Neelam Sijapati v. Eric Holder, Jr.
UNPUBLISHED OPINION FILED. [13-60033 Affirmed ] Judge: CDK , Judge: LHS , Judge: JEG Mandate pull date is 05/05/2014 [13-60033]
Date Filed: 03/12/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
March 12, 2014
Lyle W. Cayce
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A087 925 093
Before KING, SOUTHWICK, and GRAVES, Circuit Judges.
Neelam Sijapati, a native and citizen of Nepal, petitions for review of the
decision of the Board of Immigration Appeals (BIA) that dismissed her
application for asylum and withholding of removal. Sijapati does not challenge
or seek review of the BIA’s determination regarding any claim for protection
under the Convention Against Torture. She has therefore waived review of that
determination. See Hongyok v. Gonzales, 492 F.3d 547, 551 n.5 (5th Cir. 2007).
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 03/12/2014
In her only issue on appeal, Sijapati argues that she has shown a wellfounded fear of future persecution in Nepal based on her political opinion and
membership in a particular social group, the Nepal Student Union (NSU), which
opposed the Communist Party of Nepal (the Maoists). The BIA determined that
she had failed to establish a well-founded fear of future persecution on account
of her membership in the NSU.
We review the BIA’s decision and the decision of the immigration judge to
the extent that it influenced the BIA. See Ontunez-Tursios v. Ashcroft, 303 F.3d
341, 348 (5th Cir. 2002). Whether an alien has demonstrated eligibility for
asylum or withholding of removal is a factual determination reviewed for
substantial evidence. Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). To
establish her eligibility for asylum, Sijapati is required to demonstrate past
persecution or a well-founded fear of future persecution on account of her race,
religion, nationality, membership in a particular social group, or political
opinion. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444-45 (5th Cir. 2001). “To
establish a well-founded fear of future persecution, [she] must demonstrate a
subjective fear of persecution, and that fear must be objectively reasonable.”
Zhao v. Gonzales, 404 F.3d 295, 307 (5th Cir. 2005) (internal quotation marks
and citation omitted).
Sijapati concedes that substantial evidence supports the BIA’s
determination that she did not suffer past persecution in Nepal. Accordingly, a
well-founded fear of future persecution is not presumed.
See 8 C.F.R.
§ 208.13(b)(1); Shehu v. Gonzales, 443 F.3d 435, 436 (5th Cir. 2006). On the
issue of whether Sijapati has a well-founded fear of future persecution, the
record does not compel the conclusion that Sijapati established eligibility for
asylum. See Chen, 470 F.3d at 1134. The BIA properly concluded that Sijapati
failed to establish that she has a well-founded fear of persecution based on her
opposition to Maoists in Nepal. Sijapati did not demonstrate that her fear of
future persecution was objectively reasonable. Indeed, she was previously
Date Filed: 03/12/2014
threatened by Maoists and once beaten by people she assumed were Maoists,
but nevertheless returned to Nepal in 2008 and was not harmed. Sijapati also
failed to show that anyone in Nepal is currently seeking her out to harm her.
See Tesfamichael v. Gonzales, 469 F.3d 109, 116 (5th Cir. 2006) (Denigration,
threats, and harassment do not constitute persecution). In addition, Sijapati’s
parents have continued to live in Nepal without being harmed. This weakens
her claim of likely future persecution. See Eduard v. Ashcroft, 379 F.3d 182, 193
(5th Cir. 2004) (citing Matter of A-E-M, 21 I. & N. Dec. 1157, 1160 (BIA 1998)).
Having failed to satisfy the requirements for asylum, Sijapati has also failed to
satisfy the requirements for withholding of removal under the Immigration and
Nationality Act. See Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002). The
petition for review is DENIED.
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