
Balami argues that substantial evidence does not support the IJ’s determination
that his fear of being singled out for persecution was not objectively reasonable because
there was evidence in the record that Maoists (1) are a violent group, (2) repeatedly
targeted him, and (3) told his parents that they would take severe action against him if he
returned to the country. In essence, Balami disagrees with the IJ’s interpretation and
weighing of the evidence. However, contrary to Balami’s argument, the record simply
does not compel the conclusion that Balami’s fear of persecution was objectively
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reasonable because it clearly demonstrates that Balami’s immediate family has avoided
any harm since he left the country and there is no record evidence that the Maoists are
currently persecuting members of the Nepali Congress Party.2 Accordingly, substantial
evidence supports the conclusion that Balami had not established a well-founded fear of
future persecution. We will therefore deny Balami’s petition insofar as it challenges the
denial of his application for asylum based on fear of future persecution.
C.
Having concluded that the record does not compel a conclusion that Balami has
established extreme conduct amounting to past persecution, a nexus to a protected ground
under the INA, or an objectively reasonable fear of future persecution, and that Balami
has therefore failed to establish his eligibility for asylum, we also conclude that the BIA
properly denied the withholding of removal under the INA. Indeed, “[i]f [an applicant] is
unable to satisfy the standard for asylum, he necessarily fails to meet the standard for
withholding of removal under [the INA].” Lukwago, 329 F.3d at 182. We will therefore
deny Balami’s petition insofar as it challenges the denial of his application for
withholding of removal under the INA.
D.
Where an alien seeks protection under the CAT, he must show that it is “more

Balami also challenges the IJ’s conclusion that he did not establish eligibility for
asylum because he failed to demonstrate that the Nepalese government was unwilling or
unable to control the Maoists. We need not reach this alternative basis for denying
asylum, however, because we affirm the denial of asylum on other grounds.
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likely than not” that he “would be tortured if removed to the proposed country of
removal.” Kibinda, 477 F.3d at 123 (quoting Sevoian v. Ashcroft, 290 F.3d 166, 174-75
(3d Cir. 2002)); 8 C.F.R. § 1208.16(c)(2). “For an act to constitute torture . . . , it must
be: (1) an act causing severe physical or mental pain or suffering; (2) intentionally
inflicted; (3) for an illicit or proscribed purpose; (4) by or at the instigation of or with the
consent or acquiescence of a public official who has custody or physical control of the
victim; and (5) not arising from lawful sanctions.” Auguste v. Ridge, 395 F.3d 123, 151
(3d Cir. 2005). The IJ found that Balami had not demonstrated that that it was more
likely than not that he would suffer treatment that would meet the legal definition of
torture if he were returned to Nepal, and the BIA found no clear error in that finding.
Balami argues that the IJ’s finding was not supported by substantial evidence. He
again emphasizes that Maoist individuals attacked him with a beer bottle and asserts that
the Maoists have a history of engaging in torture that Nepalese security officials
disregard. However, the evidence on which Balami relies simply does not compel a
conclusion that it is more likely than not that Balami will be personally subjected to
conduct causing severe pain or suffering with the acquiescence of government officials if
he is returned to Nepal. Rather, there is substantial evidence to support the IJ’s
conclusion that Balami has not met his burden of establishing a likelihood of being
subjected to torture. We will therefore deny Balami’s petition insofar as it challenges the
denial of his application for relief under the CAT.
IV.
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For the reasons set forth above, Balami has failed to show that the BIA erred in
denying his requests for asylum, withholding of removal, and/or protection under the
CAT. We will therefore deny Balami’s petition for review in its entirety.

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