Ram Bahadur Gurung v. Loretta Lynch

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A205-873-679 Copies to all parties and the district court/agency. [999888856].. [16-1002]

Appeal: 16-1002

Doc: 29

Filed: 07/15/2016

Pg: 1 of 5

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1002

RAM BAHADUR GURUNG,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.

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

Submitted:

June 28, 2016

Decided:

July 15, 2016

Before NIEMEYER, FLOYD, and THACKER, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Dilli Raj Bhatta, BHATTA LAW & ASSOCIATES, New York, New York,
for Petitioner.
Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Anthony C. Payne, Assistant Director, Raya
Jarawan,
Office
of
Immigration
Litigation,
UNITED
STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 16-1002

Doc: 29

Filed: 07/15/2016

Pg: 2 of 5

PER CURIAM:
Ram

Bahadur

Gurung,

a

native

and

citizen

of

Nepal,

petitions for review of an order of the Board of Immigration
Appeals

(Board)

judge’s

(IJ)

withholding

dismissing

order

of

his

denying

removal,

Against Torture (CAT).

appeal

his

and

from

the

applications

protection

under

immigration
for

the

asylum,

Convention

For the reasons set forth below, we deny

the petition for review.
Gurung bears the burden of establishing his eligibility for
relief from removal.
(4th Cir. 2013).

See Hui Pan v. Holder, 737 F.3d 921, 927

To be eligible for asylum, Gurung must show

that he cannot return to Nepal because he has a well-founded
fear of persecution on account of a protected ground.
Gurung

can

meet

his

burden

by

showing

he

See id.

suffered

past

persecution or has a well-founded fear of future persecution.
See id.

If Gurung demonstrates past persecution, he is entitled

to a rebuttable presumption that he has a well-founded fear of
persecution.

See Djadjou v. Holder, 662 F.3d 265, 272 (4th Cir.

2011).

Attorney

The

General

may

rebut

this

presumption

by

demonstrating by a preponderance of the evidence that “[t]here
has been a fundamental change in circumstances such that the
applicant no longer has a well-founded fear of persecution in
the

applicant’s

country

of

nationality.”

8

C.F.R.

§ 208.13(b)(1)(i)(A) (2016); Essohou v. Gonzales, 471 F.3d 518,
2

Appeal: 16-1002

520

Doc: 29

(4th

Filed: 07/15/2016

Cir.

2006).

If

presumption,

Gurung

must

persecution

despite

the

Pg: 3 of 5

the

Attorney

establish
changed

a

General

rebuts

well-founded

country

the

fear

conditions.

of
See

Mapouya v. Gonzales, 487 F.3d 396, 412 (6th Cir. 2007).
Gurung, like all aliens, faces a higher burden of proof to
establish his entitlement to withholding of removal because he
must show “a clear probability of persecution on account of a
protected ground.”
marks omitted).
proof

for

removal.

Djadjou, 662 F.3d at 272 (internal quotation
Thus, if Gurung fails to meet his burden of

asylum,

he

is

also

ineligible

withholding

of

Id.

The scope of our review is narrow.
926.

for

Hui Pan, 737 F.3d at

We will affirm so long as the decision “is not manifestly

contrary to law,” id. (internal quotation marks omitted), and is
supported by substantial evidence in the record considered as a
whole, INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

We 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.”

Id.

at

483-84;

see

also

8

U.S.C. § 1252(b)(4)(B) (2012).
We conclude that substantial evidence supports the finding
that

the

Attorney

General

proved

by

a

preponderance

of

the

evidence that there was a fundamental change in circumstances
such

that

Gurung

no

longer

has
3

a

well-founded

fear

of

Appeal: 16-1002

Doc: 29

Filed: 07/15/2016

persecution.

Pg: 4 of 5

The evidence shows that the 2013 elections were a

success for the National Congress Party (NCP) and a defeat for
the Maoists.
Cir.

2000)

See, e.g., Kumar v. INS, 204 F.3d 932, 934 (9th
(free

and

fair

elections

that

included

alien’s

political party can overcome the well-founded fear presumption).
The Maoists’ penchant for terror and human rights abuses was
diminished as evidenced by the large election turnout despite
the

Maoists’

efforts

to

prevent

the

election,

and

the

split

within the Maoist party, resulting in some members supporting
democracy.

See, e.g., Hoxhallari v. Gonzales, 468 F.3d 179,

185-86 (2d Cir. 2005) (fall of Communist Party in Albania and
resurgence

of

Democratic

country conditions).
the

changes

to

Party

was

a

substantial

change

in

Gurung failed to establish that, despite

Nepal,

he

still

had

a

well-founded

fear

of

persecution.
We

also

conclude

that

substantial

evidence

supports

the

finding that Gurung was not entitled to protection under the
CAT.

To qualify for CAT relief, a petitioner bears the burden

of proof of showing “it is more likely than not that he or she
would

be

removal.”

tortured

if

removed

to

the

proposed

8 C.F.R. § 1208.16(c)(2) (2016).

country

of

To state a prima

facie case for CAT relief, a petitioner must show that he or she
will be subject to “severe pain or suffering, whether physical
or mental . . . by or at the instigation of or with the consent
4

Appeal: 16-1002

Doc: 29

Filed: 07/15/2016

Pg: 5 of 5

or acquiescence of a public official or other person acting in
an official capacity.”
substantial

evidence

government,

which

instigate,

consent,

8 C.F.R. § 1208.18(a)(1) (2016).
supports

is

the

headed

by

acquiesce,

or

finding
the

NCP,

turn

a

that
is

the
not

blind

Here,

Nepalese
going

eye

to

to
the

possibility that Gurung may be tortured.
Accordingly, we deny the petition for review.

We dispense

with oral argument because the facts and legal contentions are
adequately

presented

in

the

materials

before

this

court

and

argument would not aid the decisional process.
PETITION DENIED

5