Santos Thapa-Magar v. Eric Holder, Jr.

Filing 920091007

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-1078

SANTOS THAPA-MAGAR, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Submitted:

September 4, 2009

Decided:

October 7, 2009

Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Petition denied by unpublished per curiam opinion.

Visuvanathan Rudrakumaran, LAW OFFICE OF VISUVANATHAN RUDRAKUMARAN, New York, New York, for Petitioner. Tony West, Assistant Attorney General, Carol Federighi, Senior Litigation Counsel, Jem C. Sponzo, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Santos Thapa-Magar, a native and citizen of Nepal,

petitions for review of an order of the Board of Immigration Appeals ("Board") dismissing his appeal from the immigration

judge's order denying his applications for asylum, withholding of removal, and withholding under the Convention Against Torture ("CAT"). Thapa-Magar claims the Board and the immigration judge

erred in finding that he failed to prove that he was persecuted or that he had a well-founded fear of persecution because of either the imputation of his family's political opinion to him or of his membership in his family, a particular social group. He further the claims CAT. judge that In he established entitlement claims to relief the

under

addition, him due

Thapa-Magar process

that

immigration

denied

during

the

hearing

before the immigration judge.

We deny the petition for review.

The Immigration and Nationality Act ("INA") authorizes the Attorney General to confer asylum on any refugee. § 1158(b) (2006). 8 U.S.C.

It defines a refugee as a person unwilling or

unable to return to his native 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[.]" involves the 8 U.S.C. § 1101(a)(42)(A) or threat of (2006). death,

"Persecution

infliction

torture, or injury to one's person or freedom, on account of one 2

of the enumerated grounds . . . ."

Li v. Gonzales, 405 F.3d

171, 177 (4th Cir. 2005) (quoting Kondakova v. Ashcroft, 383 F.3d 792, 797 (8th Cir. 2004), cert. denied, 543 U.S. 1053

(2005)). An alien "bear[s] the burden of proving eligibility for asylum," Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir. 2006); see 8 C.F.R. § 1208.13(a) (2009), and can establish

refugee status based on past persecution in his native country on account of a protected ground, 8 C.F.R. § 1208.13(b)(1)

(2009).

Regardless of past persecution, an alien can establish

a well-founded fear of future persecution on a protected ground. Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir. 2004). The

well-founded fear standard contains both a subjective and an objective component. "The objective element requires a showing

of specific, concrete facts that would lead a reasonable person in like circumstances to fear persecution." Id. at 187-88.

"The subjective component can be met through the presentation of candid, credible, and sincere testimony demonstrating a genuine fear of persecution. . . . [It] [must have] some basis in the reality of the circumstances and [be] validated with specific, concrete facts . . . and it cannot be mere irrational

apprehension[.]"

Li, 405 F.3d at 176 (internal quotation marks

and citations omitted; second and third alteration in original).

3

A

determination

regarding

eligibility

for

asylum

or

withholding of removal is affirmed if supported by substantial evidence on the record considered as a whole. Zacarias, 502 U.S. 478, 481 (1992). INS v. Elias-

Administrative findings of

fact, including findings on credibility, are conclusive unless any reasonable adjudicator would be compelled to decide to the contrary. 8 U.S.C. § 1252(b)(4)(B) (2006). Legal issues are

reviewed de novo, "affording appropriate deference to the BIA's interpretation of the INA and any attendant regulations[.]" This . . .

Lin v. Mukasey, 517 F.3d 685, 691-92 (4th Cir. 2008). court will reverse the Board only if "the evidence

presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." Elias-

Zacarias, 502 U.S. at 483-84; see Rusu v. INS, 296 F.3d 316, 325 n.14 (4th Cir. 2002). On this record, the evidence was not so compelling that no reasonable factfinder would fail to find the requisite fear of persecution. Moreover, Thapa-Magar has not shown that

it is more likely than not that he will be tortured when he returns Finally, to Nepal. See was 8 not C.F.R. denied § 1208.16(c)(2) due process (2009). the

Thapa-Magar

when

immigration judge sustained an objection to a question on the ground that it was asked and answered.

4

Accordingly, dispense with oral

we

deny

the

petition the

for facts

review. and

We legal

argument

because

contentions are adequately presented in the materials before the court and argument would not aid the decisional process. PETITION DENIED

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