                                                                              FILED
                            NOT FOR PUBLICATION                                DEC 11 2013

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


PHURBA SHERPA,                                   No. 12-71047

              Petitioner,                        Agency No. A200-706-016

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                            Submitted December 4, 2013**
                                Seattle, Washington

Before: O’CONNOR, Associate Justice,*** and TALLMAN and BEA, Circuit
Judges.

       Phurba Sherpa, a citizen and native of Nepal, petitions for review of a final

order of removal from the Board of Immigration Appeals (“BIA”). The BIA

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Sandra Day O’Connor, Associate Justice of the United
States Supreme Court (Ret.), sitting by designation.
reversed an Immigration Judge’s (“IJ”) grant of withholding of removal under the

Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.

§ 1252, and we deny the petition for review.

      First, Sherpa challenges the BIA’s conclusion that he failed to establish that

it was more likely than not that he would be tortured if removed to Nepal. See

8 C.F.R. § 1208.16(c)(2) (requiring a petitioner to prove that it is “more likely than

not that he or she would be tortured” in the country of removal in order to obtain

CAT relief). In determining the probability that a petitioner will be tortured, all

relevant evidence must be considered. Ridore v. Holder, 696 F.3d 907, 912 (9th

Cir. 2012) (citing 8 C.F.R. § 1208.16(c)(3)). But, as here, when the petitioner does

not challenge the prior adverse credibility determination, the CAT claim must be

considered without the discredited testimony, and the remaining evidence alone

must show a likelihood of torture. Shrestha v. Holder, 590 F.3d 1034, 1048–49

(9th Cir. 2010). Evidence relevant to assessing the probability of future torture

includes credible evidence of past torture, consideration as to whether the

petitioner can relocate to a different part of the country for safety, and evidence of

gross violations of human rights in the country of removal. 8 C.F.R.

§ 1208.16(c)(3).




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       Sherpa argues that the BIA erred when it concluded that he was not

previously subjected to mental torture by the Maoists fighting the Nepalese

government. But, after setting aside Sherpa’s discredited testimony, the record

does not compel a finding that Sherpa was subjected to “prolonged” mental harm

due to the threat of imminent death at the hands of Maoist forces. See 8 C.F.R.

§ 208.18(a)(4) (defining “mental torture” as required for CAT relief). The letters

from Sherpa’s relatives and fellow villagers only vaguely describe Sherpa’s

confrontations with the Maoists, where Maoists allegedly threatened Sherpa’s life

and held Sherpa captive but released him after he carried their supplies. Instead,

the letters mechanistically conclude without sufficient factual basis that Sherpa was

“physically and mentally” tortured. Substantial evidence therefore supports the

BIA’s determination that Sherpa did not suffer past mental torture. See Garcia-

Milian v. Holder, 730 F.3d 996, 1000–01 (9th Cir. 2013) (noting that we must

uphold a BIA decision unless the evidence in the record “compels” a contrary

result).

       Sherpa next argues that regardless of whether he demonstrated past torture,

he proved that he was likely to be subjected to future torture. To support this

argument, he points to country reports, a letter he received from the Maoists while

living in Kathmandu, and the medical documents and pictures depicting injuries


                                          3
sustained by his brother and son at the hands of Maoists. Although the country

reports indicate that torture does occur in Nepal, the reports alone do not establish

a sufficiently particularized likelihood that Sherpa would suffer torture. See Dhital

v. Mukasey, 532 F.3d 1044, 1051–52 (9th Cir. 2008) (holding that reports

describing the ongoing struggle between the Nepalese government and the Maoists

do not show petitioner “would face any particular threat of torture beyond that of

which all citizens of Nepal are at risk”). And the other evidence Sherpa relies on

does not demonstrate a probability that he will be tortured if returned to Nepal.

      Letters, photographs, and medical reports from Sherpa’s wife and brother

demonstrate that certain Maoists, namely those from Sherpa’s village, are capable

of violence and may be looking for Sherpa. But these letters establish only a

possibility—as opposed to a probability—that Sherpa would be tortured if returned

to Kathmandu, Nepal. Sherpa’s brother was attacked only when he returned to his

home village, and Sherpa’s son was harassed by Youth Communist League

Maoists from the village while those individuals were in Kathmandu.

      Moreover, the letter from the Maoists that Sherpa received while living with

his uncle in Kathmandu undercuts the likelihood that Sherpa would be tortured if

returned there. That letter, which asks Sherpa to “be present in the [party’s] office

[within one week] . . . [to] confer clarification” about allegations that Sherpa


                                          4
provided information about Maoists to the Nepalese Army was delivered to

Sherpa’s place of residence. Its delivery demonstrates that Maoists knew where to

find Sherpa and yet did not follow through on the letter’s threat to arrest him. This

corresponds to Sherpa’s admission that he was not physically harmed by the

Maoists during the two years he lived in Kathmandu. Substantial evidence in the

record therefore supports the BIA’s conclusion that Sherpa would probably not be

tortured. See Shrestha, 590 F.3d at 1049 (upholding the denial of CAT relief

where a Nepalese citizen failed to show that his experience falls into the category

of “very limited cases” where a person can show that he “faces a risk in his . . .

home area at the hands of the Maoists” (internal quotation marks omitted)).

      Second, Sherpa asserts that the BIA erred in failing to provide a reasoned

explanation for why he was ineligible for temporary deferral of removal under

CAT. Although temporary deferral of removal is available in instances where

withholding of removal is not available, Cole v. Holder, 659 F.3d 762, 770 (9th

Cir. 2011), it still requires an alien to show that it is more likely than not that he

would be tortured if removed, see Edu v. Holder, 624 F.3d 1137, 1145 (9th Cir.

2010). A failure of proof in demonstrating a probability of future torture is

therefore dispositive of both deferral of removal under CAT and withholding of

removal under CAT.


                                            5
      In the present case, the BIA rejected deferral of removal under CAT by

stating the following:

      As the respondent did not appeal the denial of asylum and
      withholding of removal, the material support of terrorist bar only
      precludes his application for protection under the Convention Against
      Torture. Although such bar does not disqualify him from receiving a
      temporary deferral of removal under the Convention Against Torture,
      for the reasons discussed above, the respondent failed to carry his
      burden of proof for such form of relief.

Through this statement, the BIA referred Sherpa to its prior, detailed analysis

concluding that Sherpa was ineligible for withholding under CAT due to

insufficient proof that he would be tortured if he returned to Nepal. This was

sufficient as the BIA is not required to repeat the same analysis twice. Because we

conclude that substantial evidence supports the BIA’s conclusion that Sherpa is

ineligible for all forms of CAT relief due to his failure of proof on the issue of

future torture, we do not address unchallenged, alternative conclusions of the BIA.

      PETITION DENIED.




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