     Case: 13-60125      Document: 00512493443         Page: 1    Date Filed: 01/08/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit

                                                                                     FILED
                                    No. 13-60125                               January 8, 2014
                                  Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
KAL BAHADUR GHARTI-MAGAR,

                                                 Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A087 997 062


Before DAVIS, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM: *
       Kal Bahadur Gharti-Magar, a native and citizen of Nepal, petitions this
court for review of an order of the Board of Immigration Appeals (BIA), which
dismissed his appeal of an immigration judge’s (IJ) decision to deny him
asylum, withholding of removal, and relief under the Convention Against
Torture (CAT). He contends that in Nepal, he was persecuted by Maoists on
the basis of his political opinion and fears that he will suffer persecution on the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. R. 47.5.4.
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                                   No. 13-60125

basis of his political opinion or imputed political opinion if he is returned. We
review the BIA’s order and will consider the underlying decision of the IJ only
if it influenced the BIA’s determination. Sharma v. Holder, 729 F.3d 407, 411
(5th Cir. 2013). We review the factual findings, including whether an alien is
entitled to asylum, for substantial evidence, and will reverse only if the record
compels a different finding. Id.
      To show that he is eligible for asylum, Gharti-Magar has the burden of
establishing that he is a refugee, meaning, as relevant here, that he has
suffered past persecution or has a well-founded fear of future persecution in
Nepal on the basis of his political opinion or imputed political opinion. See
8 U.S.C. §§ 1101(a)(42)(A); 1158(b)(1)(B)(i); Sharma, 729 F.3d at 411; Thuri v.
Ashcroft, 380 F.3d 788, 792 (5th Cir. 2004). Past persecution involves harm
caused by the government or forces that the government is unable or unwilling
to control. Tesfamichael v. Gonzales, 469 F.3d 109, 113 (5th Cir. 2006). He
must show that his political opinion “‘was or will be at least one central reason
for persecuting’ him.” Sharma, 729 F.3d at 411. He must also establish a
nexus between his political opinion and the persecution, meaning that he must
demonstrate through direct or circumstantial evidence that the persecutors
knew of his political opinion and persecuted him or will likely persecute him
because of it. Sharma, 729 F.3d at 412.
      Gharti-Magar contends that he suffered past persecution when Maoists
ambushed his police convoy, threatened him and forced him to quit the police
force, threatened to kill him if he did not support them, and demanded that he
turn over money that he earned while working for the United Nations. He
further argues that the Maoists targeted him because of his affiliation with the
National Democratic Party (NDP), a rival political party.




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                                  No. 13-60125

      The record does not compel a finding that Gharti-Magar suffered past
persecution. As for the ambush and the Maoists’ threats while he was in the
police force, Gharti-Magar admitted that he was not affiliated with a political
party and was not politically active while serving as a member of the police.
Nothing suggests that he was specifically targeted for any particular reason,
much less on the basis of his political opinion or imputed political opinion. Nor
has Gharti-Magar shown that the evidence compels a conclusion that the
Maoists’ threats and extortion attempts against him after he resigned from the
police force amounted to past persecution. Though threats of violence along
with evidence that the threats will be carried out may be sufficient to constitute
persecution, see Tamara-Gomez v. Gonzales, 447 F.3d 343, 348-49 & n.8 (5th
Cir. 2006), Gharti-Magar and his family apparently lived in his village
unharmed for three years after he left the police force, Gharti-Magar testified
that his brother-in-law recently reported to him that his family was doing fine,
and Gharti-Magar reported to an asylum officer that his family was not in
danger. As Gharti-Magar points out, he also testified on cross-examination
that his wife had been beaten by that Maoists, but he made no mention of this
beating in his asylum application or any of his supporting documents,
including a letter that he submitted detailing the basis for his claims. In light
of all of the evidence, the record does not compel a conclusion that the Maoists
were inclined to carry out the threats against him in such a way that the
threats amounted to past persecution.
      Substantial evidence also supports the BIA’s determination that Gharti-
Magar’s political opinion was not the impetus behind the Maoists’ decision to
threaten him. Gharti-Magar’s testimony and the statements in his letter
showed that the Maoists recruited him because of his expertise in police
transport and demanded that he turn over money he had earned working for



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                                  No. 13-60125

the United Nations. Coercive recruitment by itself, does not rise to the level of
persecution. Sharma, 729 F.3d at 412. Moreover, the record does not compel
the conclusion that in attempting to extort money from Gharti-Magar, the
Maoists were motivated by Gharti-Magar’s support of the NDP rather than
their knowledge that he had recently earned a hefty sum working for the
United Nations.
      Even if the Maoists’ conduct was not sufficient to rise to the level of past
persecution, Gharti-Magar contends that he established a well-founded fear of
future persecution.     An alien establishes a well-founded fear of future
persecution if he demonstrates a subjective fear of persecution that is
objectively reasonable. Zhao v. Gonzales, 404 F.3d 295, 307 (5th Cir. 2005).
To prove that his fear is objectively reasonable, as relevant here, he can show
either that he would be singled out for persecution or that in his country there
is a pattern or practice of persecution of a group of persons on the basis of their
political opinion and that he is a member of the group such that his fear is
reasonable. Id.
      Gharti-Magar argues that the Maoists have a pattern or practice of
targeting their political enemies, but the country reports that he cites explain
that the Maoists targeted vast portions of the population, including businesses,
journalists, nongovernmental organizations, bus drivers, and ethnic Tibetans
as well as political opponents. In any event, the evidence does not compel a
finding that the Maoists are aware of his political affiliation and activities.
      According to Gharti-Magar, if he returns to Nepal, the Maoists will
impute to him an anti-Maoist political opinion based on his past refusal to join
their organization. However, the evidence does not compel this determination.
In the immigration court, Gharti-Magar explained that the Maoists were
interested in him based on his background working in police transport and



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                                 No. 13-60125

most recently because of a large sum of money that he earned. Moreover, there
was no evidence that the Maoists’ carried out any of their threats against him
during the years that he refused to comply with their demands.
      Because substantial evidence supports the denial of asylum, Gharti-
Magar cannot meet the higher burden for showing eligibility for withholding
of removal. See Dayo v. Holder, 687 F.3d 653, 658-59 (5th Cir. 2012). As for
Gharti-Magar’s argument that he will be tortured upon his return to Nepal
warranting CAT relief, at most the evidence established that authorities would
ignore the Maoists’ efforts to harm him, but he presented no evidence that
Nepalese officials would be sufficiently involved in the Maoists’ conduct to
show eligibility for this relief. See Tamara-Gomez, 447 F.3d at 350-51.
      Finally, Gharti-Magar contends that the BIA erred in upholding the IJ’s
denial of a continuance, a decision that we review for abuse of discretion and
will uphold unless it is “capricious, racially invidious, utterly without
foundation in the evidence, or otherwise so aberrational that it is arbitrary
rather than the result of any perceptible rational approach.” Cabral v. Holder,
632 F.3d 886, 889-90 & n.2 (5th Cir. 2011). Gharti-Magar’s counsel did not
explain why the four previous continuances that he received were insufficient
to prepare his case. Thus, there was no abuse of discretion in declining to find
that Gharti-Magar established good cause for the request. See Ali v. Gonzales,
440 F.3d 678, 680 (5th Cir. 2006). Moreover, though Gharti-Magar argues
generally that an expert and additional time to prepare would have helped his
case, he does not specify what an expert would have testified to or what specific
additional testimony would have been elicited if counsel had more time to
prepare and thus cannot show actual prejudice that materially affected the
outcome of his case. See In re Sibrun, 18 I. & N. Dec. 354, 356-57 (BIA 1983).




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                               No. 13-60125

Accordingly there was no abuse of discretion in denying Gharti-Magar’s motion
for a continuance.
      Gharti-Magar’s petition for review is DENIED.




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